Dataswyft Ltd (Dataswyft)

Personal Data Account (PDA) Owner Agreement

Updated on: 16 October, 2023

1. About these Terms

1.1 What these terms cover. This PDA Owner Agreement, together with our Privacy Policy and any other policies listed on www.dataswyft.io (the “Website”) (collectively the “Terms”) govern your access and use of Personal Data Accounts within your Decentralised Data Server and Server Database (“DDS”), the Dashboard (Your PDA Dashboard), the DDS Tools and our supply of services relating to the storage, usage, access, control, streaming and sharing of your Self-Sovereign Data in your DDS in accordance with your instructions (collectively the “Services”). By registering to become a DDS and PDA Owner and using the Services, you confirm that you are at least 18 years old.

1.2 Why you should read them and the PDA Guide. Please read these Terms carefully before you register with us. These terms tell you who we are, how we will issue a PDA and provide the Services to you, how you and we may change or end the contract, what to do if there is a problem and other important information such as the rights and obligations regarding the use of your PDA and the Services. To help you understand these Terms, please refer to the PDA Guide for Owners (“PDA Guide”) which explains how PDAs work.

1.3 If you think that there is a mistake in these Terms, please contact us to discuss.

Information about us and how to contact us

1.4 Who we are. We are Dataswyft Ltd, a company registered in England and Wales (registration number 09821157), whose registered office is at CO HFL House, 1 Saxon Way, Melbourn, Cambridge SH8 6DN, U.K. Our VAT number is 230931042. In these Terms, “Dataswyft”, “we”, “us” and “our” refer to Dataswyft Limited; “you” and “your” refer to the PDA Owner.

1.5 How to contact us. You can contact us by writing to us at contact@dataswyft.com.

1.6 How we may contact you. If we need to contact you, we will do so by telephone or email using the address you provided during registration. “Writing” includes emails.

1.7 Definitions. Capitalised words used in these Terms have special meanings as explained in clause 16. Additional information is available in the PDA Guide.

Our contract with you.

1.8 How we will accept your order. Our acceptance occurs when a Network-enabled application authorized by us requests a PDA for you; at that point a contract comes into existence if you accept both the application’s terms of service and this agreement.

1.9 How we execute your order. When we receive your order, a DDS will be provisioned. Depending on your location, your order may be executed by a licensed technology operations company. Once provisioned, we will set up contracts to grant the necessary permissions for applications to access your PDA and Self-Sovereign Data.

1.10 If we cannot accept your order. We will inform you in writing if we cannot accept your order—this may be due to lack of rights, violation of these Terms, or applicable laws.

2. Your PDA

2.1 Your Personal Data and data protection.

(a) Once your PDA has been set up, the data within is deemed to be self-sovereign data and you would have the full rights to access, control, use and license the data.  PDAs are used to store both Personal Data and File Storage System Data. This includes any Personal Data  that can identify you directly (e.g. by name) or indirectly (e.g. by personal characteristics). Together, PDA Data and File Storage System Data may contain your Personal Data (“Personal Data”). Together, PDA Data and File Storage System Data also constitute your Self-Sovereign Data (“Self-Sovereign Data”).

(b) For the purpose of data protection law, you are the one who decides how and why any Personal Data in your PDA will be used, shared and generally processed (see clause 16 for an explanation of “processing”).  Your control over the Personal Data in PDAs makes you a Controller of that data.

2.2 Contracted PDA. You will obtain a contracted PDA when your PDA is issued as part of a contract with a CONTRACTED SERVICE PROVIDER  that you have given permission to access a namespace or data within a namespace of your PDA. A contracted PDA may be used to store your records as an employee, or as a student, or as a data wallet service due to a contracted service that you allow for read/write/update/delete access of a your PDA only for the purpose of the service. You will be explicitly asked, when you sign up to the application of a contracted service provider to accept the contract, and you can choose not to do so. Even if you do choose to accept the contract, the contracted service provider can only access the designated namespaces and data that you have given permissions on. You may still use your PDA with other applications without revealing the data of other namespaces to the contracted service provider. 

2.3 Deleting your Server. ‍You are free to delete the data account linked to any application at any time, as well as your DDS.  You do this by contacting us by email and requesting us to delete any data account’s data and/or your DDS.  If you delete your DDS you will be deleting all the self-sovereign data in all Data Accounts and there will be no way of reversing such deletion if you change your mind.  We recommend you download your Server Data  before you delete your server. If we are required by law, we may retain certain information even if you delete your server.  We will notify you if this is the case (unless we are prevented from doing so by law).  We may also retain self-sovereign data following deletion of your PDA in our back up system files for a short period until the files are deleted. 

2.4 ‍Contracted PDA User Agreement - Deleting your Self-Sovereign Data. If your PDA is a contracted PDA, you cannot disable your contracted service provider’s access to the designated namespace(s) and data. If you wish to disable your contracted service provider’s access to the designated namespace(s) and/or data, or if you wish to delete your DDS, you can only do this by contacting the contracted service provider by email and requesting THEM to contact Dataswyft to delete your PDA and/or disable access.  If you choose to delete your server you will be deleting all of your Self-Sovereign data and there will be no way of reversing such deletion if you change your mind. This may impact your ability to continue your agreement with your contracted service provider . If we are required by law, we may retain certain information even if you delete your PDA.  We will notify you if this is the case (unless we are prevented from doing so by law).  We may also retain self-sovereign data following deletion of your PDA in our back up system files for a short period until the files are deleted.

2.5 Our rights to use Personal Data.  We do not have rights to use your personal data except to the limited extent we need to collect your email or other identifiers in order for us to provision you with a DDS, its Services and enable us to comply with our legal obligations.  We and our affiliates and third party suppliers (such as those providing hosting services) are permitted to process such personal data in order to provide the Services. We do not have any rights to use your self-sovereign data.

2.6 ‍Prohibitions.  You will not under any circumstances do (or attempt to do) any of the following in relation to your PDA or the Services:

(a) interfere with, disrupt or degrade the integrity or performance of the Services, or the servers or networks on which the Services operate;

(b) propagate any virus, worms, Trojan horses, malware or other computer programming that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, software or data;

(c) breach or circumvent any of our technical, administrative or security measures;

(d) use the Services to encourage or promote illegal activity or violation of third party rights;

(e) sell, resell, rent, sublicense, lease, redistribute or otherwise make the Services available to any third party;

(f) use the Services to promote or facilitate unlawful online gambling, or disruptive or unlawful commercial messages or advertisements; or

(g) use the Services to process or store any data that you know (or should know) is in violation of any law or regulation, or the rights of any person, including Intellectual Property Rights, data protection rights, or in any manner inconsistent with these Terms.

3. PDA Services

3.1 Mutual obligations. We will use reasonable skill and care to provide the PDA and Services under these Terms; you agree to comply with them when using your PDA or Services.

3.2 Monitoring of Services. We reserve the right to monitor your PDA and Services usage to ensure compliance with our Acceptable Use Policy and these Terms.

3.3 HMICs and Network-Enabled Apps.

(a) Organizations may use your PDA as a way of safely storing and accessing Personal Data in a way that gives you control and ownership.  In order for them to store or access Personal Data in your PDA, you must first give them permission to do so.  You give permission via a “HAT Microserver Instruction Contract” or “HMIC” that will be presented to you for your agreement.

(b) Organizations connect with your PDA via their Network-enabled Applications.  Network-enabled Apps are how an organization stores data in, and accesses data from, your PDA.

3.4 Data quality and accuracy.  We are not responsible for the content or accuracy of any data coming into your PDA from a Network-enabled Application.  The Network-enabled Application is responsible for accuracy and if you believe any data is inaccurate you should refer the matter to the relevant Application.

3.5 Dataswyft oversight and governance.

(a) We provide general oversight over the setting up and usage of PDAs and Services, this includes using all reasonable efforts to ensure Network-enabled Application owners follow rules regarding the types of data that can be put into and taken out of PDAs and their application’s data conduct.

(b) We also have certain governance standards in place that organizations using our API Platform must comply with and we have processes to deal with any non-compliance by such organizations.

3.6 ‍Your responsibilities and obligations.

(a) You must not use the Services to access the Personal Data of another individual without authorization or in contravention of these Terms.

(b) You are solely responsible for making decisions regarding the HMICs you accept, the data you allow to go into your PDA and the Self-Sovereign Data you agree to share with Network-enabled Applications.

(c) You must comply with any terms and conditions set out in HMICs you have accepted with relevant Network-Enabled Applications.

3.7 No liability.  Dataswyft has no legal access to the self-sovereign data you choose to share with Network-enabled Applications.  Therefore, you agree that any sharing of your PDA Data with such applications will not (subject always to clause 7) impose any obligation or liability upon us, our affiliates or suppliers, including any obligation to pay any kind of monetary contribution (including licence fees or otherwise) to any person unless this is explicitly agreed in a separate agreement.

3.8 Smart HAT Engine (SHE) Functions.  We or third parties may make available to you Tools, powered by Smart HAT Engine Functions (“SHEF") to help you understand and analyze your PDA Data and enhance your use of third party applications and the Services.  If you use SHEF, you agree that:

(a) any SHEF that is designed to transform your data is allowed to write the data into your PDA;

(b) These SHEF are provided for you free of charge and we give no warranty as the accuracy of any data created by them. You agree to check data created by a SHEF and agree that (subject always to clause 7) we have no responsibility or liability for the accuracy of any data created by a SHEF;

(c) data created by a SHEF will form part of your PDA Data and will be subject to these Terms.

3.9 Updates to Your PDA Dashboard.  We or third parties may develop updates to Your PDA App (“Updates”).  Updates are intended to modify or enhance the functionality of Your PDA Dashboard and to improve the performance, security and reliability of the Services or Your PDA Dashboard.  Updates may require the collection and processing of your Personal Data and browsing data.  You agree that Your PDA Dashboard may, without notice, look for available Updates, download them and install them automatically.  We reserve the right to disable or remove Updates that do not comply with these Terms or any applicable law.

3.10 Maintenance.  We reserve the right to conduct activities necessary for the maintenance and support of the DDSs.  You agree to reasonably cooperate with us to investigate service outages or suspected breaches of these Terms or applicable laws. We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.

3.11 Right to refuse instructions.  We may, in our absolute discretion, isolate your PDA and/or refuse to execute any instructions issued by you regarding the transfer of data into or out of your PDA where we reasonably consider that you do not have the necessary right to obtain or share such data, or we reasonably consider it would be a violation of these Terms, or we reasonably consider it would breach any applicable laws.

4. PDA Security

4.1 Your security obligations.  You have a responsibility to help protect against unauthorized access to your PDA.  In particular:

(a) you must not use another person’s PDA login details to access their PDA, or share your PDA login details with any other person;

(b) you must maintain good internet security practices, including having in place appropriate internet security software, firewalls and similar tools to safeguard your system whilst online; and

(c) you must deploy an up-to-date virus checker on any device you use to access your PDA in order to (i) ensure protection against viruses or other harmful software that could damage, harm, disable or otherwise impact or limit the function and performance of your device and its ability to access your PDA or Services; and (ii) ensure the PDA and the Services are protected from such viruses or other harmful software.

4.2 ‍Breach notification.  You must notify us without delay (at support@dataswyft.io) if you become aware of any unauthorized use of your PDA, PDA Data or the Services, or any other breach of security.  If you think your email account has been compromised you should change your PDA credentials promptly and make sure your compromised email account does not allow access to your PDA.

4.3 ‍Your co-operation.  You agree to co-operate with us, our affiliates and suppliers whenever reasonably necessary in order for us to investigate service outages or suspected breaches of these Terms or any applicable Laws.

5. Third-party services

You may from time to time as a result of, or through the use of, the Services purchase or avail yourself of services, goods or software which are provided to you by a third party. Your use of such services, goods or software may be subject to separate terms and conditions between you and the relevant third party. These Terms do not affect your legal relationship with that third party and we are not liable or responsible for any services, goods or software provided to you by any third party.

6. Intellectual Property Rights

6.1 Your database right.  In setting up your PDA, the DDS Database (“DDS Database”) will be created for you as part of the Services through the Dataswyft API Platform.  To the extent Dataswyft owns any database rights in that DDS Database, we hereby assign such rights to you but EXCLUDE any rights in the File Storage System which remains owned by Dataswyft or third parties as applicable.  You own the right, title and interest in your DDS Database and we have no rights over your DDS Database except for the limited rights necessary for us to deliver the Services and provide the PDA as set out in these Terms.

6.2 Our intellectual property rights.  The Dataswyft API Platform, File Storage System and Services are protected by intellectual property rights (including, but not limited to, copyright and trademark) in accordance with applicable laws.  Dataswyft or its third party licensors own and are entitled to all legal rights, title and interest which may exist in the Dataswyft API Platform, File Storage System and Services and all intellectual property rights worldwide, regardless of whether registered/legally secured or not.  You are not granted any rights, title or interest in the Dataswyft API Platform, Your PDA Dashboard Updates, the File Storage System or Services other than as expressly stated in clause 6.1.

6.3 ‍Licence grant.  Conditional upon your complying with these Terms, we grant you a limited, non-exclusive, non-transferable, revocable licence (“Licence”) to download and use Your PDA Dashboard and any Updates to access and use your PDA and Services.

6.4 Licence restrictions.  Unless any of the following restrictions are prohibited by law, you agree not to do, or attempt to do, any of the following:

(a) reverse engineer Your PDA Dashboard or Updates in any manner not compatible with the Licence;

(b) decompile or otherwise extract the source code to Your PDA Dashboard or Updates;

(c) use Your PDA Dashboard or Updates for any purpose other than accessing or using the PDA or Services or in any way that is contrary to these Terms.

6.5 Open source licence.  To the extent any part of the Services, your PDA, or Your PDA Dashboard and Updates is provided to you under an open source licence, we will make that licence available to you and the provisions of that licence may expressly override some of the provisions of these Terms.

7. Data Production

7.1 Dataswyft as Controller.  Dataswyft will collect Personal Data about you in relation to your use of your DDS, its PDAs and Services.  We will use this Personal Data for the following purposes: 

(a) to set up, operate and administer your DDS and PDA; 

(b) to provide the Services ; and

(c) to supervise your compliance with the Acceptable Use Policy. 
We are a Controller in respect of our processing of your Personal Data for these purposes and we will comply with all applicable DP Laws in respect of such processing.

7.2 Information about how we process your Personal Data.  We are required to provide you with information about how we process your Personal Data, including information about what data we collect, who we share it with, whether we transfer it to other countries and your rights as a data subject (i.e. the individual who is the subject of the Personal Data).  This information is set out in our Privacy Policy which can be accessed here.  

7.3 Communications.  We may contact you by email and/or via Your PDA Dashboard about the operation and use of your PDA and Services.  You should add Dataswyft to your contacts to ensure these service related emails do not go into a spam or junk folder and you should check Your PDA Dashboard periodically for any notifications.With your prior consent, we may contact you by any reasonable method, including by email or via Your PDA Dashboard, with updates and news about your PDA and the Services we provide.  You can unsubscribe at any time. 

7.4 ‍Dataswyft as processor.  When we host or back up your PDA Data we are doing this on your behalf and that makes us your processor.  To the extent the General Data Protection Regulation 2016 (“GDPR”) applies to us and these activities, we will comply with the data processing provisions set out in Schedule 1 to these Terms.  The provisions in Schedule 1 do not apply if we are acting as a Controller. 

8. Confidentiality

8.1 Obligation of confidentiality.  The Services may contain information which is confidential to Dataswyft, including information designated as confidential, or recognisable as trade or business secrets, or information which otherwise has the necessary quality of being confidential (“Confidential Information”).  Unless stated otherwise in these Terms, you will (i) keep the Confidential Information confidential for as long as it remains confidential and not disclose it without Dataswyft's prior written consent and (ii) neither record nor utilize the Confidential Information unless necessary for the purposes of these Terms.

8.2 ‍Permitted disclosures.  Clause 8.1 will not apply in the event you are required by applicable law to disclose the Confidential Information, in which case you will promptly notify us (unless you are legally prohibited from doing so) and restrict the Confidential Information you disclose to the minimum amount necessary to meet the requirements of such applicable law.

8.3 ‍Exceptions.  Clause 8.1 will not apply to any Confidential Information which you can demonstrate to our reasonable satisfaction:

(a) was already lawfully in your possession prior to our disclosure of it to you;

(b) was in the public domain (otherwise than through your breach of these Terms); or

(c) was independently created by you without any recourse or reference to the Confidential Information we disclosed to you.

9. Disclaimers; No Warranties; Limitation of Liability

9.1 THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. DATASWYFT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. DATASWYFT DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DATASWYFT DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

9.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR DATASWYFT OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY DATASWYFT OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES) OR ANY LOSS OF DATA. DATASWYFT, ITS AFFILIATES AND SUPPLIERS ARE NOT RESPONSIBLE FOR HOW YOU USE YOUR PDA OR THE SERVICES (INCLUDING ANY DATA PLUGS OR DATA DEBITS).

9.3 TO THE EXTENT ANY OF THE SERVICES INCLUDE LINKS TO THIRD PARTY WEBSITES OR CONTENT, DATASWYFT AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY CONSEQUENCES DERIVED FROM YOUR ACCESSING, DOWNLOADING, COPYING, SHARING, STORING OR OTHERWISE USING SUCH THIRD PARTY WEBSITES OR CONTENT, OR YOUR RELIANCE ON SUCH THIRD PARTY WEBSITES OR CONTENT.

9.4 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Dataswyft does not disclaim any warranty or other right that Dataswyft is prohibited from disclaiming under applicable law. 

9.5 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL DATASWYFT, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DATASWYFT, ITS AFFILIATES OR SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

9.6 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF DATASWYFT, ITS AFFILIATES AND SUPPLIERS TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.

9.7 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND DATASWYFT. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10. Indemnities

10.1 If Dataswyft, its affiliates and suppliers (the “Indemnitees”) face a legal claim by a third party arising out of your negligence, breach of these Terms or any applicable law, you will bear the costs associated with such claim and any damages award, fine, or any other amount that is imposed on the Indemnitees in relation to the claim.

10.2 Dataswyft will choose legal counsel to defend the claim and will inform you on the choice. You agree to cooperate with Dataswyft’s in the defense of the claim.  We may settle the claim only with your consent. However, you cannot unreasonably withhold, delay, condition or withdraw such consent.

11. Changes to Terms and Services

11.1 Changes to Terms.  We may revise these Terms (which comprise this PDA Owner Agreement, our PDA Acceptable Use Policy, our PDA Privacy Policy and any other policies that are listed on the Dataswyft website) at any time and, if we do so, we will post the most current version on our website when it becomes effective. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

11.2 Notification of changes to Terms.  If we make any material changes to our Terms that affect your rights as an Owner of a PDA or otherwise materially reduce your rights under the Terms, we will notify you by sending a message to the email address associated with your PDA , or by posting a notice on our website, or by any other suitable means, at least 15 days before the changes take effect.

‍11.3 Acceptance of changes to Terms.  You will be deemed to have accepted the revised Terms if you continue to use or access your PDA, Your PDA Dashboard, or the Services after any revisions come into effect, in which case you will be bound by the revised Terms from the date on which they come into effect.  You are free to end these Terms at any time in accordance with clause 12 should you choose not to accept the revised Terms.  If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Services. Your acceptance of these Terms and the date of acceptance are logged in your PDA.  You may request a copy of the current Terms at any time by emailing contact@dataswyft.io.

‍11.4 Changes to the Dataswyft API Platform.  We may update and change the Dataswyft API Platform from time to time to, among other things, reflect changes to the needs of PDA owners, Network Application owners and our business priorities.  We will use reasonable efforts to provide you with notice of any material changes. Pursuant to the rules of our regulators (HAT Community Foundation and the Financial Conduct Authority), if we may make any changes to the APIs that alters this agreement in anyway, we will notify you of those changes.

11.5 Changes to Services.

11.5.1 Minor changes. We may change the Services:
To reflect changes in relevant laws and regulatory requirements; and
to implement minor technical adjustments and improvements, for example to address a security threat. These changes will not affect your use of the Services. 

11.5.1.1 ‍More significant changes to the Services. We may at any time on giving you reasonable prior notice change the Services or suspend and/or cease providing the Services or any part of the Services in the circumstances where your network-enabled application is no longer in operation. In such circumstances you may end the contract in accordance with clause 12.

11.5.1.2 We may on reasonable notice to you:

(a) disable or suspend your use of the Services including access to your DDS and any files or other content contained in your DDS Database of the File Storage System either temporarily or permanently;

(b) set a limit on the number of transmissions you may send or receive through the Services, or on the amount of storage space used for the provision of the Services; or 

(c) block access to a PDA and File Storage System Data from the Services.

12. Suspension and Termination

12.1 Duration.  The contract will remain in effect until terminated by either you or us in accordance with the provisions of this clause 12.

12.2‍ Your right to end the contract.  You may terminate the contract at any time for any reason by sending a notice in writing to contact@dataswyft.io; You will give us at least 30 days within which to terminate your PDA.

Suspension.  We may have to suspend your access to your PDA and/or the Services to:
(a) deal with technical problems or make minor technical changes;
(b) update the Services to reflect changes in relevant laws and regulatory requirements;
(c) make changes to the Services as requested by you or notified by us to you.


12.3 We may also suspend your access to your PDA and/or the Services if:
(a) you fail to cooperate with our investigations relating to the provision of your PDA or Services;
(b) it is necessary to prevent significant harm to the Dataswyft API Platform, to PDAs or the Services, or to any of our affiliates, suppliers or other users
(c) you are in non-material breach of your obligations under these Terms and have not remedied such breach after having been notified to do so.

12.4 ‍Termination.  
Our rights to end the contract. We may terminate the contract and withdraw access to your PDA and the Services if:
(a) you are in material breach of any of these Terms and you have failed to remedy such breach (where capable of remedy) within 15 days of our notifying you of the breach;
(b) it is necessary in our reasonable opinion to prevent significant harm to the Dataswyft API Platform, to PDAs or the Services, or to any of our affiliates, suppliers or other users;
(c) we are required by law to terminate your access or use of the Dataswyft API Platform, your PDA or the Services;
(d) there is any infringement (or alleged infringement) of any intellectual property rights;
(e) there is a Force Majeure Event (as defined in clause 15.6).

12.5 ‍Exporting your PDA Data.  Whenever possible we will provide you with notice and a reasonable opportunity to export your PDA Data from your PDA prior to termination.  If you fail to take any action as a result, you will lose your access to your PDA Data.


12.6 ‍Effects of termination.  Upon termination of the contract for any reason:
(a) the rights granted to you under these Terms will cease immediately (excluding any rights granted to you under clause 6.1);
(b) any provision of these Terms which expressly or by implication is intended to come into or continue in force on or after termination will survive.

‍12.7 Accrued rights and obligations.  Suspension or termination of the contract shall be without prejudice to any rights, obligations and liabilities that you or we have accrued or incurred during the duration of these Terms.

13. Dispute resolution and arbitration

13.1 Generally. In the interest of resolving disputes between you and Dataswyft in the most expedient and cost effective manner, and except as described in Section 13.2 and 13.3, you and Dataswyft agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DATASWYFT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

13.2 ‍Exceptions. Despite the provisions of Section 13.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

13.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 13 within 30 days after the date that you agree to these Terms by sending a letter to Dataswyft Limited, Attention: Legal Department – Arbitration Opt-Out, 8 Comberton Road, Barton, Cambridge CB23 7BA that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Dataswyft receives your Opt-Out Notice, this Section 13 will be void and any action arising out of these Terms will be resolved as set forth in Section 14. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

13.4 Arbitrator US. Any arbitration between you and Dataswyft will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Dataswyft. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding

13.5 Arbitrator UK and rest of the world. Any alternative dispute resolution between you and Dataswyft will be settled under Alternative Dispute Regulations 2015. Information on alternative dispute resolution can be found on the UK Government website www.gov.uk or by contacting. Dataswyft The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding

13.6 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Dataswyft’s address for Notice of Arbitration is as stated in this agreement. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Dataswyft may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Dataswyft must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Dataswyft in settlement of the dispute prior to the award, Dataswyft will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000. 

13.7 Fees. If you commence arbitration in accordance with these Terms, Dataswyft will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon by yourself and Dataswyft. But if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b) (or English Law), then the payment of all fees will be governed by the AAA Rules or Alternative Dispute Regulation 2015 UK. In that case, you agree to reimburse Dataswyft for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA or Dispute Regulation 2015 UK Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

13.8 No Class Actions. YOU AND DATASWYFT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Dataswyft agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

13.9 Modifications to this Arbitration Provision. If Dataswyft makes any future change to this arbitration provision, other than a change to Dataswyft’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Dataswyft’s address for Notice of Arbitration, in which case your account with Dataswyft will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

13.10 ‍Enforceability. If Section 13.7 or the entirety of this Section 13 is found to be unenforceable, or if Dataswyft receives an Opt-Out Notice from you, then the entirety of this Section 13 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to these Terms.

14. Governing Law

14.1 US - Which laws apply to this contract and where you may bring legal proceedings. If you live in the USA, These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and Dataswyft submit to the personal and exclusive jurisdiction of the state courts and federal courts located within [New York County, New York] for resolution of any lawsuit or court proceeding permitted under these Terms. 

‍14.2 UK and rest of the world - Which laws apply to this contract and where you may bring legal proceedings. If you live in the UK or the rest of the world, these Terms are governed by English law and you can bring legal proceedings in respect of the contract in the English courts. If you live in Scotland you can bring legal proceedings in respect of the contract in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the contract in either the Northern Irish or the English courts..

15. General Provisions

15.1 Reliance on these Terms.  We intend to rely on these Terms and your order. If you require any changes, please make sure you ask for them to be put in writing. This can help avoid any problems about what you expect from us and what we expect from you.

‍E15.2 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

‍15.3 If a court finds part of this contract illegal, the rest will continue in force.   If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

‍15.4 Assignment.  We may transfer our rights and obligations under these Terms to another organization. We will contact you to let you know if we plan to do this. If you are unhappy with the transfer you may contact us to end the contract within 30 days of us telling you about it. You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing. 

‍15.5 Rights of third parties.  This contract is between you and us. No other person shall have any rights to enforce any of its Terms, except as expressly stated in these Terms. Neither of us will need to get the agreement of any other person in order to end the contract or make any changes to these Terms. 

‍‍15.6 Force majeure.  We will not be in breach of these Terms if the failure to perform (or any delay in performance) of any of our obligations is caused by events outside our control ("Force Majeure Event"), including (but not limited to):
(a) unavailability of public or private telecommunication networks; 
(b) power failure or failure of the power grid (or part of it);
(c) ISP equipment failure, host equipment failure, failure of the Internet;
(d) legal restrictions or restrictions imposed by any government; or 
(e) strikes, lock-outs or other industrial action, civil commotion, riot, insurrection, invasion, terrorist attacks or threats of terrorist attacks, war (whether declared or not) or any natural disaster, pandemic, or other event of a magnitude or type for which it is not possible for us to take precautions against.  
Our performance under these Terms is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period.  We will use reasonable efforts to bring the Force Majeure Event to a close, or to find a solution by which our obligations under these Terms may be performed despite the Force Majeure Event.  If the Force Majeure Event continues for a period of more than 30 days, we reserve the right to terminate these Terms in accordance with clause 12.

‍15.7 Notices.  We may provide you with notices (including notices relating to changes to these Terms, or termination of your access to your HAT or the Services) by email to the email address registered in your Account, or by posting the notice on our website here or via the Services.  You may provide notice to us here.

‍15.8 Entire Agreement. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Dataswyft regarding your use of the Services.

‍15.9 Additional Terms. Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

‍15.10 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.

‍15.11 International Use. Access to the Services from countries or territories or by individuals where such access is illegal is prohibited.

16. Definitions and interpretation

16.1

In these Terms, the following words shall be defined as follows:

16.2 Interpretation.  In these Terms unless the context otherwise requires:

(a) words importing the singular include the plural and vice versa and words importing a gender include every gender;

(b) the table of contents and clause headings are included for convenience only and will not affect the interpretation of these Terms;

(c) a reference to a document includes an amendment or supplement to, or replacement of, that document;

(d) a reference to a party, clause, paragraph or schedule is a reference to a party, clause, paragraph and schedule to these Terms; and

(e) references to “including” means including without limitation or prejudice to the generality of any description, definition, term or phrase preceding that word, and “include” and its derivatives shall be construed accordingly.

In the case of conflict between any of the documents forming part of these Terms, the following order of precedence will apply to the extent of such conflict:  (1) the PDA Owner Agreement; (2) the PDA Acceptable Use Policy; (3) the PDA Privacy Policy and (4) any other policies listed on the Dataswyft website.

Data Processing Schedule

1. Application of Schedule.  This Data Processing Schedule will only apply when we and our service providers process your PDA Data (including Personal Data) on your behalf as your processor, AND the processing is subject to the GDPR.  This Schedule will apply, for example, when we are hosting your PDA Data in the cloud or backing it up to keep it secure.  It will NOT apply to any processing we carry out as a controller in our own right.
   

2. ‍Instructions:  we will process your PDA Data only as permitted under these Terms and in line with your instructions.
   
   

3. Confidentiality:  we will ensure that anyone we authorise to process the PDA Data on our behalf has agreed to comply with confidentiality obligations in respect of their processing of your PDA Data.
   

4. ‍Appointment of sub-processors:  you agree that we may engage third parties to provide services on our behalf involving your PDA Data (“Subprocessors”).  A list of our Subprocessors is available upon request.  We will inform you of any intended changes concerning the addition or replacement of any Subprocessors in order to give you an opportunity to object.  You may only object to any changes on reasonable, objective and substantive grounds and provided you notify your objection to us within 14 days of being notified of the change.  We will remain responsible for our Subprocessors’ performance of their obligations and we will ensure we have a contract in writing with them that flows down materially similar obligations to those set out in this Schedule.
   

5. Your data subject rights:  we will use appropriate technical and organisational measures (insofar as possible) to assist you with the fulfilment of your rights of access, rectification, portability, objection and deletion to the extent you are not able to exercise these rights on your own.
   

6. Security:  taking into account industry standards, the costs of implementation, and the nature of the processing, we will implement appropriate technical and organisational measures to ensure a level of security for the PDA Data that is appropriate to the risk.  
   

7. International transfers:  where the provision of hosting or back up services (or similar services which we provide as a processor) involve a transfer of personal data from the European Economic Area (EEA) or UK to countries outside the EEA or UK, you agree that we can carry out such transfer as long as we have in place appropriate protection to safeguard the PDA Data being transferred.
   

8. Breach notification:  we will notify you without undue delay of any breaches of security that lead to the unauthorised disclosure of PDA Data and work with you to determine how to mitigate and resolve such breach.
   

9. Deletion or return:  we will delete or return all PDA Data (including Personal Data) to you upon request if you are unable to delete or obtain this data yourself.
   

10. Audit and investigation:  we will make available to you all reasonably requested information to demonstrate our compliance with the obligations set out in this Data Processing Schedule and allow for and contribute to audits, including inspections, subject to the provision by you of reasonable notice and conditional upon our agreeing an audit plan that describes the proposed scope, duration and start date of any audit and any relevant conditions.