3. Use of and Changes to the Services:
b. You may use the Services only if you have the power to form a contract with Open Access and are not barred under any applicable laws from doing so.
c. The Services may continue to change over time as we refine and add more features and we may modify any content from the Services from time to time.
d. In the event of a material change as set out in clause 3(c), we will provide any user of that aspect of the Services with at least 30 days’ notice prior to taking such action, save where the changes to the Services are the result of (i) minor technical adjustments which can be of no real significance to your use of the Services; (ii) changes required by law; (iii) changes required by necessity (e.g. to ensure the integrity or security of the Services or your data) or (iv) enhancements to the Services to reflect advancements in technology for your benefit, in which case we may not be able to provide you with 30-days prior notice and instead notice may be provided to you after the date of the material change.
e. Open Access shall not increase the price of the Services during the fixed term of this Agreement.
f. The notice referenced in clause 3(d) shall set out the scope of the change and enable you to understand the impact of this change on the delivery of the Services.
g. If you do not agree to the material change made to the Services described in 3(d) above, you may terminate your use of the Services within 30 days of receiving the notice, and should you decide to terminate, you shall be entitled to a refund of fees paid for the unexpired portion of the Fixed Contract Period (please refer to clause 19).
h. It is our intention that any such modification as set out in clause 3(c) would not materially reduce the functionality of the Services, however in the exceptional cases where the functionality is materially affected by the modification, we will phase out the modification over a period of 12 months, ensuring that the Service to you remains unaffected for the duration of your Fixed Contract Period, and shall provide you with a clause 3(d) notice prior to your next renewal date to explain the modification to the Services.
Activation, Your Files and Privacy
5. The Services may be activated in one of two ways. You may commence the use of the Services by uploading your files, or in the case of a purchase from a Retail Outlet, if you have not taken steps to activate the Services in the three months after purchase, the Services will be automatically activated without further reference to you. You will be sent an activation email following activation as long as you have provided us with a valid email address.
9. We may choose to review public content for compliance with our community guidelines, but you acknowledge that Open Access has no obligation to monitor any information on the Services. We are not responsible for the accuracy, completeness, appropriateness, or legality of files, user posts, or any other information you may be able to access using the Services.
10. The Services provide features that allow you to share your files with others or to make your files public. There are many things that users may do with your files (for example, copy it, modify it, re-share it). Please consider carefully what you choose to share or make public. Open Access has no responsibility for that activity.
Software and Updates
13. You are responsible for safeguarding the password that you use on your Open Access account to access the Services (the “Account”) and you agree not to disclose your password to any third party. You are responsible for any activity using your Account, whether or not you authorised that activity. You should immediately notify Open Access of any unauthorised use of your Account.
Your General Responsibilities
14. Files and other content in the Services may be protected by intellectual property rights of others. Please do not copy, upload, download, or share files unless you have the right to do so. Open Access reserves its right to delete files (without notice to you) where it has a reasonable belief that you do not have the right to copy, upload, download or share such files. You, not Open Access, will be fully responsible and liable for what you copy, share, upload, download or otherwise use while using the Services. You must not upload spyware or any other malicious software to the Services.
15. You, and not Open Access, are responsible for maintaining and protecting all of your files and understand that unless clearly stated otherwise, Open Access is providing you with a backup service and will not be liable for any loss or corruption to the files that you backup arising from your actions. There are no additional costs and expenses for restores using the Open Access system, however should you request a custom restore outside of the Open Access system, any additional costs and expenses will be explained to you prior to the custom restore, and you will be responsible for the discharge of same.
16. If your contact information, or other information related to your Account, changes, you must notify us promptly and keep your information current.
Limitation of Liability
a. death or personal injury caused by our negligence;
b. fraud or fraudulent misrepresentation;
c. any breach of your statutory rights under the Consumer Rights Act 2015; and
d. defective products under the Consumer Protection Act 1987, as may be amended from time to time.
19. You can terminate your Services at the end of your Fixed Contract Period by contacting us by phone between 9am – 6pm (GMT) Monday – Friday on (+44) 01202 935047 by providing at least one month notice prior to the end of your Fixed Contract Period. If you are a consumer within your free trial period or the first 14 days of any renewal period, please see Section 27 for additional termination rights. Fees paid by you to us prior to your decision to stop using our Services will not be refunded to you, unless your decision to stop using our Services follows a change in:
a. the content of the Services as set out in clause 3;
c. the Fees as set out in clause 30;
in which cases your fees shall be refunded pro-rata for the unexpired portion of your Fixed Contract Period.
20. We reserve the right at our discretion to not permit you to renew your use of the Services by providing you with at least 4 weeks’ notice prior to the end of the Fixed Contract Period.
a. use the Services in any way that would cause us legal liability or be deemed a use for an illegal purpose;
b. use the Services in such a manner that has the effect of disrupting others’ use of the Services;
d. act in conflict with a court order, or our providing the Services to you is in breach of a court order;
e. represent a danger to the best interests of other customers or third-parties;
f. exceed your Usage Limit repeatedly, or exceed your Usage Limit on one occasion when that Usage Limit represents the highest available limit;
g. fail to disclose the number of devices on which you are running Open Access Backup, be they multidrive devices, network-attached (NAS) hard drives, or external drives (collectively “External Storage Devices”) or otherwise;
h. directly or indirectly reverse engineer, decompile, disassemble, modify, reproduce or create derivative works of the Services or manipulate Services in any manner not specified by us;
i. are found to have used the Services to store, backup or distribute material protected by intellectual property rights (including copyright) of a third-party unless you own or have appropriate rights to such material;
j. engage in activity that damages or is likely to damage our tangible or intangible assets; or
k. otherwise act in breach of the terms of our Acceptable Use Policy.
22. If we suspend or terminate your use, we will use commercially reasonable efforts to work with you to retrieve your files at no additional fee.
a. the European Commission Online Dispute Resolution platform for online resolution; or
b. the English courts, or if you live in Northern Ireland or Scotland, the Northern Irish or Scottish respectively. If you do not live in these jurisdictions, then depending on your homeplace, you may also be entitled to bring a claim in your home court.
Free Trial Period and Statutory Cancellation Right
25. Services are provided to all consumers on a free trial basis (duration of at least 14 days, to be confirmed to you at sign-up), and payment will be taken for the first Fixed Contract Period when the applicable free trial period ends, and not when you enter your billing details (which will be required prior to the commencement of the free trial period).
26. The first renewal date for the contract shall be deemed to be the Fixed Contract Period plus the applicable free trial period, thereafter the renewal dates shall occur on the expiry of the applicable Fixed Contract Period.
27. If you wish to invoke your statutory right under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 to cancel your contract during the free trial period or for 14 days after each renewal date, may do so by calling (+44) 01202 935047 between 9am – 6pm (GMT) Monday – Friday, or alternatively you can download, complete and return this form by email or fax to us, at any time prior to the end of the free trial period.
28. If you do not cancel your contract prior to the end of the free trial period or during the 14 days cancellation periods as set out in clause 27, the fees for the first Fixed Contract Period will become due.
29. All fees payable by you for the Services shall be in accordance with the scale of fees and rates published from time to time by us on our web site (the “Pricing Structure”), and shall be due and payable for provision of the Services in advance of each Fixed Contract Period.
30. The Pricing Structure is determined by pre-agreed usage limits with you (“Usage Limit”). We reserve the right to alter the Pricing Structure, including ceasing to offer elements of the Services as provided for in clause 3. The current Pricing Structure will always be posted on our website and where a significant change (meaning a change that would lead to you paying more for the Services) is made to the Pricing Structure, we will provide you with notice at least 30 days prior to that new Pricing Structure being applied to the Services we provide you. By continuing to access or use the Services after receiving such notice, you agree to be bound by the revised Pricing Structure as and from the start of the next Fixed Contract Period. If you do not agree to the new Pricing Structure, you can then notify us that you want to discontinue use of the Services.
32. All fees for our Services are due in advance and your contract will automatically renew on the expiry of the Fixed Contract Period, at which point fees for the following Fixed Contract Period become payable. Open Access shall provide you with notice of the renewal at least 30 days prior to the expiry of the Fixed Contract Period. If you choose to pay by credit or debit card then you authorise Open Access to debit your card with the fees due, and to avoid interruptions in the Services caused by rejected credit or debit card charges, Open Access reserves the right to update your credit or debit card details (such as expiration dates) where this is not prohibited by law. YOU UNDERSTAND AND AGREE THAT OPEN ACCESS IS ENTITLED TO OBTAIN SUCH UPDATED CARD DETAILS, STORE THEM AND USE THEM TO BILL CHARGES.
If you wish to cancel your contract with Open Access, you must do so by email or by calling (+44) 01202 935047 between 9am – 6pm (GMT) Monday – Friday with a minimum of at least 30 days.
35. Please be aware that we may use any feedback, comments, or suggestions that you send us or post in our forums without any obligation to you.
Additional Terms applicable to use of Open Access Backup
37. Some Services, including Open Access Backup and Open Access Pro Suite (the “Backup Packages”) are sold on condition that the data being backed up is stored on the internal hard drives of devices that are not classified as External Storage Devices (as defined above), and that the number of such devices does not exceed the limits stipulated in the Pricing Structure. In the event that you wish to backup data stored on External Devices, you are required to disclose this to us and pay such additional storage related charges as set out in the Pricing Structure for that Backup Packages.
38. An upper limit on the number of devices from which backup can be run will be included on each Backup Package. The applicable upper limit will be notified to you at time of Backup Package sale. The upper limit for any single internal or external drive will exclude External Backup Devices, for which the Pricing Structure includes a separate charging methodology. In the event that the number of devices exceeds the applicable limit on the Backup Package sold, Open Access reserves the right, but is not under an obligation, to increase the upper limit of your Backup Package without prior notification to you, and increase the charges accordingly.
39. With the exception of our business service, Services that include Open Access Backup are not to be used for archiving. You must at all times hold an original copy of the data in the original location on the system it was backed up from and ensure that any External Storage Devices are always connected whilst the Software is running. If you delete files from your computer that have been backed up or disconnect External Storage Devices that have been backed up we will remove the corresponding backup from our servers.
40. You must at all times run the Software on any computer that is being backed up and you must ensure this computer connects to the Internet at least once every 30 days. Open Access will remove backups for computers that have not connected to the service for 30 days.
41. If you wish to restore data backed up onto our servers we may require up to 72 hours notice. Whilst ordinarily we would expect your data to be available for restore immediately, we reserve the right to archive data in facilities where it may not be available for immediate access.
You agree not to misuse the Services. For example, you must not, and must not attempt to, use the Services to do the following things:
1. Probe, scan, or test the vulnerability of any system or network;
2. Breach or otherwise circumvent any security or authentication measures;
3. Access, tamper with, or use non-public areas of the Services, shared areas of the Services which you have not been invited to, Open Access (or our service providers’) computer systems;
4. Interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
5. Plant malware or otherwise use the Services to distribute malware;
6. Access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”);
7. Send unsolicited communications, promotions or advertisements, or spam; send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
8. Publish anything that is fraudulent, misleading, or infringes another’s rights; promote or advertise products or Services other than your own without appropriate authorisation;
9. Impersonate or misrepresent your affiliation with any person or entity;
10. Publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred;
11. Violate the law in any way, or violate the privacy of others, or defame others.
Open Access will respond expeditiously to claims of copyright infringement committed using the Open Access service and/or the Open Access website (the “Site”) if such claims are reported to Open Access in the manner identified in the sample notice below.
If you are a copyright owner, authorized to act on behalf of one, or authorised to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following Notice of Alleged Infringement and delivering it by postal mail to the address below.
Notice of Alleged Infringement (“Notice”)
1. Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
2. Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site or the exact location where such material may be found.
3. Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to:
Open Access Internet Ltd.
The Battleship Building
179 Harrow Road
London, W2 6NB
Open Access will investigate the complaint and, where an infringement of copyright is identified, Open Access shall take all necessary steps to resolve the disputed use of copyrighted materials, including where appropriate, terminating the delivery of the Services to the subject of the complaint.
If you are a consumer:
If you are a Business customer:
For the purposes of the GDPR, Open Access is a processor and you are the controller in relation to personal data contained in your files it processes in the provision of the Services. You retain control over the content of your files that are the subject of the Services, and as such the types of personal data that are subject to processing cannot be categorised by Open Access in these terms and conditions. It is assumed such personal data may include all categories of personal data relating to you, or your own clients, customers, suppliers, employees, other personnel and/or other data subjects.
(a) process such personal data in accordance with these terms and conditions and otherwise comply with your documented (including email) instructions in connection with such processing. Where such instructions are provided orally, we shall keep a record of these. If at any point Open Access becomes unable to comply with your instructions regarding the processing of personal data (whether as a result of a change in applicable law, or a change in your instructions, or for any other reason), Open Access shall promptly:
(i) notify you of such inability, to the extent permitted by applicable law; and
(ii) cease all processing of the affected personal data (other than merely storing and maintaining the security of the affected personal data) until such time as you issue new instructions with which Open Access is able to comply.
(b) (i) ensure such personal data are kept confidential; (ii) take reasonable steps to ensure the reliability and trustworthiness of Open Access’s personnel and any subprocessors, and (iii) take reasonable steps to ensure that all relevant Open Access’s personnel, and any relevant subprocessors, have committed themselves to ensuring the confidentiality of all personal data that they process;
(c) ensure that, in each instance in which Open Access engages a new subprocessor, it shall notify you and: (i) allow you a reasonable opportunity to object to the appointment of that subprocessor (and your authorisation is deemed to be granted if you do not object within thirty (30) days of being notified of the proposed subprocessor); and (ii) enter into a binding written agreement with the subprocessor that imposes on the subprocessor the same obligations that apply to Open Access under this Agreement with respect to the processing of personal data; subject to compliance with the foregoing, you hereby generally authorise Open Access to engage sub-processors in relation to the Services.
(d) at your request and sole expense, promptly provide you with all reasonable technical and organisational assistance (taking into account the nature and functionality of the Services) necessary to respond appropriately to requests from individuals to exercise their rights under the GDPR;
(e) at your request and sole expense, promptly provide you with all reasonable assistance necessary to enable you to: (i) notify relevant breaches of the GDPR to the relevant authorities and/or affected individuals; (ii) conduct data protection impact assessments, where required; and (iii) obtain any necessary authorisations from any relevant regulatory authorities;
(f) delete (or, upon your request at or prior to termination, return) your files processed in the performance of the Services in Open Access’s possession within [15 days after the termination or expiry of this Agreement, unless the applicable law of the European Union or an EU Member State requires otherwise;
(g) at your request and sole expense (including Open Access’s reasonable costs and expenses): (i) promptly provide you with all information necessary to enable you to demonstrate compliance with your obligations under the GDPR, to the extent that Open Access is able to provide such information; and (ii) allow for and contribute to audits, including inspections, conducted by you your auditors or appointees in relation to compliance with these data processing terms, provided that such audit shall be during regular business hours, with reasonable advance notice to Open Access and subject to reasonable confidentiality procedures. Before the commencement of any such audit, the parties shall mutually agree upon the scope, timing, and duration of the audit. You may not audit Open Access more than once annually and Open Access reserves the right to charge a fee for its reasonable costs associated with any such audit;
(h) notify you without undue delay in the event of: (i) becoming aware of any personal data breach; or (ii) receipt of any correspondence or communication from any individual, regulatory authority or third party regarding the processing of such personal data; and
(i) apply appropriate technical and security measures to protect any such personal data against unauthorised or unlawful processing and against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to such personal data.