LShift Ltd, September 2013
Thank you for using the ‘RabbitMQ Bigwig’ Add-On which is an add-on service provided by LShift Limited (the “Service”).
By using the Service, you (“You”) accept and agree to be bound by the following terms and conditions (the “Agreement”). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the service.
The Agreement is effective between You and LShift Limited. We are a company incorporated in England and Wales with company number 04040033, whose registered office is Hoxton Point, 1st Floor Office, 6 Rufus Street, London N1 6PE (“LShift”). It is effective as of the date You accept this Agreement.
LShift may update or change the Agreement from time to time and recommends that you review the Agreement on a regular basis. You understand and agree that your continued use of the Service after the Agreement has changed constitutes your acceptance of the Agreement as revised.
You acknowledge that if you are using a cloud hosted platform to access the Service that your use of the Service as an “Add-On” is also subject to that platform’s own terms of service and those of associated companies involved in supporting the cloud platform (such as Amazon). If there is a conflict between the Agreement and the cloud platform’s own terms of service, the Agreement shall prevail.
Use of the Service
The Service is accessed via ‘RabbitMQ’ Instances (“Instances”). You are responsible for all activity that takes place on your Instances. You are responsible for keeping the password and other credentials restricting access to your Instances confidential and secure, and are solely responsible and liable for any activities that occur within your Instances and for any harm that you may cause to the Service.
Limitations of Service
You understand and acknowledge that the Service is made available on an “AS IS” and “AS AVAILABLE” basis for the purpose of providing LShift with feedback on the quality and usability of the Service. The Service may contain errors or inaccuracies that could cause failures, including but not limited to data corruption or loss of data from the Service and from peripherals (including, without limitation, servers and computers) connected thereto. In addition, LShift is not obligated to provide any maintenance, technical or other support for the Service. You are responsible for backing up, to your own computer or other device, any data that You store or access via the Service.
Fair Use Policy
You understand that LShift currently provides the Service in a single availability zone and that use of the Service resulting in excessive volumes of data transfer out of the availability zone are not considered “fair use” and can result in the termination of the Service.
You further understand that LShift has no express or implied obligation to You to not introduce a product similar or compatible with the Service. Accordingly, You acknowledge that any research or development that You perform regarding the Service or any product associated with the Service is done entirely at Your own risk.
Changing the Service
LShift reserves the right to modify, suspend or stop the Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to You. In particular, LShift reserves the right to, at its own discretion, charge for the Service and/or enforce data limits on the use of the Service. You agree that LShift shall not be liable to you or any third party for any modification or cessation of the Service. You acknowledge that LShift has no express or implied obligation to provide, or continue to provide, the Service, or any part thereof, now or in the future.
Prohibited Uses of Service
You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the Service (or any part thereof) for any purpose. In addition, You may not access the Service for the purpose of benchmarking or competitive purposes. Your use of the Service must be in accordance with any documentation referred to in connection with use of the Service. You agree that You are responsible for your own conduct and content while using the Service and for any consequences thereof. You agree to use the Service only for purposes that are legal, proper and in accordance with this Agreement and any applicable policies or guidelines. By way of example, and not as a limitation, You agree that when using the Service, You will not, and will not permit users or other third parties, to:
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy, rights under data protection legislation and rights of publicity) of others
- upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful content;
- upload, post, email or transmit or otherwise make available any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless You (or the user posting the content) are the owner of the rights or have the permission of the owner to post such content;
- upload, post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by applicable law, this Agreement, or any applicable policies or guidelines.
- distribute any file posted by another that You know, or reasonably should know, cannot be legally distributed in such manner;
- impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
- restrict or inhibit any other user from using and enjoying the Service;
- use the Service for any illegal or unauthorised purpose;
- remove any copyright, trademark or other proprietary rights notices contained in or on the Service;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or
transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.
If You are located outside of England and Wales, You further agree to comply with Your own local laws regarding online conduct and acceptable content.
Open Source Software
“Open Source Software” means various software components including open source software, that may be part of the Service, each licensed to You under its own applicable license terms and conditions, which can be found in the license file or the corresponding source files for the Software
Reservation of Rights. Subject to the limited rights expressly granted hereunder, LShift reserves all right, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You shall not:
- permit any third party to access the Service,
- create derivative works based on the Service,
- copy, frame or mirror any part or content of the Service, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes,
- reverse engineer the Service, or
- access the Service in order to
- build a competitive product or service, or
- copy any features, functions or graphics of the Service. If You wish to exercise any rights to reverse engineer to ensure interoperability in accordance with applicable law, You must first provide LShift with written notice and all reasonably requested information and permit LShift thirty (30) days to assess your claim and, at LShift’s sole discretion, to make an offer to provide alternatives that reduce any adverse impact on LShift’s intellectual property or other rights.
Ownership of Your Data
Data (including personal data) which we collect from you and how this data is collected is dealt with in our Privacy and Cookies policy
As part of using the Service, you agree to submit comments, suggestions and other feedback regarding your use of the Service. You agree that LShift will be free to use any feedback you provide for any purpose and that LShift shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use, and exploit without restriction, any suggestions, enhancement requests, recommendations or other feedback provided by You.
LShift is constantly innovating in order to provide You with the best possible technology. In order to assist LShift with such innovation, You hereby permit LShift to use anonymous service performance information. You agree that such anonymous service performance information may be used and exploited by LShift without restriction and without compensation.
Information shared with Bigwig/RabbitMQ is subject to the LShift privacy and cookies policy available at http://www.lshift.net/downloads/lshift_privacypolicy.pdf. To opt out of receiving future communications regarding the Service, please follow the opt-out instructions in the LShift privacy and cookies policy.
You agree that LShift, in its sole discretion, may use Your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Website listings (including links to your Website) for the purpose of advertising or publicising Your use of the Service.
You agree to hold harmless and indemnify LShift, and its subsidiaries, affiliates, officers, agents, and employees, advertisers or partners, from and against any third party claim arising from or in any way related to your use of the Service or violation of the Agreement, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and legal fees, of every kind and nature. In such a case, LShift will provide You with written notice of such claim, suit or action.
Disclaimer of Warranties
You expressly understand and agree that:
Nothing in the agreement shall operate to exclude or limit liability for death or personal injury caused by LShift’s negligence or any other matter for which liability cannot be excluded or limited under law.
Subject to clause 6.1, LShift hereby disclaims all warranties of any kind, whether express or implied. LShift gives no warranty that
- the service will meet your requirements,
- the service will be uninterrupted, timely, secure, or error-free,
- the results that may be obtained from the use of the service will be accurate or reliable,
- the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and
any errors in the service will be corrected.
Any material downloaded, uploaded, accessed or otherwise obtained through the service is done at your own discretion and risk and you shall be solely responsible for any damage to your computer system or loss of data that results from such actions.
No advice or information, whether oral or written, obtained by you from LShift or through or from the services shall create any warranty not expressly stated in the agreement.
Limitation of liability
Subject to clause 6.a, you understand and agree that LShift shall not be liable to you for any direct, indirect, incidental, special or consequential damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if LShift has been advised of the possibility of such damages), resulting from:
- the use or the inability to use the service;
- the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service;
- unauthorised access to or alteration of your transmissions or data;
- statements or conduct of any third party on the service; or
- any other matter relating to the service.
Subject to clause 6.a, LShift’s maximum aggregate liability arising out of or in connection with the agreement or any collateral agreement, whether in contract or tort (including in each case negligence) or otherwise shall in no circumstances exceed in aggregate GBP100.
Exclusions and limitations
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of clauses 5 and 6 may not apply to you.
LShift shall not be liable to You for any failure or delay in performing any of its obligations hereunder if such failure or delay is caused by the occurrence of an event of force majeure including, but not limited to, acts of God, war, riot, civil commotion, fire, flood, adverse weather, terrorist action, nuclear, chemical or biological contamination, governmental order, rule or regulation, failure of telecommunications that provide connectivity to the Service or the cloud platform from a public or private network such as the Internet, or a platform’s hosting provider or default of suppliers or subcontractors.
Term and Termination
The term of this Agreement shall commence on the date upon which You agree to the Agreement and shall continue in force thereafter until LShift announces the termination of the Service. Additionally, either party may terminate the Agreement at any time for any reason or no reason by providing the other party written notice thereof.
In the event of any termination or expiration of the Agreement for any reason, Clauses 2, 4, 5, 6, 7, 8, 9, 10, and 11 shall survive termination. Neither party shall be liable to the other party for damages of any sort resulting solely from terminating the Agreement in accordance with its terms.
“Confidential Information” shall mean the Service, all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, planned product features, functionality, performance and software source documents relating to the Service, and other information provided by LShift, whether disclosed orally, in writing, or by examination or inspection, other than information which You can demonstrate
- was already known to You, other than under an obligation of confidentiality, at the time of disclosure;
- was generally available in the public domain at the time of disclosure to You;
- became generally available in the public domain after disclosure other than through any act or omission of You;
- was subsequently lawfully disclosed to You by a third party without any obligation of confidentiality; or
- was independently developed by You without use of or reference to any information or materials disclosed by LShift or its suppliers.
You shall not use any Confidential Information for any purpose other than as expressly authorized under the Agreement. In no event shall You disclose any Confidential Information to any third party. Without limiting the foregoing, You shall use at least the same degree of care that You use to prevent the disclosure of your own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.
The Agreement and the documents referenced herein constitute the entire agreement between You and LShift and govern your use of the Service, superseding any prior agreements between You and LShift. You also may be subject to additional terms and conditions that may apply when You use or purchase certain other LShift services, affiliate services, third-party content or third-party software. There are no third-party beneficiaries to the Agreement.
Governing Law and Jurisdiction
The Agreement and the relationship between You and LShift shall be governed by the laws of England and Wales. You and LShift agree to submit to the personal and exclusive jurisdiction of the English and Welsh courts in relation to any question of construction or interpretation, any dispute or claim of whatever nature or any other matter arising under or in connection with the Agreement.
Waiver and Severability of Terms
The failure of LShift to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
Relationship of the Parties
The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
The section headings in the Agreement are for convenience only and have no legal or contractual effect.