This Cloudamize Software Subscription Agreement (the “Agreement”) governs your access to and use of the Cloudamize Software. By accepting this Agreement or otherwise accessing and/or using the Cloudamize Software, you agree to be bound by this Agreement on behalf of yourself and on behalf or your organization (“You”, “Your” or “Licensee”). This Agreement is effective between the You and Cloudamize Inc. and its Affiliates (“Cloudamize”) as of the date of acceptance and/or use of the Cloudamize Software.
1.1 “Affiliate” means with respect to either party, an entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Party, where “control” means (i) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise, and/or (ii) ownership of at least fifty percent (50%) of the voting stock, shares or interests of any such entity.
1.2 “Authorized User” means any of Your employees, consultants, contractors or agents authorized by Your administrator to access and use the Cloudamize Software on behalf of Your business for internal business purposes, in each case subject to such person's agreement to be bound by the terms of this Agreement and any Order Form.
1.3 “Cloudamize Software” means the Cloudamize cloud technology software platform, any and all Intellectual Property (as defined below), templates, modules, or other materials resulting from or contained in the software platform, but specifically excluding: (a) the underlying physical infrastructure which the Cloudamize Software accesses and relies upon; (b) the infrastructure made available by a third-party cloud infrastructure provider; (c)Your Data which utilizes or is available through the Cloudamize Software; and (d) Cloudamize third-party licensed materials.
1.4 “Cloud Infrastructure Services” means one or more public or private cloud computing services for the provision of compute capacity, data storage, data transmission, network and related infrastructure services.
1.5 “Confidential Information” includes proprietary and third-party information that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be considered to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third-party.
1.6 “Intellectual Property” means any and all code, patents, rights to inventions, utility models, copyrights, trademarks, database rights, moral rights, rights in either Party’s Confidential Information (including know-how and trade secrets) and any other intellectual property rights in any part of the world.
1.7 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.8 “Order Form” means a document detailing Your access to the Cloudamize Software, specifically the quantity, term, license fees, start and/or end date, End User name, and any other terms relating to Your rights and obligations in connection with the Cloudamize Software.
1.9 “Party” or “Parties” means either a single party, or both parties to this Agreement.
1.10 “Your Data” means any and all data, materials, content or information entered into, transmitted through, or stored on the Cloudamize Software by You or Your Users, or otherwise made available or accessible to Cloudamize by You or Your Users.
2.1 License Grant. Subject to the terms of this Agreement, any Order Forms and payment of all applicable license fees, Cloudamize grants You a revocable, worldwide, non-exclusive, non-sublicensable, non-transferable license to access and use the Cloudamize Software as detailed at https://www.cloudreach.com/en/legal/cloudreach-service-definitions-and-specifications/ for Your internal business purposes by Your Authorized User(s), for the Order Form Term (defined below).
2.2 Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to You, express, implied. All rights not granted in this Agreement are reserved by Cloudamize.
2.3 Open Source Software. Cloudamize may distribute certain Open Source Software with the Cloudamize Software. Any Open Source Software distributed as part of the Cloudamize Software shall be “as is.” You shall have only such rights and/or licenses, if any, to use the Open Source Software as are set forth in the license applicable to such Open Source Software.
3. OUR RESPONSIBILITIES
3.1 Access. Cloudamize will make the Cloudamize Software available to You and Your Authorized Users pursuant to this Agreement and any applicable Order Forms.
3.2 Support. Cloudamize will provide support pursuant to the applicable product specifications available at https://www.cloudreach.com/en/legal/cloudreach-service-definitions-and-specifications/.
3.3 Your Data. Cloudamize will maintain appropriate physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Cloudamize will not use or disclose any of Your Data, other than as necessary in the provision of the Cloudamize Software pursuant to this Agreement.
3.4 Personnel. Cloudamize will be responsible for the performance of its personnel (including Cloudamize employees and contractors) and their compliance with Cloudamize’s obligations under this Agreement.
3.5 Modification of the Cloudamize Software. Cloudamize reserves the right to modify the Cloudamize Software on 90 days’ notice to You, provided that: (i) Cloudamize shall not modify the Cloudamize Software for any active Order Forms; and (ii) if such modifications materially impact Your use of the Cloudamize Software pursuant to this Agreement, You may terminate this Agreement immediately upon written notice to Cloudamize.
4. USE OF THE TECHNOLOGY; LICENSEE RESPONSIBILITIES
4.1 Licensee Responsibilities. You will: (i) be responsible for identifying and authenticating all Authorized Users, for approving access by such Authorized Users to the Cloudamize Software, for controlling against unauthorized access by Authorized Users; (ii) be responsible for Your and Your Authorized Users’ agreement to and compliance with this Agreement, and any applicable Order Forms; (iii) be responsible for the accuracy, quality and legality of Your Data; (iv) use all reasonable efforts to prevent unauthorized access to or use of the Cloudamize Software and notify Cloudamize as soon as possible of any such unauthorized access or use; (v) use the Cloudamize Software only in accordance with this Agreement and any Order Forms; (vi) select Your Cloud Infrastructure Service(s) and be solely responsible for ensuring your compliance with any terms and conditions governing your use of or access to any Cloud Infrastructure Services and Open Source Software; and (vii) comply with all applicable laws and regulations.
4.2 Licensee Infrastructure. You retain sole responsibility for its information technology infrastructure, including, computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by You or through third-party providers, as well as the security and use of You and Your Authorized Users’ access credentials, and all access to and use of the Cloudamize Software.
4.3 Usage Restrictions. You may not: (i) make the Cloudamize Software available to anyone outside of the Authorized Users; (ii) sell, resell, lease, license, sublicense, distribute or otherwise make the Cloudamize Software available to any third-parties, other than any license rights expressly granted in this Agreement and any Order Form, or grant or attempt to grant any third-party such rights; (iii) use the Cloudamize Software to upload, transmit, store, or share any information or materials that infringes the intellectual property or privacy rights of a third-party, or information or material that is unlawful; (iv) use the Cloudamize Software to transmit any Malicious Code; (v) attempt to gain, or assist another party’s attempt to gain, unauthorized access to the Cloudamize Software; (vi) disassemble, decompile, reverse engineer, copy, modify, or create derivative works from the Cloudamize Software, unless expressly permitted in an Order Form; (vii) build a product that is competitive to the Cloudamize Software; or (viii) commercially exploit the Cloudamize Software, provided that You may use the Cloudamize Software Your internal business purposes and any resulting generally applicable outcomes for Your customers or clients. Any violation of these restrictions shall be considered a material breach of this Agreement.
4.4 Patches and Updates. Cloudamize may update or provide patches or updates to the Cloudamize Software at any time. As a result, Cloudamzie may require You to accept such patches or updates to the Cloudamize Software (with or without notification to You) and You agree that the version of each Cloudamize Software to which You are granted a license shall be the version of each Cloudamize Software which is then generally made available by Cloudamize. You may need to update third-party software or other technology from time to time in order to use the Cloudamize Software.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall continue until terminated by either party (the “Term”).
5.2 Cloudamize Software Access Term. Your access to the Cloudamize Software shall begin on the date specified in the applicable Order Form and continue for the term set forth in that Order Form (the “Order Form Term”). If no term is defined in an Order Form, the Order Form Term shall be 12 months from the date of Your access to the Cloudamize Software.
5.3 Termination. This Agreement may be terminated: (i) by either Party for any reason on 30 days’ written notice to the other Party; (ii) immediately by mutual agreement of the parties; or (iii) on notice of one Party, if the other Party is in material breach of this Agreement, provided that following such notice of a material breach, the breaching Party shall have 14 days from receipt of the notice to cure such breach; (iv) immediately in the event that either Party commences a liquidation or dissolution or becomes the subject of a bankruptcy or insolvency proceeding, by the Party not commencing the liquidation, dissolution or bankruptcy/insolvency proceeding; or (v) immediately by Cloudamize if You or any of Your Authorized Users breach any term or condition set forth in this Agreement, or if Cloudamize reasonably believes that any such breach is threatened by You or Your Authorized Users.
5.4 Active Order Forms at Termination. If there are any Order Forms still in effect at the termination of this Agreement, the Parties agree to fulfill their respective obligations under such Order Form until the applicable Order Form Term has expired, as if this Agreement were still in effect.
5.5 Surrender of Materials. Notwithstanding anything to the contrary herein, the parties may keep copies of any materials, data, or other information beyond the Term of this Agreement only as necessary to comply with applicable legal or regulatory requirements.
6. BILLING AND PAYMENT
6.1 Fees. You will pay all fees and costs specified in an Order Form. You must notify Cloudamize of any disputed charges within 10 business days from the receipt of an invoice, otherwise You waive the right to dispute such fees. Unless specified otherwise on an Order Form, You will pay for Your access to the Cloudamize Software annually, in advance, with the first invoice to be issued on the effective date of an Order Form. If no effective date is defined, Cloudamize shall provision access and invoice upon execution of an Order Form.
6.2 Invoice Due Date. You will pay all invoices within 30 days of the invoice date.
6.3 Taxes and Withholding. You are solely responsible for any applicable VAT, sales, use or any other taxes payable under, or arising out of, or in connection with this Agreement.
6.4 Unpaid Amounts. Unpaid amounts will be subject to a monthly late fee of 1.5% of the outstanding balance, or the maximum legally allowable interest rate, whichever is lower. If an invoice is not paid in full, or disputed pursuant to the method set forth above, Cloudamize may suspend Your access to and use of the Cloudamize Software.
6.5 True Up. Cloudamize reserves the right to charge You for use of the Cloudamize Software in excess of the license(s) purchased in any Order Form. Cloudamize may exercise this right at the end of any Order Form Term (as defined below).
7. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
7.1 Intellectual Property Rights. Except as explicitly set forth in this Agreement or an Order Form, Licensee shall have no right, title, or interest in the Cloudamize Software or Intellectual Property contained therein. You shall retain all rights in Your Data. Cloudamize shall have a license to use Your Data only as required to provide the Cloudamize Software. Except with Cloudamize’s prior written consent, Licensee shall not: (a) distribute modified Cloudamize Software; (b) remove any copyright, proprietary notice, or license information from any Cloudamize Software or documentation; or (c) use the Cloudamize Software in any manner or for any purpose not specifically permitted by this Agreement. Cloudamize owns and retains all right, title, and interest in the Cloudamize Software and all Intellectual Property rights inherent therein, including, without limitation, all changes incorporated into the Cloudamize Software by Cloudamize, even if originally requested or suggested by Licensee and/or any Authorized User. Any unauthorized use of the Cloudamize Software will constitute a material breach of this Agreement.
7.2 Feedback. Feedback. You grant Cloudamize the worldwide, perpetual, irrevocable, and royalty-free license to use any feedback provided by You or Your Users relating to the use or operation of the Cloudamize Software.
7.3 Aggregated Anonymous Statistics. Notwithstanding anything else in this Agreement, Cloudamize may monitor Licensee’s use of the Cloudamize Software and use data and information related to such use, Cloudamize Software, and other information in an aggregated and anonymized manner (which shall include the removal of identifying information such as phone number, Authorized User names and specific Licensee information) including to compile statistical and performance information related to the operation of Cloudamize Software, and to improve features and functions in these (“Aggregated Anonymous Statistics”). As between Cloudamize and Licensee, all right, title and interest in the Aggregated Anonymous Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Cloudamize. Licensee acknowledges that Cloudamize will be compiling Aggregated Anonymous Statistics based on Cloudamize Software and information input by Licensee and Authorized Users into the Cloudamize Software, and Customer agrees that Cloudamize may (a) make such Aggregated Anonymous Statistics publicly available, and (b) use such information to the extent and in any manner permitted by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Licensee, an Authorized User, or Licensee’s Confidential Information.
8. DATA PROTECTION
8.1 Data Protection Laws. Both parties agree to comply with all applicable data protection laws, rules, and regulations.
8.2 Data Protection Exhibit. If applicable, both parties agree that the Cloudamize Data Protection Agreement, available at https://drive.google.com/file/d/1fedlCQ2woViXK0MlkxNAP5ZXnCgAMt6f/view, shall apply to the control, processing, and use of any of Your Data under this Agreement or any Order Form.
9.1 To the extent that Confidential Information of either Party and its affiliates is disclosed and/or received by the other Party or its affiliates, each Party agrees not to use the other Party’s Confidential Information except in the performance of or as authorized by this Agreement, and not to disclose, sell, license, distribute or otherwise make available such information to third-parties. Use by third-party contractors may be permitted so long as such contractor has a need to know and is required to maintain the confidentiality of such information as required by this Section.
10. LIMITED WARRANTIES, LIMITATION OF LIABILITY, AND DISCLAIMERS
10.1 LIMITED WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE CLOUDAMIZE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE”. CLOUDAMIZE DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR THAT THE CLOUDAMIZE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED.
10.2 NO WARRANTY FOR CLOUD INFRASTRUCTURE SERVICE. THE CLOUD INFRASTRUCTURE SERVICE IS NOT PROVIDED OR CONTROLLED BY CLOUDAMIZE AND IS NOT PART OF THE CLOUDAMIZE SOFTWARE OR ANY CLOUDAMIZE PRODUCT. CLOUDAMIZE IS NOT RESPONSIBLE FOR THE CLOUD INFRASTRUCTURE SERVICE IN ANY WAY.
10.3 LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING ANY COST OF COVER, LOST PROFITS, LOST GOODWILL, LOST USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLOUDAMIZE WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN ANY CASE, EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID AND CANNOT BE LIMITED BY CONTRACT, THE PARTIES AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES AND THAT EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY OR OTHER FINANCIAL CLAIM (OTHER THAN PAYMENTS AS THEY BECOME DUE) WHETHER IN CONTRACT, TORT, FOR INDEMNIFICATION OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU UNDER THE RELEVANT ORDER FORM DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, UP TO A MAXIMUM OF $1,000,000.
11.1 Cloudamize Indemnification. Cloudamize will indemnify You against damages arising from a third-party claim where there is a finding by a court of competent jurisdiction that Your use of the Cloudamize Software infringes the Intellectual Property rights of that third-party.
11.1.1 If Cloudamize becomes aware of any infringement claim related to the Cloudamize Software, Cloudamize may, in its sole discretion and at no cost to You: (i) modify the Cloudamize Software so that its is no longer claimed to infringe; (ii) obtain a license for You to use the Cloudamize Software pursuant to this Agreement; or (iii) terminate this Agreement and/or any affected Order Form on 30 days’ written notice to You and provide a pro-rata refund to You for the affected period.
11.1.2 Cloudamize will have no obligation to indemnify You if: (i) the claim against You arises from the use of the Cloudamize Software in combination with any products, software, or technology provided by a third-party; (ii) if the claim against You arises out of any use of the Cloudamize Software that violates this Agreement; or (iii) if the claim against You arises out of any modification or alteration of the Cloudamize Software performed by You or at Your direction.
11.2 Licensee Indemnification. Licensee will indemnify Cloudamize against damages arising from a third-party claim against Cloudamize, (i) that any information, design, specification, instruction, software, service, data, hardware, or material furnished by Licensee or an Authorized User infringes a third-party’s intellectual property rights, (ii) against any breach by You or an Authorized User of this Agreement.
11.3 Indemnification Process. Any claim for indemnification pursuant to this Agreement shall be conditioned on the indemnified Party: (i) promptly notifying the indemnifying Party in writing of any such suit; (ii) granting the indemnifying Party sole control of the proceedings (including without limitation the right to settle on the indemnified Party’s behalf); and (iii) cooperating at all times with the indemnifying Party in connection with its defense at the indemnifying Party’s reasonable expense.
12.1 Compliance with Law. Both Parties represent that they shall comply with all applicable laws, rules, and regulations.
12.2 Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Cloudamize Software. You agree that such export control laws govern Your use of the Cloudamize Software and agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information and/or Cloudamize Software will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws. You further represent and warrant that: (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
12.3 Force Majeure. Neither Party shall be liable for delays and/or defaults in its performance under this Agreement due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of god, fire or explosion, flood, telecommunication system failure, war, acts of or acts terrorism, or any other cause beyond a Party’s reasonable control.
12.4 Cloudamize Marketing Rights. Cloudamize may use Your name, trademarks or service marks, and reference to this Agreement in promotional and marketing materials, public announcements or required disclosures, subject to any branding or other guidelines provided by You from time to time, only on Your written consent.
12.5 Audit Rights. You will keep accurate records in the normal course relating to this Agreement. Cloudamize may, no more than once per year of the Term and on reasonable notice to You, request access to copies of any such records. In the event such audit discloses non-compliance with the Agreement, without limiting any other remedy hereunder, You shall promptly pay to Cloudamize the appropriate fees to remedy such non-compliance, plus the reasonable cost of conducting the audit.
12.6 Waiver. The failure of either Party to enforce any of the terms or conditions of this Agreement shall not constitute a waiver of any term or condition of this Agreement.
12.7 Assignment. Neither Party may assign or transfer any right, obligation or duty, in whole or in part, or any other interest hereunder without the written consent of the other Party, except that Cloudamize may freely assign to an affiliate or successor by merger, reorganization, consolidation or sale of some or all of its assets, without Your prior written consent.
12.8 Severability. Should any part, term or provision of this Agreement or any Order Form be declared invalid, void or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the Parties with all terms and provisions remaining in full force and effect.
12.9 Applicable Law. This Agreement shall be governed by the laws of the State of New York without regard to its choice of law provisions.
12.10 Relationship of the Parties. The Parties to this Agreement are independent contractors and nothing in this Agreement will be deemed or construed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between You and Cloudamize. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.
12.11 Entire Agreement. The Agreement and any Order Form, as amended from time to time, constitutes the entire agreement between the Parties with regard to the subject matter herein. In the event of a conflict between this Agreement and an Order Form, the terms of this Agreement shall prevail.
12.12 Survival. All provisions that logically ought to survive termination of this agreement shall survive.