Rainbow Paid Service Terms of Use

SWITCH COMMUNICATIONS LIMITED

RAINBOW PAID SERVICE TERMS OF USE

Please read these Terms in conjunction with our Privacy Notice  and the Terms and Conditions for the Rainbow Service

 

These Terms of Use (Terms) govern the use of the Rainbow paid service (the Rainbow Service or Service) that you have purchased from Switch Communications Limited (Company Number: 02645307) whose Registered Office is at Glebe Farm Down Street, Dummer, Basingstoke, Hampshire, RG25 2AD (hereafter the Company, we, us, our).

 

Any capitalized term used and not otherwise defined in these Terms shall have the meaning set out in Appendix 1 or our Terms and Conditions for the Rainbow Service.

  1. ACCEPTANCE
    • BY SUBMITTING YOUR ORDER FOR RAINBOW SERVICE TO THE COMPANY (THE ORDER) OR BY USING THE SERVICE, YOU AGREE TO THESE TERMS.
    • IF YOU ARE DOING THE FOREGOING AND ACCORDINGLY AGREEING TO THESE TERMS IN THE NAME AND ON BEHALF OF A LEGAL ENTITY INCLUDING ANY AFFILIATES SPECIFIED IN THE ORDER, THEN YOU AKNOWLEDGE THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND AFFILIATE(S), IN WHICH CASE “YOU”, “YOUR” OR “YOUR COMPANY” SHALL REFER TO SUCH ENTITY AND AFFILIATE(S). IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, THEN DO NOT USE THE RAINBOW SERVICE.
    • The Rainbow Service is not intended to be used:
      • for recreation or entertainment; or
      • for children and teenagers.

The Rainbow Service can only be used by persons aged 18 and over. If the Company learns that Personal Data of non-adults have been collected through Rainbow Service, then the Company may deactivate the involved account(s) (including your and your Users’ account) and/or make the Service inaccessible to you and any of your Users pursuant to paragraph 3.6.

  • We may amend these Terms from time to time. Your continued use of the Rainbow Services following any revision of these Terms published by the Company pursuant to paragraph 7 will signify your acceptance of such revised terms.
  • Upon your acceptance of these Terms as set forth above, these Terms shall constitute a binding agreement between you and the Company and be part of the Agreement.
  • Subject to your acceptance of these Terms, you and your User(s) may download the software application of the Rainbow Service (the Software) in order to ease yours and your user(s)’s access to the Service. The Software is licensed to you under the Company’s EULA which must be accepted by you when downloading the Software.
  1. Terms Scope and Service Description
    • These Terms govern your use and the use of the Rainbow Service by employees or agents/contractors of your Company (collectively your Users or Users).
    • With regards to the Rainbow Service only and without prejudice to any other service the Rainbow Service might be combined with, your agreement with the Company (the Agreement) consists of:
      • our Terms and Conditions for the Rainbow Service;
      • our Privacy Notice;
      • your Order;
      • these Terms; and
      • the specifications of the Rainbow Service you have purchased.
    • In the event of a conflict, the order of precedence is as set out above.
    • The Agreement constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Agreement.
    • These Terms apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
    • If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
    • To the extent permitted by applicable law, the Company may update and make changes to these Terms from time to time. The Company will notify you of any updated Terms via any means at the Company’s election in accordance with applicable law including without limitation by posting onto or making available through the Company’s website the updated Terms. When the Company updated and introduced changes to these Terms in accordance with the above you acknowledge and agree with your continued use of the Rainbow Service that such revised Terms will be enforceable against you.
    • The Rainbow Services are as set out in Appendix 1 of Terms and Conditions for the Rainbow Service [insert link to Terms and Conditions].
    • Currently, the Rainbow Service accessibility depends on the device used by Users. The details of the devices on which the Rainbow Service is available for use are described in the white list available on www.OpenRainbow.com (Site) and are subject to change at any time.
    • The Company shall perform the Rainbow Services in accordance with the Service Level Agreement as described in Appendix 1 of our Terms and Conditions for the Rainbow Service [insert link to Terms and Conditions].
    • The Rainbow Service and its related usage by you and your Users are provided against and subject to payment of fees to Company. The scope of the purchased Rainbow Service and the applicable fees are as agreed in the Agreement.
    • Any feature of the Rainbow Service may be enhanced and/or changed at any time by the Company at its sole discretion as long as the Company does not materially reduce the core functionality of the Rainbow Service, and always in accordance with applicable laws and the notification process set out in 2.7 above.
    • The Company may discontinue the Service or any or all features of the Rainbow Service without any liability to you either:
      • immediately, if the Company is required to do so by any ruling of a governmental, regulatory authority or court, or by law; or
      • upon a sixty (60) day prior notice to you.
  1. Rainbow Access – Right to Monitor and Remove submissions/Content
    • Subject to your compliance with these Terms, the Company hereby grants you permission to use the Rainbow Service specified in the Agreement, provided that:
      • your use of the Service as permitted is solely for use of your Users, and you are not permitted to resell or charge others for use of or access to the Service unless expressly authorized by the Company, or in any other manner inconsistent with these Terms;
      • you will not duplicate, transfer, give access to, copy or distribute your User account without Company’s prior written authorization; and
      • you will not attempt to reverse engineer, alter or modify any part of the Service.
    • In order to access and use the features of the Rainbow Service, you acknowledge and agree that each of your Users will have to provide us with their name, surname and email address.
    • You acknowledge and agree that you are solely responsible for the accuracy and content of the Personal Data of your Users.
    • Optionally, your Users may provide their mobile (cell) phone number. Upon your User’s consent, the Rainbow Service will access such User’s contact list and/or address book on your User’s mobile device, in order to provide to such User the mean to easily invite his/her contacts to create their own user accounts.
    • For connecting to the Rainbow Service, your User(s) will be required to use a password. You agree that your User’s use of the Rainbow Service shall be at your sole risk and that you are fully responsible and liable:
      • for ensuring that your Users maintain the confidentiality of such password; and
      • for any and all activities that occur under any such password as well as for any loss or damage or payment incurred by Company or any third party due to the use of password of your Users or account by someone else. You agree to notify Company immediately of any unauthorized use of any User’s password and/or account or any breach of security.
    • In the event of breach of any applicable law, regulation, and/or of these Terms (including without limitation breach of any of your representations and warranties set forth herein), the Company may deactivate the involved account(s) (including your and your Users’ account) and delete any or all of yours and/or your Users’ related data, information and files. Such action may include, among others, accessing yours and/or your Users’ Content (as such term is defined in paragraph 4 below) or data and/or discontinuing yours and/or your Users’ use of access to the Rainbow Service without any liability to you or any third party for doing so and without prejudice to the Company’s right to claim for indemnification of damages in case of termination of your access for breach of these Terms and/or violation of any applicable law and regulation.
    • In accordance with any applicable laws, the Company has the right, but does not assume the obligation, to monitor and investigate violations of these Terms. Failure to comply with or breach of these Terms constitutes a material breach of the Agreement, and at any time, may result in Company taking any and all actions available under applicable law to remedy the violation, including with immediate effect based on our reasonable judgment, up to and including;
      • issuing a warning;
      • suspending or terminating access to the Service without prior notice; and / or
      • disclosure of such information to law enforcement authorities as Company reasonably feels is necessary or appropriate.
  1. Users’ Content submission
    • The Rainbow Service allows your Users to submit, share, send, display Content to and with other Users. As such, you -for yourselves and your Users- hereby acknowledge and agree that such Content may be made visible to others. In particular, any of your User’s Presence Information and Contact Information is automatically displayed to other Users, typically to Users that are part of the User’s Contact list whom presence and contact information is visible.
    • You or each of your Users, as the case may be, retain intellectual property rights (if any vested) in your/its respective Content submissions subject to third party’s intellectual property rights.
    • You shall be solely responsible for your Users’ own Content submissions and the consequences of posting or publishing them. In connection with Content submissions, you represent and warrant that:
      • your Users own or have the necessary licenses, rights, consents, and permissions to use all intellectual proprietary rights (including without limitation patent, trademark, trade secret, copyright/author’s rights) in and to any and all Content submissions to enable inclusion and use of the Content submissions in the manner contemplated by the Service and these Terms; and
      • your Users have the written consent, release, and/or permission of each and every identifiable individual person in the Content submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Content submission in the manner contemplated by the Service and these Terms.
    • Because the Company, through the Service it provides, is only acting as a repository of data, yours or your User’s submitted Content do not necessarily represent the views or opinions of the Company.
    • Information provided to any of your Users by other Users through the Rainbow Service may contain links to third party websites that are not owned or controlled by the Company. In any case, the Company has no control over, and assumes no responsibility for, the Content, privacy policies, or practices of any third-party websites. In addition, the Company will not and cannot censor or edit the Content of any third-party websites. By using the Service, you expressly acknowledge and agree that the Company and the Company (if it is not the Company) shall not be responsible and liable for any claim or damage whatsoever arising from or related to your Users of any third-party websites.
    • You further understand and acknowledge that your Users may be exposed to Content Submission that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive for and on behalf your Users, any legal or equitable rights or remedies you or your Users have or may have against the Company and the Company (if it is not the Company) with respect thereto.
  2. Prohibited User Conduct
    • You -for yourselves and your Users- hereby agree not to use or launch any manual or automated system, including without limitation, “robots,” that accesses the Service in a manner that sends more request messages to the servers hosting the Rainbow Service in a given period of time than a human can reasonably produce in the same period. the Company disallows using request modification tools for altering or reverse engineering its systems, or any activity that is meant to hack, harm, penetrate or attack the Rainbow Service and the Site. You must secure the Company’s permission before any measure, test, health check or otherwise monitor our network equipment, servers or assets hosted on the Company’s domain. You agree not to collect or harvest any information, and especially personal data, from or through the Service except information of any User’s Content submission or of your User’s contact list or yours or your Users’ authorized group of Users.
    • In connection with Content submission, you further agree that you and your Users will not permit, encourage, facilitate or instruct any other person to:
      • submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are or your involved User is the owner of such rights or have permission from its rightful owner to post such material;
      • publish falsehoods or misrepresentations that could damage the Company, its third party providers or any third party;
      • submit material that is unlawful, obscene, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered as a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
      • post unsolicited advertisements or solicitations of business;
      • impersonate another person or assume a sender’s identity without the real sender’s express permission;
      • send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; distribute unwanted, unsolicited or harassing mass e-mail or other messages, promotions, advertising, or solicitations (“Spam”);
      • interfere with or disrupt the integrity or performance of the Service or the data contained therein;
      • attempt to gain unauthorized access to the Service or its related systems or networks;
      • attack, abuse, interfere with, surreptitiously intercept, or disrupt any users, systems or services, including but not limited to Denial of Service (DoS), unauthorized monitoring or crawling, distribution of malware (including but not limited to viruses, worms, time bombs, spyware, adware, or cancelbots); or
      • disable, interfere with, abuse, disrupt, intercept, circumvent or otherwise violate the security of the Service.
  1. Intellectual Property Rights
    • The design of the Rainbow Service along with the Company created text, scripts, graphics, interactive features and the like, except Content submissions (as defined in paragraph 4), and the trademarks, service marks and logos contained therein (Marks), are owned or licensed to the Company, subject to copyright and other intellectual property rights under French and foreign laws and international conventions. The Company reserves all rights not expressly granted in and to the Service.
    • You agree -for yourselves and your Users- to not engage in the use, copying, or distribution of any part of the Service other than as expressly permitted herein, including any use, copying, or distribution of Content submissions of any third party obtained through the Service for any commercial purposes unless to the extent expressly permitted by such third party.
  2. Claims of copyright Infringement
    • If you have good reasons to believe that materials have been used on the Rainbow Service or on the Site in a way that constitutes copyright infringement, please provide the following information to the Company:
      • a description of the materials and their location on the Rainbow Service and the Site;
      • your name, surname, telephone number, and email address;
      • your Company’s corporate name and address (if applicable);
      • a statement made by you: (i) that you believe in good faith that the use of the materials is not authorized, and (ii) under penalty of perjury, that you are the copyright owner of the materials, or that you are authorized to act on behalf of the copyright owner (and in that case, the name and signature of the copyright owner authorizing you).
  1. Warranty Disclaimer
    • THE RAINBOW SERVICE, AS WELL AS ANY AND ALL THE INFORMATION MADE AVAILABLE BY THE COMPANY ON THE SITE (INCLUDING THE SOFTWARE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR/YOUR USERS’ USE THEREOF. WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT THE RAINBOW SERVICE, THE SOFTWARE, AND ANY OTHER INFORMATION OR MATERIALS THAT MAY BE OBTAINED FROM THE USE OF THE RAINBOW SERVICE OR THE SITE (I) ARE FREE OF ANY ERROR, BUG, OMISSION, MISTAKE, VIRUS, TROJAN HORSE, OR THE LIKE INCLUDING THOSE VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE INCLUDING THROUGH THE ACTIONS OF ANY THIRD PARTY, OR (II) WILL BE ACCURATE OR RELIABLE OR THAT THE QUALITY OF THE SERVICE WILL MEET YOUR/YOUR USERS’ EXPECTATIONS.
    • IN ADDITION, DUE TO THE CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR INTRUDING UPON AND ATTACKING NETWORKS, THE COMPANY DOES NOT WARRANT THAT THE SERVICE, THE SITE AND ANY SERVER HOSTING THE SERVICE AND/OR THE SITE WILL BE FREE OF VULNERABILITY TO UNAUTHORIZED ACCESS, UNLAWFULL INTRUSION OR ATTACK.
    • THE SERVICE IS NOT INTENDED TO MAKE OR FACILITATE CALLS TO EMERGENCY NUMBERS. YOU/YOUR USERS MUST USE AN ALTERNATIVE SERVICE OBTAINED THROUGH A PSTN OR OTHER THIRD PARTY AUDIO PROVIDER), AND IN NO EVENT THE COMPANY WILL BE LIABLE TO YOU/YOUR USERS FOR ANY CALL OR FAILURE TO MAKE A CALL TO ANY NUMBER TO MAKE CALLS TO EMERGENCY NUMBERS.
    • FUTHERMORE NO WARRANTY IS GIVEN AS TO THE USE OF THE SERVICE IN HIGHRISKS SITUATIONS BY PROVIDING THAT THE SERVICE IS NOT FAULT TOLERANT, NOR DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE (INCLUDING, WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS) IN WHICH FAILURE OF THE SERVICE COULD LEAD DIRECTLY OR INDIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
    • AS CONCERNS CONTENT SUBMISSIONS, the Company MAKES NO WARRANTY AS TO THE VALIDITY, ACCURACY OF ANY CONTENT AND the Company DOES NOT ENDORSE ANY CONTENT SUBMISSION OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN.
  2. Limitation of Liability
    • THE COMPANY’S TERMS AND CONDITIONS FOR USE OF THE RAINBOW SERVICE SETS OUT THE LIABILITY OF THE COMPANY [insert link to Terms and Conditions].
  3. Indemnity
    • You agree to indemnify the Company, their respective affiliates, officers, directors, employees and agents against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from or in connection with:
      • all matters related to your/your User’s use of and access to the Rainbow Service;
      • your/your Users’ violation of any term of these Terms;
      • your/your Users’ violation of any third party’s right, including without limitation any intellectual property right with regards to your/their Content submission; or
      • any claim that one of the Content submissions caused damage to a third party. This defence and indemnification obligation will survive these Terms and your use of the Rainbow Service.
    • Without prejudice to the foregoing, the Company reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with the Company’s defence of such claim.
  4. Assignment
    • We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of Our rights under the Agreement and may subcontract or delegate in any manner any or all of Our obligations under the Agreement to any Authorised Party, third party or agent.
    • You shall not, without the prior written consent of the Company, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement.
  5. Term and Termination
    • These Terms start on the date you submit your Order to the Company and subject to paragraph 13 below will remain in effect until expiry or termination of the Agreement.
  6. Surviving provisions
    • The following provisions of these Terms will survive the expiration or termination of the Agreement: paragraph 6, paragraph 9, paragraph 10, paragraphs 14.
  7. Applicable Law – Disputes settlement
    • Governing law. The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
    • Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
  8. Miscellaneous
    • The Rainbow Service and Software may be subject to local and extraterritorial export control laws and regulations. You shall comply with such laws and regulations governing use, export, re-export, and transfer of the Rainbow Service and Software and will obtain all required local and extraterritorial authorizations, permits or licenses.
    • You will comply with all applicable laws and regulations related to your receipt and use of the Rainbow Service. You must ensure you have the right to use all features of the Rainbow Service in your jurisdiction.
    • You may not use or reproduce the Rainbow trademarks or the rainbow logo and service marks, in whole or in part, in any manner without the Company’s or the Company’s licensor’s prior written permission.
  9. Personal data protection Notice Supplement
    • Our Privacy Notice [insert link to Privacy Notice] shall apply to any personal data we process while performing the Service.

Appendix 1

DEFINITIONS

Contact Information means the User’s personal data as displayed in his/her account such as name, avatar, title, country, phone numbers, and email.
Content means any and all (a) visual, written or audible communications, files, data documents, videos, or recordings; and/or (b) any other material displayed, posted, uploaded, stored, exchanged or transmitted on or through Users’ use of the Rainbow Service.
Presence Information means the availability indication of a given User.
Order your order for the Rainbow Service.