Desktop Service Agreement

Prelude Hosted Desktop Service Agreement

(Last updated December 2019)

This contract is between you and Prelude Software Limited (a company incorporated in England and Wales, company number 02985428 ) whose registered office is at The Enterprise Centre, Tondu, Bridgend CF32 9BS (hereinafter referred to as “Prelude”).

This contract refers to Prelude as “we,” “us,” or “our.” This contract applies to any Prelude Hosted Desktop web site (and their successor sites), services (including pre-release services) and software, including all updates, support, and content. This contract refers to all of these as the “Service.” This contract also covers your use of any additional Prelude services for which you sign up while this contract is in force, unless other terms accompany those services. If so, those terms apply. You represent that you are at least 18 years of age or have attained the age of majority where you live, and that all information you supply is true and correct. Each service may have other posted notices or codes of conduct. All such notices and codes of conduct are incorporated by reference into this contract.

You may only use the Service if you agree to these terms. If you do not agree, do not use the Service. This contract limits our liability and disclaims warranties for the Service to the maximum extent permitted by law. Please read these sections of the contract carefully.

1. When You May Use the Service – If you create an account to use the service, you may start using the service as soon as you have finished the sign–up process. If an account to use the service is created for you, you may start using the service as soon as you are in receipt of the account details. Some parts of the service may not be available right away while they are configured for your use.
2. How You May Use the Service In using the Service, you will –

• comply with all laws,
• comply with any codes of conduct or other notices we provide,
• comply with the Prelude Anti-Spam Policy,
• use only authorised software with the Service and to access the Service,
• keep your password secret, and
• promptly notify us if you learn of a security breach related to the Service.

3. How You May Not Use the Service

In using the Service, you may not:

• use the Service in any way that harms Prelude or its affiliates, resellers, distributors and/or vendors (collectively, the “Prelude parties”), or any customer of a Prelude party,
• engage in, facilitate, or further unlawful conduct,
• damage, disable, overburden, or impair the service (or the networks connected to the service) or interfere with anyone’s use and enjoyment of the service,
• resell or redistribute the service, or any part of the service, unless you have a contract with Prelude that permits you to do so,
• use any portion of the service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (“spam”),
• use any automated process or service to access and/or use the service (such as a BOT, a spider, periodic caching of information stored by Prelude or “meta-searching”), or
• use any unauthorised means to modify or reroute, or attempt to modify or reroute, the service.

Your Host Account You may establish a host account and password for theservice. The service may enable you to have other
people create member accounts and passwords associated with your host account. We call these “client accounts.” You are responsible for all activity under your host account and client accounts.

Client Account Users If you are the user of a client account, then the holder of the host account has full control over your client account. This control includes the right to end the service, close or alter your associated account at any time, and in some cases, to request and receive computer and service use information related to your client account. Any data related to your client account is collected and delivered to the account holder and Prelude. Should your client account be ended by the holder of the host account, then your client account may be transferred to Prelude but different charges may apply.

How We May Change This Contract Prelude may change this contract at any time without notice. If we make a material change to this contract, we will notify you at least 30 days before the change takes place. If you do not agree to the change, you must cancel and stop using the service before the change takes place. If you do not stop using the service, your continued use of the service will be under the changed contract.

Charges and Billing This section applies in all situations in which you pay Prelude directly for a service. If you pay a company other than Prelude for a service, then the charges and billing terms are as stated by that company. Even if you do not pay for the service, you may still incur other charges incidental to using the service; for example, charges for phone or internet access, mobile text messaging, wireless service and other data transmissions.

Payment When you sign up for the service, you will provide a payment method. You confirm that you are authorised to use the payment method. You authorise us to charge you for the service using your payment method and for any paid feature of the service for which you choose to sign up or use while this contract is in force.

Charges You will pay service charges in advance. We may charge you at one time for one or more of your prior billing periods. If we told you that the service will be provided indefinitely or automatically renewed, we may automatically renew your service and charge you for any renewal term.

Updates to your Customer Account You must keep all information in your customer account accurate and current, including your invoice address and any expiration date for your payment method. You may change your payment method at any time. If you tell us to stop using your payment method and do not provide an alternative payment method, we will cancel your service. Your notice to us will not affect charges we submit to your customer account before we reasonably could act on your request.

Trial Period Offers You may receive a limited time of free service or some other trial period offer. Unless we tell you otherwise, if you are participating in any trial period offer, you must cancel the service by the end of the trial period to avoid incurring charges or having your service downgraded to a service for which there is no subscription fee. If you do not cancel your service and we have told you that the service will automatically be converted into a paid subscription at the end of the trial period, then you authorise us to charge your payment method for the service. If we downgrade your service to one for which there is no subscription fee, some of your data may not be available to you and Prelude may delete that data permanently from our servers. You are responsible for taking the necessary steps to back up your data and ensuring that you maintain your primary means of business.

Prices and Price Increases

• The price for the Service excludes taxes, phone and Internet access charges, mobile text messaging, wireless service and other data transmissions, unless stated otherwise. These taxes and charges are your responsibility. Currency exchange settlements are based on your agreement with your payment method provider.
• If there is a specific time length and price for your service offer, then that price will remain in force for that time. When the offer period ends, we will charge you a new price for that service.
• We may change the price of the service from time to time, but we will give you at least 30 days notice before a new price takes effect. If you do not agree to the new price, then you must cancel and stop using the service before the new price takes effect. If your service is on a period basis (for example, monthly or annually), then the new price will start on the date that we indicate.

Service Conversion You may be able to switch your service to a different service. If you do, you authorise us to charge your payment method for any new service charges. If you switch to a service for which we do not charge a subscription fee or for which we charge a lower fee, we may, but are not required to, refund the unused portion of the service charge for the subscription fee service you previously used or the difference in the amount of the service fees. You may not credit any refunds to other services.

Refunds All charges are non-refundable unless expressly stated otherwise, or otherwise provided by law. The costs of any returns will be at your expense, unless otherwise provided by law.

Payments to You To receive a payment, you must promptly provide us with all information we need to make the payment (for example, bank account information for receiving the payment). You must provide us with the information we request before your right to receive payment accrues. You are responsible for the accuracy of the information you provide and any taxes you may incur as a result of receiving a payment. If you receive a payment that was not due to you, we may reverse or seek return of the payment, and you agree to cooperate with us.

Customer Statement; Errors We will provide you with regular customer statements. If you ask us to provide an ad-hoc copy to you, we may charge you an administration fee. If we make an error on your invoice, we will correct it promptly after you tell us and we investigate the charge. You must tell us within 120 days after an error first appears on your invoice. If you do not tell us within this time, we will not be required to correct the error. You release us from all liability and claims of loss resulting from any error that you do not report to us within 120 days after the error first appears on your customer statement. If you do not tell us within this time, we will not be required to correct the error.

Late Payments Except to the extent prohibited by law, we may assess a late charge if you do not pay on time regardless of any disputes you may have raised about your invoice. You must pay these late charges when we invoice you for them. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts. These costs may include reasonable legal fees and costs. We may suspend or cancel your service if you do not pay in full and on time.

Changes to the Service; Cancellation or Termination

• By Prelude We may change the service at any time and for any reason without notice. We may cancel or suspend your service or a portion of your service at any time and for any reason without notice, including if you violate the terms of this contract. If we do, your right to use the service will stop immediately. Cancellation of the service will not change your obligation to pay any charges due on your customer account. If we cancel the service without cause, we will refund the unused portion of your service charge for that period on a pro rata basis.
• By You You may cancel your service at any time for any reason. Certain service offers may require cancellation charges, and you will pay all cancellation charges as specified in the materials describing the offer. Cancellation of the service by you will not alter your obligation to pay all charges made to your customer account.

Data Upon termination or cancellation of the service by you or us for any reason, Prelude may delete your data permanently from our servers. Prelude may move your data to a quarantine area on our servers for a limited period of up to six months to allow you to take the necessary steps to remove your data. You are responsible for taking the necessary steps to remove your data in a format usable by you and ensuring that you maintain your primary means of business.

Waiver of rights and obligations To the extent necessary to implement the termination of this contract, each party waives any right and obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this contract.

Limits On Service Prelude may establish limits on the Service.

For example, we may limit –

• the number of days the service will retain e-mail messages, message board postings and other content that Prelude, you or other users may post or provide,
• the number and size of e-mail messages that you may send or receive through the service,
• the maximum storage space on Prelude’s servers available to you,
• the amount of bandwidth available for traffic to a Web site that we host for you,
• the number of users on your host account or any client accounts,
• how long we retain an inactive host account, which we define as one where you do not sign in to the service for an extended period of time, and
• the number of transactions you can conduct through the service.

If you exceed the published service limits, Prelude reserves the right to cancel your service.

Prelude Does Not Have Editorial Control

Content Prelude, you, your client account users and third parties may be able to post or store materials, including data, documents, information, advertisements, communications, messages and links to third party Web sites (“content”) on the service. The service may include publicly accessible areas, such as a public web site that Prelude hosts for you, a community bulletin board service, shared calendar or other public area that allows you to communicate with others (“public areas of the service”). The service may also include areas to which you can control access by others (“private areas of the service”).

Intellectual property rights Prelude does not sanction or approve the unauthorised use of content protected by copyright and other intellectual property rights. You understand that sharing content that violates others’ copyrights and intellectual property rights violates this contract. You represent and warrant that the use and publication of the content by you and others does not violate the intellectual property rights of any third party. You understand that Prelude may remove content at any time without notice when the content violates this contract or an applicable code of conduct, or when we have a good faith reason to believe it is necessary to do so.

Posting content You understand that Prelude does not control or endorse the content that you and others post or provide on theservice. Prelude doesn’t claim ownership of content that you and others post or provide. By posting or providing content you grant to Prelude and the public (for content posted on public areas of the service), or those members of the public to which you have granted access (for content posted on private areas of the service), free, unlimited worldwide and perpetual permission to –

• use, modify, copy, distribute, and display the content in connection with the service, and
• publish your name with the content.

You also give the public, or those members of the public to which you have granted access, permission to grant these rights to others. You represent and warrant that you have all the rights necessary for you to grant the rights in this section and that the use and publication of the content does not breach any law. Prelude will not pay you for content you post on public areas of the service. This section only applies to legally permissible content and only to the extent that use and publishing of the legally permissible content does not breach the law or is not confidential.

Private areas of the service You understand that certain technical processing of content posted on private areas of the service may be required to –

• store and retrieve the content,
• conform to connecting networks’ technical requirements, or
• conform to the limitations of the service.

Links to third-party Web sites The service may contain links to third-party web sites. These third-party web sites are not under Prelude’s control. If Prelude has included these links in the service, we provide them to you as a convenience only. The inclusion of these links is not an endorsement by Prelude of any third-partyweb site, service or product. Prelude reserves the right to disable links to any third-party web site that you or other customers use or post on the service.

Privacy

Access and Disclosure In order to operate and provide the services, we collect certain information about you. We use and protect that information as described in the Prelude Privacy Policy. In particular, we may access or disclose information about you, including the content of your communications, in order to –

• comply with the law or respond to lawful requests or legal process,
• protect the rights or property of Diamond or our customers, including the enforcement of our agreements or policies governing your use of the services, or
• act when we believe, in good faith, that such access or disclosure is necessary to protect the personal safety of Prelude employees, customers or the public.

You consent to the access and disclosures outlined in this section

Transfer of personal information Personal information collected through the service may be stored and processed in the United Kingdom or any other country or region in which Prelude or its affiliates, subsidiaries, or agents maintain facilities. By using the service, you consent to any such transfer of information outside of your country or region. Prelude abides by the requirements of the Data Protection Act regarding the collection, use, and retention of data. You may read more about transfers of this data in the Prelude Privacy Policy.

Performance and usage data In order to provide you the service, we may collect certain information about service performance, your computer and your service use. We may automatically upload this information from your computer. This data will not personally identify you.

Filtering technology We may use technology or other means to protect the service, protect our customers, or stop you from breaching this contract. Examples include filtering to stop spam and viruses or increase security. These means may hinder your use of the service.

Your privacy practices In using the service, you may be able to collect personal information about third parties through your dealings with such third parties. If you do, you agree to publish a privacy policy and use personal information only as expressly permitted by your privacy policy.

Software

Use If you receive software from us as part of the service, your use of that software is under the terms of the licence for that software. If there is no licence presented to you, then we (or, based on where you live, one of our affiliates) grant you the right to use the software only for the use of the service authorised under this contract. We (or, based on where you live, one of our affiliates) reserve all other rights to the software. Unless we notify you otherwise, your right to use the software ends when your right to use the service terminates or expires. We may disable the software after the date the service ends.

Update We may automatically update the version of the software to update, enhance and further develop the service.

Scope of Licence Copyright and other intellectual property laws and treaties protect the software. The software is licensed, not sold. This contract only gives you some rights to use the software. Prelude reserves all other rights. You will not disassemble, decompile, or reverse engineer any software included in the service, except and only to the extent that the law expressly permits this activity.

Your Dealings with Others If you obtain anything from a third party (including third party offered services) through the service, you understand that your relationship with respect to those things is with the third party directly and not with Prelude. In the event you assert a claim that relates to or implicates your relationship with a third party, you shall only assert such claim against the third party, and you will not assert any such claim against Prelude. You are solely responsible for your dealings with any third party, including –

• delivery of and payment for goods and services,
• processing and verifying orders, payments and other transactions,
• customer support related to orders or transactions (e.g., lost orders, billing disputes, payments, etc.),
• determining, collecting and remitting to the appropriate authority all taxes (if any) arising from or related to such orders or transactions, and
• the purchase and use by you and your client accounts of any third party products and services.

You represent and warrant that –

• the products and services you advertise, sell, and distribute are legal for sale and distribution and do not violate this contract,
• you have all licences necessary to sell, distribute, and advertise the goods and services you offer,
• all sales and advertisements will comply with applicable law, and
• you will comply with all applicable laws and regulations (including privacy laws and regulations that relate to your collection of information from third parties).

Feedback If you give feedback about the service to Prelude, you give to Prelude, without charge, the right to use, share, and commercialise your feedback in any way and for any purpose. You also give to third parties, without charge, any patent rights needed for their products, technologies, and services to use or interface with any specific parts of a Prelude software or service that includes the feedback. You will not give feedback that is subject to a licence that requires Prelude to license its software or documentation to third parties because we include your feedback in them. These rights survive this contract.

Our Notices to You; Your Notices to Us Any notice under this contract by one party to another must be in writing and this expression includes electronic form (e.g. fax and email). This contract is in electronic form. We have promised to send you certain information in connection with the service and we have the right to send you this information in electronic form. There may be other information about the service that the law requires us to send to you. We may send this information to you in electronic form. We may provide required information to you by email at the email address you specified when you signed up for the service. Notices will be deemed given and received on the transmission date of the email. If you do not consent to receive notices electronically, you must cancel the service.

No Warranty Prelude makes no guarantee about the reliability, accuracy, or timeliness of theservice or the results obtained from the service. You understand that the security mechanisms in the service have inherent limitations and that you are responsible for determining that the service meets your needs.

We provide the Service “as-is,” “with all faults,” and “as available.” You bear the risk of using it. To the maximum extent permitted by law, the Prelude parties give no express warranties, guarantees, or conditions. You may have additional rights under your local laws that this contract cannot change. To the extent permitted by law, we exclude any implied warranties or conditions including those of merchantability, fitness for a particular purpose, workmanlike effort, non-infringement, and satisfactory quality.

Liability Limitation You can recover from the Prelude parties only direct damages up to an amount equal to your service charge for one month or the equivalent of £5 UKP (whichever is greater). To the extent permitted by law, you cannot recover any other damages from the Prelude parties, including consequential loss, lost profits, special, indirect, or incidental damages.

This limitation applies to anything related to:

• the service,
• content (including code) on third party Internet sites, third party programs or third party conduct,
• viruses or other disabling features that affect your access to or use of the service,
• incompatibility between the service and other services, software, and hardware,
• delays or failures you may have in initiating, conducting or completing any transmissions or transactions in connection with the service in an accurate or timely manner, and
• claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort.

It also applies even if:

• this remedy does not fully compensate you for any losses, or fails of its essential purpose, or
• Prelude knew or should have known about the possibility of the damages.

Any Claim Must Be Filed Within One Year To the extent permitted by law, any claim related to this contract or the service must be brought within one year. The one-year period begins on the date when the claim first could be filed. It if is not filed, then that claim is permanently barred. This section applies to you and your successors. It also applies to Prelude and its successors and assigns.

Applicable Law and Jurisdiction This Agreement shall be governed by and construed in accordance with the laws of England and Wales. The parties agree that the English and Welsh courts shall have exclusive jurisdiction in any dispute arising out of this Agreement.

Contract Interpretation All parts of this contract apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this contract as written. If this happens, then that part will be replaced with terms that most closely match the intent of the part that we cannot enforce. The rest of this contract will not change. This contract, together with any codes of conduct and other notices we provide, is the entire contract between Prelude and you regarding the service. It supersedes any other contract or statements related to the service. If you have confidentiality obligations related to the service, those obligations remain in force (for example, you may have been a tester for a pre-release version of a service). The section titles in the contract do not limit the other terms of this contract.

Assignment Prelude may assign this contract, in whole or part, at any time without notice to you. You may not assign this contract, or any part of it, to any other party. Any attempt to do so is void. Instead, you may cancel your service. The other party may then establish an account and enter into a contract with us.

Force Majeure Prelude will not be liable for any loss or damage or be deemed to be in breach of this contract due to any event or circumstance beyond its reasonable control, including war, invasion, electrical shortages, terrorist attacks, earthquakes or acts of God.

Notices: Copyright Notice All contents of the service are Copyright Prelude Software Limited and/or its suppliers. All rights reserved.

Respect Copyright Please respect the rights of artists and creators. Content such as music, photos, and video may be protected by copyright. People appearing in content may have a right to control use of their image. You may not share other people’s content unless you own the rights, have permission from the owner, or such sharing is otherwise legal.

Trademark Notice Prelude is a registered trademark of Systems 80 Limited. Any rights not expressly granted and in contravention of any of the terms above can be subject to litigation procedures.