TERMS OF SERVICE EFFECTIVE AS OF January 10, 2017
THESE TERMS OF SERVICE, INCLUDING THE ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE, WHICH IS INCORPORATED HEREIN BY THIS REFERENCE (COLLECTIVELY, THE “TERMS”), ARE A BINDING LEGAL CONTRACT BETWEEN CLOUDAMIZE, INC. (“CLOUDAMIZE”), AND THE INDIVIDUAL OR LEGAL ENTITY WHO SUBSCRIBES TO OR PURCHASES THE CLOUDAMIZE PRODUCTS (“YOU” OR “YOUR”). BY CLICKING THE “I AGREE” BUTTON, BY EXECUTING AN ORDER FORM WITH AN AUTHORIZED RE-SELLER OR PARTNER OF CLOUDAMIZE, OR BY INSTALLING, ACCESSING OR USING THE CLOUDAMIZE PRODUCTS, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS. IF YOU DO SO ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THESE TERMS ON BEHALF OF THAT LEGAL ENTITY.
THESE TERMS GOVERN YOUR USE OF ANY CLOUDAMIZE PRODUCTS AND ANY RELATED UPDATES AND WRITTEN DOCUMENTATION. YOUR CONTINUED USE OF CLOUDAMIZE PRODUCTS FOLLOWING MODIFICATION TO SUCH PRODUCTS OR THESE TERMS CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THE APPLICATION OF THE TERMS TO SUCH MODIFIED PRODUCTS OR THE MODIFIED TERMS. TO STAY INFORMED OF ANY CHANGES, PLEASE REVIEW THE MOST CURRENT VERSION OF THESE TERMS AT WWW.CLOUDAMIZE.COM/TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE CLOUDAMIZE PRODUCTS.
“Account” corresponds to your account established in connection with use of the Cloudamize Platform, represented in each case by a single set of access credentials from Cloudamize and the applicable Cloud Infrastructure Service.
“Ancillary Programs” means any software agent or tool owned or licensed by Cloudamize that Cloudamize makes available to you for download on your Cloud Infrastructure Service as part of the Purchased Products for purposes of facilitating your access to, operation of and/or use with, the Purchased Products. For clarity, all restrictions, limitations, disclaimers, obligations and conditions applicable to Products and Purchased Products shall apply equally to Ancillary Programs.
“Authorized User” means any individual you authorize to access or use the Purchased Products on your behalf and to whom access credentials are provided by Cloudamize. The number of Authorized Users may be limited as specified in an Order Form.
“Cloudamize Components” means any template, script, machine image, macro or other technology or documentation published to or available from Cloudamize.
“Cloudamize Materials” means any software developed by Cloudamize and distributed to or accessed by you hereunder as well as any documentation relating to the Products.
“Cloudamize Platform” means, collectively, the Cloudamize cloud services platform, any and all Cloudamize Components, Cloudamize Materials and Products related thereto, including the data and information relating thereto, but specifically excluding: (a) the underlying physical infrastructure which the Cloudamize Platform accesses and relies upon, (b) the infrastructure made available by a Cloud Infrastructure Provider, and (c) your software, applications, and data, and any other third-party software, applications or data which utilize or are available through the Cloudamize Platform.
“Fees” means the fees and charges set forth on http://cloudamize.com/pricing and incorporated herein by this reference or those fees and charges specified in a Statement of Work.
“Intellectual Property Rights” means all worldwide right, title and interest in and to all proprietary rights of every kind and nature pertaining to or deriving from any of the following, whether protected, created or arising under the laws of the United States or any other jurisdiction: (a) foreign and domestic patents and patent applications (including reissuances, divisions, renewals, provisional applications, continuations, continuations in part, revisions, extensions and re-examinations), and all inventions (whether patentable or not), invention disclosures, and improvements thereof (collectively, “Patents”); (b) trademarks, service marks, trade names, designs, logos or other source identifiers, including as defined in 15 U.S.C. § 1127, whether registered or unregistered or at common law, including all foreign and domestic applications, registrations and renewals in connection therewith, and all goodwill of the business or otherwise associated with any of the foregoing (“Trademarks”); (c) Internet domain names and other Internet addresses, and user names, accounts, including social networking accounts, pages, and online identities (collectively, “Domain Names”); (d) copyrights, original works of authorship, and all databases and data collections, whether registered or unregistered, and including all applications, registrations and renewals of any such thing, and all moral rights associated therewith (“Copyrights”); (e) know-how, source code, object code, inventions, discoveries, improvements, concepts, ideas, methods, processes, designs, plans, schematics, drawings, formulae, recipes, manufacturing processes, customer and market lists, technical data, specifications, research and development information, technology and product roadmaps, data bases and other proprietary or confidential information (including Confidential Information) (collectively, “Proprietary Information”); (f) all computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code or other readable code (collectively, “Software”); (g) all rights of publicity, rights of privacy and related rights; and (h) all causes of action, whether accruing before, on or after the Effective Date, including all rights to and claims for damages, restitution, income, royalties, payments and other relief, with respect to the foregoing, the right to sue and recover damages and payments for past, present and future infringements or misappropriations thereof, the right to file applications for and to secure and maintain registrations or issuances in and make all related filings for any of the foregoing in any jurisdiction and any and all corresponding rights that now or hereafter may be secured throughout the world, and all copies and tangible embodiments thereof. Collectively, Patents, Trademarks, Domain Names, Copyrights, Proprietary Information and Software shall be referred to herein as “Intellectual Property”.
“Order Form” means a written document signed by you and Cloudamize, or an electronic form submitted by you and accepted by Cloudamize, that identifies a Product that you have agreed to purchase. In the event of a conflict between these Terms and an Order Form, these Terms shall govern.
“Partner” or “Re-Seller” means a third party who Cloudamize appoints as its non-exclusive marketer and/or partner of some or all of the Products pursuant to the terms of a Partner Agreement or Re-Seller Agreement, as appropriate, with Cloudamize.
“Products” means the products and related services made available by Cloudamize from time to time, including, but not limited to, the Cloudamize Platform and any and all other Cloudamize Components and Cloudamize Materials. A list and description of the Products currently made available by Cloudamize is available at http://www.cloudamize.com/platform.
“Purchased Products” means the specific Products that you have agreed to purchase as set forth in an Order Form or other binding purchase commitment.
“Term” means the subscription term during which Cloudamize will make Products available to Authorized Users as set forth in an Order Form.
“Third Party Materials” means any third-party materials, software, technology, information or data, including Intellectual Property, made available to you by Cloudamize.
“Your Data” means any and all data, content or information entered into, transmitted through, or stored on the Cloudamize Platform by you or your Authorized Users or otherwise made available or accessible to Cloudamize by you or your Authorized Users, including, without limitation, any Keys (as defined in Section 4(d) below).
a. Subject to and conditioned on your and your Authorized Users’ (if any) compliance with these Terms, Cloudamize shall use commercially reasonable efforts to make Purchased Products available to you and your Authorized Users pursuant to these Terms and the terms and conditions of the relevant Order Form during the applicable Term, subject to scheduled downtime, service downtime due to a Force Majeure Event (as set forth in Section 17), events outside of Cloudamize’s control or any suspension or termination of your access to or use of the Purchased Products as permitted herein. Subject to and conditioned on your payment of all Fees and compliance and performance in accordance with all other terms and conditions of these Terms or any Order Form, during the applicable Term, Cloudamize hereby grants to you and your Authorized Users the right to access and use the Purchased Products solely for your own internal business purposes. The foregoing license is non-exclusive, non-sublicensable and non-transferable. You understand and agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Cloudamize or its representatives regarding future functionality or features of any Products.
b. As part of the Purchased Products, Cloudamize may provide you with access to or the ability to download certain Ancillary Programs for use with those Purchased Products. If Cloudamize does not specify separate terms and conditions for such Ancillary Programs, you shall have a non-transferable, non-exclusive, non-assignable, non-sublicensable, revocable, limited right to use such Ancillary Programs solely to facilitate your access to, operation of, and/or use of the Purchased Products solely for your own internal business purposes, subject to these Terms and the applicable Order Form. Your right to use such Ancillary Programs will terminate upon the earlier of Cloudamize’s termination of your access to the Purchased Products, the expiration or termination of these Terms, the end of the applicable Term or the date on which the license to use the Ancillary Programs ends under the separate terms specified for such Ancillary Programs. All right, title and interest in and to the Ancillary Programs shall remain with Cloudamize or the third-party rights holder to the extent any Ancillary Programs are subject to a third-party license. Except as otherwise expressly set forth herein, nothing in these Terms grants you or your Authorized Users any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Products, including, but not limited to, the Purchased Products, Ancillary Programs or any Third Party Materials, whether expressly, by implication or estoppel, or otherwise. All right, title and interest in and to the Products, Ancillary Programs and the Third Party Materials remain with Cloudamize and the respective third party rights holders.
c. You understand and agree that Cloudamize may, in its sole discretion, hire or engage third parties to perform services in connection with the Purchased Products, including, but not limited to, hosting, managing, operating and maintaining the Clouamize Platform, including, for remote electronic access and use by you and your Authorized Users, and storing, processing, managing, maintaining, and/or transmitting Your Data, Cloudamize Materials, Cloudamize Components and/or Ancillary Programs.
3. Cloud Infrastructure Service
a.You are responsible for selecting one or more public or private cloud computing services for the provision of compute capacity, data storage, data transmission, network and related infrastructure services (“Cloud Infrastructure Services”). You are solely responsible for ensuring your compliance with any terms and conditions governing your use of or access to any Cloud Infrastructure Services, including, but not limited to, ensuring that your use of or access to the Purchased Products and use of, access to and downloading of the Ancillary Programs onto such Cloud Infrastructure Services does not breach or otherwise violate any such terms and conditions or other such law, regulation or policy.
b. The Cloud Infrastructure Services that operate with the Cloudamize Platform are identified on Cloudamize’s website (each a “Certified Infrastructure Service”) and may be changed by Cloudamize from time to time. You understand and agree that the full benefits of the Cloudamize Platform may not be available if you do not elect to use a Certified Infrastructure Service and Cloudamize bears no liability or responsibility for any matters arising from or relating to your use of a Cloud Infrastructure Service that is not a Certified Infrastructure Service. Furthermore any use of private Cloud Infrastructure Services by you is subject to installation specifications, which may be changed by Cloudamize from time to time.
c. All of your use of a Cloud Infrastructure Service is subject to the third-party provider’s terms and conditions, and you agree to comply with those terms and conditions related to the Cloud Infrastructure Service as made available to you from time to time and, as set forth in Section 3(a) herein, to be solely liable and responsible for any breach of such terms and conditions by you or your Authorized Users. Your breach of the terms and conditions regarding the Cloud Infrastructure Service will be considered a breach of these Terms. If Cloudamize is providing a single bill for the Products and Cloud Infrastructure Service, Cloudamize may terminate that single billing arrangement at any time and for any reason upon written notice to you.
d. THE CLOUD INFRASTRUCTURE SERVICE, INCLUDING CERTIFIED INFRASTRUCTURE SERVICE, IS NOT A CLOUDAMIZE SERVICE AND IS NOT PART OF THE CLOUDAMIZE PLATFORM OR ANY PRODUCT. CLOUDAMIZE IS NOT RESPONSIBLE FOR THE CLOUD INFRASTRUCTURE SERVICE OR FOR ANY ACTS OR OMISSIONS OF THE THIRD-PARTY PROVIDER OF THE CLOUD INFRASTRUCTURE SERVICE. CUSTOMER ACKNOWLEDGES THAT THE PROVIDER OF THE CLOUD INFRASTRUCTURE SERVICE MAY IMPLEMENT PROCEDURES THAT WOULD MAKE IT DIFFICULT OR IMPOSSIBLE TO ACCESS CLIENT’S DATA, OR THE RESOURCES MADE AVAILABLE VIA THE CLOUD INFRASTRUCTURE SERVICE, IN CERTAIN CIRCUMSTANCES (E.G., IN THE CASE OF A VIRUS, DENIAL-OF-SERVICE, OR SIMILAR ATTACK; TRANSMISSION OR STORAGE OF INFRINGING OR ILLEGAL CONTENT; USE FOR BULK EMAIL; USE THAT COULD OR DOES HARM THE THIRD-PARTY’S NETWORKS OR SERVERS; OR COMPROMISE OF SECURITY) AND MAY IMPLEMENT DIFFERENT PRIVACY POLICIES AND/OR ADMINISTRATIVE, TECHNICAL AND/OR PHYSICAL SAFEGUARDS CONCERNING THE STORAGE, HANDLING, MAINTENANCE, PROCESSING, DISTRIBUTION OR DISCLOSURE OF YOUR DATA. CLOUDAMIZE EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF YOUR USE OF OR ACCESS TO ANY CLOUD INFRASTRUCTURE SERVICE OTHER THAN A CERTIFIED INFRASTRUCTURE SERVICE.
4. Your Responsibilities
a. General. You shall (i) be solely responsible for each of your Authorized User’s compliance with these Terms and understand and agree that any breach of these Terms by any of your Authorized Users shall constitute a breach by you, (ii) be solely responsible and liable for the accuracy, quality and legality of Your Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Purchased Products and/or Ancillary Programs, including, but not limited to implementing appropriate physical, technical and administrative safeguards to protect against the unauthorized disclosure of any access credential; (iv) notify Cloudamize promptly of any such unauthorized access or use, and (v) use the Purchased Products only in accordance with these Terms and all applicable laws and government regulations.
b. Your Accounts and Authorized Users. Accounts may not be transferred or assigned to another entity without the written consent of Cloudamize. Access credentials provided to an Authorized User to access an Account may not be shared or used by any person or entity other than that Authorized User.
c. Your Back-Ups. You acknowledge that you are responsible for creating back-ups of Your Data and any other content provided or used by you within the Cloudamize Platform. Cloudamize shall have no obligation to maintain any such data or content or to forward any data or content to you or any third party at any time during the Term or thereafter. CLOUDAMIZE HAS NO AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF YOUR DATA.
d. Your Keys. You may elect to provide Cloudamize access to keys, credentials, or passwords (“Keys”) to access your applications and/or technology infrastructure. By providing Cloudamize any such Keys, you authorize Cloudamize to use those Keys and to access your corresponding applications and infrastructure for the purpose of providing Purchased Products under these Terms.
e. General Restrictions. Unless otherwise expressly authorized under these Terms or an Order Form, You shall not (i) make any Purchased Products available to anyone other than Authorized Users, (ii) sell, sublicense, resell, rent, transfer, distribute or lease any Products, or use any Product in a time-sharing, outsourcing or service bureau environment or in any manner which supports the business operations of a third party, (iii) use any Products to store or transmit infringing, libelous, or otherwise unlawful or tortious material, content, information or data, or to store or transmit material, content, information or data that is in violation of any third-party rights, including but not limited to, privacy rights and Intellectual Property Rights, (iv) interfere with or disrupt the integrity or performance of the Cloudamize Platform; (v) attempt to access or obtain any third-party data contained on the Cloudamize Platform, or (vi) attempt to gain unauthorized access to the Cloudamize Platform or any related systems or networks.
f. SaaS Delivery; Downloadable Agents. As a general matter, the Purchased Products are made available to you for use (subject to the terms and conditions hereof) over the internet on a remote-access, subscription basis utilizing a “SaaS” (Software as a Service) delivery model. Certain Ancillary Programs and/or other components of the Purchased Products (“Agents”) are designed to be downloaded to your Cloud Infrastructure Services. You may only download those Ancillary Programs or other components of the Purchased Products which are expressly authorized for download by Cloudamize in the applicable, generally-available documentation. All restrictions (including all usage and licensing restrictions), conditions, disclaimers, limitations and obligations applicable to Products and Purchased Products shall apply equally to such Agents.
g. Updates. In light of the evolving nature of technology, we may modify or update the Purchased Products at any time. As a result, we may require you to accept modifications or updates to the Purchased Product (with or without notification to you) and you agree that the version of each Purchased Product to which you are granted rights of use hereunder shall be the version of each Purchased Product which is then generally made available by Cloudamize for its client base at large. You may need to update third party software or other technology from time to time in order to use the Purchased Products.
h. Service-Specific Restrictions. Individual Products may be subject to other limitations set forth in the Order Form, such as limits on disk storage space, compute capacity, and support requests.
i. Cooperation.You agree to provide all cooperation and assistance as Cloudamize may reasonably require or request to enable Cloudamize to perform its obligations under these Terms. Cloudamize is not responsible or liable for any delay or failure of performance directly or indirectly caused by your delay in performing your obligations under these Terms.
Certain Products may involve the development or addition of new features, enhancements or customizations to the Cloudamize Platform or other Products (“Deliverables”). Cloudamize will perform development work and related services to provide you with any such Deliverables pursuant to a separate statement of work to be mutually agreed upon by the parties (a “Statement of Work”). Each Statement of Work shall set forth the specifications, fees and other relevant provisions for the Deliverables and shall be attached hereto and incorporated into these Terms. In the event of a conflict between these Terms and the terms of a Statement of Work, these Terms shall govern. The terms and conditions of each Statement of Work will control solely with respect to the Deliverables to be provided under such Statement of Work. Unless as otherwise set forth in a Statement of Work, Cloudamize shall own all right, title and interest in and to such Deliverables, including all Intellectual Property Rights therein and you hereby assign all right, title and interest, including Intellectual Property Rights, in and to such Deliverables to Cloudamize.
6. Pricing and Payment Terms
a. Fees. You shall pay all Fees that are applicable to your Purchased Products in accordance with the terms set forth herein. Except as otherwise specified herein or in a Statement of Work, you agree that (i) Fees are based on the number of active instances, contract length and hourly runtime of active instances, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) the number of Administrative Licenses covered by a subscription cannot be decreased during the relevant term.
b. Invoicing. During the Term, Cloudamize will charge the Fees for your Purchased Products to the account on file on an annual or monthly basis as set forth in the Order Form for the Purchased Products. Receipts for payment will be provided on a monthly or annual basis, as applicable. Notwithstanding the foregoing, if you are purchasing Purchased Products through an authorized Re-seller or Partner of Cloudamize, then the Re-seller or Partner will charge the Fees for your Purchased Products in accordance with the invoicing and payment terms provided by the re-seller or partner.
c. Taxes. All Fees payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide Cloudamize any information Cloudamize may reasonably request to determine whether Cloudamize is obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing Cloudamizes with legally-sufficient tax exemption certificates for each taxing jurisdiction. Cloudamize will apply the tax exemption certificates to charges under your account occurring after the date Cloudamize receives the tax exemption certificates. If any deduction or withholding is required by law, you will notify Cloudamize and pay any additional amounts necessary to ensure that the net amount that Cloudamize receives, after any deduction and withholding, equals the amount Cloudamize would have received if no deduction or withholding had been required. Additionally, you will provide Cloudamize with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
7. Proprietary Rights
a. Ownership; Reservation of Rights. Subject to the limited rights expressly granted to you hereunder, Cloudamize reserves all rights, title and interest, including all Intellectual Property Rights, in and to the Cloudamize Platform, the Products, and any Deliverables. No rights are granted to you hereunder other than as expressly set forth herein. Excluding Feedback (defined below) and Service Analyses, you retain all right, title and interest in and to Your Data. You hereby grant to Cloudamize and its successors and assigns a non-exclusive, transferable, sublicensable, worldwide, royalty-free, right and license to use, copy, distribute, display, perform, transmit, store, maintain and prepare derivative works of Your Data solely as needed for Cloudamize (or its successors or assigns) to perform its duties and obligations under these Terms, any Order Form and/or any Statement of Work or as needed for Cloudamize to otherwise comply with all applicable laws.
b. Restrictions. You shall not (i) permit any third party to access the Purchased Products except as permitted herein or in an Order Form, (ii) copy, distribute, display, or create derivate works based on the Products, including the Purchased Products except as authorized herein, (iii) disassemble, decompile or otherwise reverse engineer the Products, including the Purchased Products, or (iv) access the Products, including the Purchased Products, in order to build a competitive product or service, or copy any features, functions or graphics of the Products, including the Purchased Products.
c. Feedback. It is expressly agreed that all rights, title and interest, including all Intellectual Property Rights, to all suggestions, enhancement requests, recommendations or other feedback provided by you and your Authorized Users relating to the Products (“Feedback”) is owned by Cloudamize. You hereby assign and convey to Cloudamize any and all rights and interests, including Intellectual Property Rights, in any such Feedback. To the extent that such assignment is held to be invalid or unenforceable, you hereby grant to Cloudamize a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate any Feedback into the Products.
d. Service Analyses. Cloudamize may (i) compile statistical and other information related to the performance, operation and use of the Products, including pricing plans, and (ii) use data from the Cloud Infrastructure Service and Cloudamize Platform in aggregated form for security and operations management, to create statistical analyses, and for research and development, marketing and promotional purposes (clauses (i) and (ii) are collectively referred to as “Service Analyses”). Notwithstanding anything herein to the contrary, Cloudamize may make Service Analyses publicly available; however, Cloudamize will use commercially reasonable efforts to ensure that Service Analyses do not incorporate your Confidential Information in a form that could serve to identify you or any individual. Cloudamize retains all Intellectual Property Rights in Service Analyses and you hereby assign all right, title and interest you may have in and to such Service Analyses to Cloudamize, including all Intellectual Property Rights therein.
e. Trademarks. To the extent you are not an Authorized Re-Seller or Partner of Cloudamize, you agree not to use, without Cloudamize’s express, written consent, any of Cloudamize’s Trademarks, except as allowed by applicable law. To the extent you are an Authorized Re-Seller or Partner of Cloudamize, you may only use Cloudamize’s Trademarks expressly as set forth in the Cloudamize, Inc. Partner Agreement entered into between you and Cloudamize.
f. Third Party Materials. The Purchased Products may contain or be distributed or otherwise made available with Third Party Materials. Third Party Materials includes, without limitation: (a) links, websites or other technology of third parties which are referred to or contained within a Purchased Product; and (b) software governed by an open source license. You, and not Cloudamize, are solely responsible and liable for your use of Third Party Technology. The Third Party Technology may be subject to applicable terms and conditions that are in addition to, or different from, these Terms. You agree to comply with such additional or different terms. Such terms (as applicable) will be included in or with such Third Party Technology and/or at the following: https://support.cloudamize.com/hc/en-us/articles/115001326408-Open-Source-Services-Licenses. Unless otherwise specified in these Terms or an applicable Order Form, the Third Party Technology is separately licensed to you by the applicable third party owner. YOU HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION AGAINST CLOUDAMIZE WITH RESPECT TO ANY DAMAGE OR LOSS THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY THIRD PARTY TECHNOLOGY.
8. Representations & Warranties
a. You represent that you have full power and authority to enter into these Terms and that it is binding upon you and enforceable in accordance with its terms.
b. Cloudamize represents that it has full power and authority to enter into these Terms and that it is binding upon Cloudamize and enforceable in accordance with its terms.
c. Cloudamize further represents and warrants that, at the time of delivery, all Purchased Products and any Deliverables will substantially conform to the then-current specifications as provided to you by Cloudamize. As your sole remedy and Cloudamize’s sole and exclusive liability for breach of this Section 8(c), Cloudamize will, at its option, either re-perform at no additional charge any Purchased Products that breach the foregoing warranty or refund the Fees paid by you for any Purchased Products that breach the foregoing warranty, provided that you notify Cloudamize of a breach of the foregoing warranty within 30 days after the applicable breach occurs.
d. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CLOUDAMIZE MAKES NO OTHER WARRANTIES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO ITS PERFORMANCE UNDER THESE TERMS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
c. You retain sole responsibility for your 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 such as third party cloud services providers (“Your Systems”), as well as the security and use of your and your Authorized Users’ access credentials, and all access to and use of the Products and Ancillary Programs directly or indirectly by or through Your Systems or via your or your Authorized Users’ access credentials, including, but not limited to, all results obtained therefrom and all conclusions, decisions and actions based on or in connection with such access or use. You understand that Your Data may be transferred to Cloudamize via the internet or via a third party cloud services-provider (such as, for example, Dropbox). Cloudamize provides no representation or warranty AND EXPRESSLY DISCLAIMS ALL LIABILITY resulting from the transmission of Your Data over the internet or the handling, processing, use, storage, maintenance, transmission, of Your Data by and/or the other actions or omissions of such third party cloud services-provider(s). You understand and agree that the handling, processing, use, storage, maintenance, and transmission of Your Data by such third party cloud services-provider is specifically governed by the terms and conditions of such third party cloud services-provider and not these Terms.
10. Limitation of Liability
YOU ACKNOWLEDGE THAT YOUR USE OF THE CLOUDAMIZE PLATFORM AND ASSOCIATED PRODUCTS ARE PROVIDED BY CLOUDAMIZE ON AN “AS-IS” BASIS AND AT YOUR OWN RISK. CLOUDAMIZE DISCLAIMS ALL LIABILITY TO YOU OR YOUR AUTHORIZED USERS, AFFILIATES AND CUSTOMERS THAT MAY RESULT FROM SUCH USE AND THE USE OF ANY THIRD PARTY MATERIALS, INCLUDING FROM ANY FAILURE OR MALFUNCTION OF CLOUDAMIZE’S PLATFORM, INCLUDING THE SUPPORTING INFRASTRUCTURE AND SERVICES PROVIDED BY THIRD PARTIES, AS WELL AS ANY MISUSE BY YOUR EMPLOYEES, CONTRACTORS OR OTHER RELATED THIRD PARTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 HEREOF, ANY STATEMENTS OF FACT, DESCRIPTIONS, PROJECTIONS, ESTIMATES OR OTHER STATEMENTS EXPRESSED IN THESE TERMS, ANY ORDER FORM OR STATEMENT OF WORK, OR OTHERWISE BY CLOUDAMIZE IN CONNECTION WITH THE PRODUCTS SHALL NOT BE DEEMED TO CONSTITUTE A WARRANTY OF THE PRODUCTS OR ANY PART THEREOF.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES ARISING HEREFROM OR RELATED HERETO IN ANY CAUSES OF ACTION OF ANY KIND, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. CLOUDAMIZE’s AGGREGATE LIABILITY TO YOU FOR EVERY REASON UNDER THESE TERMS SHALL BE LIMITED TO THE AMOUNT OF FEES AND COMPENSATION ACTUALLY PAID BY YOU TO CLOUDAMIZE PURSUANT HERETO.
You will defend, indemnify, and hold harmless Cloudamize from and against any and all claims, losses, liabilities, damages, judgments, settlements, costs, and expenses (including attorneys’ fees, expert witness fees, and court costs) based upon, resulting from or related to: (i) any improper, illegal, or unauthorized use of the Cloudamize Platform or any element thereof by you or your Authorized Users; or (ii) any breach of your representations, warranties or covenants under these Terms.
12. Confidentiality; Publicity
a. By virtue of these Terms, the parties may have access to information that is confidential to one another, including but not limited to all information clearly identified as confidential at the time of disclosure (“Confidential Information”); however, a party’s Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (iv) is independently developed by the other party. Each party agrees not to disclose the other’s Confidential Information to any third party except in connection with a legal proceeding arising from or in connection with these Terms or to a governmental entity as required by law, and to use commercially reasonable measures to protect against the unauthorized disclosure or distribution of the disclosing party’s Confidential Information to any other person or entity. The receiving party shall only disclose the disclosing party’s Confidential Information to its own employees who have a need to know such information and never to a third party (including any subcontractor or consultant), except that Cloudamize may disclose or distribute Confidential Information to its subcontractors and consultants in order for Cloudamize to perform its obligations under these Terms, provided such subcontractor or consultant enters into a confidentiality and non-disclosure agreement with Cloudamize with terms substantially similar to those set forth in this Section 12.
b. Notwithstanding the foregoing, Cloudamize reserves the right to identify you from time to time in its corporate communications, advertising and marketing materials, using the appropriate Trademarks and you hereby consent to Cloudamize’s use of your Trademarks in this manner.
13. Term & Termination
a. The Term for each Purchased Product shall be set forth in the Order Form, provided that if no Term is stated in the Order Form then the Term shall be one year, which shall automatically renew for additional, successive one-year terms, unless either party has terminated these Terms by giving notice of termination to the other party at least 30 days prior to the end of the then-current term. The pricing applicable during any such renewal terms shall be the same as that during the prior term unless Cloudamize has provided you with written notice of a price increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective for the duration of the applicable renewal term. Upon termination of these Terms by you or by Cloudamize, Cloudamize may retain any payments and you shall pay Cloudamize for any Fees owed up to the date of termination, together with all other amounts due hereunder. Any payments that have been received shall be credited against any such amounts due.
b. Cloudamize may suspend your rights to use the Cloudamize Platform (in whole or in part), and/or terminate these Terms 15 days following Cloudamize’s provision of notice to you, in accordance with the notice provisions set forth herein, if you are in default of any payment obligation with respect to any of the Purchased Products or if any payment mechanism you have provided to Cloudamize is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within such 15-day period.
c. Cloudamize may suspend or terminate your access to the Products upon written notice in order to: (i) prevent damage to or degradation of, Cloudamize Platform; (ii) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (iii) otherwise protect Cloudamize from potential legal liability. If suspended, Cloudamize will promptly restore use of the Products to you as soon as the event giving rise to the suspension has been resolved to Cloudamize’s satisfaction.
d. Cloudamize may suspend or disable your use of any Ancillary Program or any other component of Cloudamize Materials which is downloaded on your Cloud Infrastructure Service or otherwise (hereafter, an “Agent”) at any time after the Agent has completed its data collection assessment or related function (i.e., after the “Data Collection Period”), even if such suspension or disablement occurs prior to the expiration of your subscription Term for the Purchased Product. If you wish to effectuate a subsequent data collection assessment following Cloudamize’s suspension or disablement of the Agent, then provided that you are not then in breach of these Terms and that such assessment would take place during the Term of your subscription, Cloudamize would enable the Agent to perform such assessment as soon as reasonably practicable following your written request (thereafter, Cloudamize may suspend or disable the Agent pursuant to the terms above).
e. If you have purchased or paid for any Cloud Infrastructure Service through Cloudamize, the termination or suspension of a Product provided hereunder also may result in termination or suspension of your Cloud Infrastructure Service. You must make separate arrangement with the provider(s) of any Cloud Infrastructure Service to continue such service following termination or suspension of a Product provided hereunder.
f. The following Sections of these Terms shall survive any expiration or termination of the Products: 1, 6, 7, 9-12, and 14-18.
14. Export Compliance
The Products and other technology made available by Cloudamize and derivatives thereof may be subject to export and import laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit your Authorized Users to access or use any Product in a U.S.-embargoed country or in violation of any export or import law or regulation of any jurisdiction.
15. Dispute Resolution: Applicable Law
These Terms shall be governed by the laws of the State of Delaware, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. You agree that any claim or dispute you may have against Cloudamize must be resolved by a federal or state court in the State of Delaware and you hereby consent to the jurisdiction of such courts, The prevailing party in any dispute hereunder shall be entitled to recover from the other party its costs, expenses and reasonable attorneys’ fees (including any fees for expert witnesses, paralegals, in-house counsel, or other legal services providers).
Cloudamize may freely assign or delegate all rights and obligations under these Terms, fully or partially, with or without notice to you. Cloudamize may also substitute, by way of novation, any third party that assumes our rights and obligations under these Terms.
17. Force Majeure
If you or Cloudamize cannot perform your or its respective obligations under these Terms because of any act of God, accident, strike, court order, fire, riot, war, failure of third-party equipment or any other cause not within the affected party's reasonable control and that could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing party will, if possible and reasonable, (a) promptly notify the other party, (b) take reasonable steps to resume performance as soon as possible, and (c) not be considered in breach during the duration of the Force Majeure Event. If a Force Majeure Event continues for five days, Cloudamize may terminate your subscription to the Products and these Terms by providing electronic notice to you.
Notices made by Cloudamize for you or your Account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to Cloudamize in your registration for the Products or in any updated email address you provide to Cloudamize in accordance with standard Account information update procedures Cloudamize may provide from time to time. It is your responsibility to keep the email address current and you will be deemed to have received any email sent to any such email address, upon Cloudamize sending of the email, whether or not you actually receive the email. Notices made by you to Cloudamize may be sent to: email@example.com.
19. Entire Agreement
These Terms, along with the Terms of Service Privacy Addendum and any Order Form, constitute the entire understanding of the parties and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter hereof. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms. If one or more of the provisions herein shall be held invalid, illegal or unenforceable in any respect, the validity, legality and enforcement of the remaining provisions shall not be affected or impaired.
Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to these Terms.
TERMS OF SERVICE PRIVACY ADDENDUM
EFFECTIVE AS OF JANUARY 10TH, 2017
Cloudamize, Inc. (“Cloudamize”) is committed to protecting the privacy and security of individuals and entities and their respective information and data who register to use and otherwise purchase the right to access and use the Purchased Products (“Customers”, “you” or “your”). This Terms of Service Privacy Addendum (“Addendum”) describes Cloudamize’s collection and use of data and information, including Your Data and your Personally Identifiable Information (defined below), collected from or provided by you via Cloudamize’s website, including all associated webpages, at www.cloudamize.com (collectively, the “Web Site”) or in connection with your use of or access to the Purchased Products. Capitalized terms not otherwise defined herein shall have the meaning attributable to them in the Terms of Service. By agreeing to the Terms of Service or otherwise using or accessing the Products you hereby agree to be bound by the terms and conditions set forth in this Addendum as well.
1. What Information does Cloudamize Collect from its Customers and when does it do so?
When registering to use the Purchased Products (including in connection with the creation of an Account) or in connection with the submission of an Order Form, Cloudamize requires you to provide Cloudamize with personal contact information, such as name, company name, address, phone number, and email address, which information includes Personally Identifiable Information (“Required Contact Information”). When purchasing any Products, Cloudamize may require you to provide the Company with financial qualification and billing information, such as billing name and address, credit card number, and the number of employees within the organization that will be using the Purchased Products (“Billing Information”). Cloudamize may also ask you to provide additional information, such as company annual revenues, number of employees, or industry (“Optional Information”). Required Contact Information, Billing Information, and Optional Information about Customers are referred to collectively as “Data About Cloudamize Customers”.
Cloudamize also collects certain Service Analyses for the reasons set forth in the Terms of Service, and may collect your Keys or other credentials, if provided by you to Cloudamize.
Additionally, Cloudamize may collect your Personally Identifiable Information when you:
- Submit a service request or a technical support question to an employee or agent of Cloudamize; or
- Otherwise expressly provide Cloudamize with your Personally Identifiable Information.
2. How does Cloudamize Use the Information that it Collects?
Cloudamize uses Data About Cloudamize Customers to perform its obligations and duties and otherwise provide you with the Purchased Products. Cloudamize may also use Data About Cloudamize Customers for marketing purposes, such as to provide you with information concerning other Products that you may be interested in.
Cloudamize uses credit card information solely to check the financial qualifications and collect payment from prospective Customers and Customers.
In addition, Cloudamize may use your Personally Identifiable Information for the following purposes:
- To respond to your service requests or technical support questions;
- To verify that you are an Account holder or to provide you details about your Account and who are your Authorized Users;
- To provide you with personalized information about Cloudamize.
In addition to the foregoing, Cloudamize may need to disclose Personally Identifiable Information when required by law or if Cloudamize has a good-faith belief that the action is necessary to comply with a pending judicial proceeding, a court order or legal process served on Cloudamize or to protect its rights or the rights of others, to fight fraud, identity theft, to ensure the integrity and operation of Cloudamize’s business and systems, or to protect the rights, property or safety of Cloudamize, its partners, employees, representatives or others.
Cloudamize uses your Keys only to allow it access to your applications and/or technology infrastructure as needed for Cloudamize to perform its obligations and duties in providing the Purchased Products. Cloudamize does not share your Keys with other third parties without your written consent.
Your Data may be electronically submitted via the Purchased Products for hosting and processing purposes. Cloudamize will not review, share, distribute, or reference any such data except as provided in the Cloudamize Terms of Service, or as may be required by law.
In accordance with the Cloudamize Terms of Service, Cloudamize may compile Service Analyses. Cloudamize may, in its sole discretion, make Service Analyses publicly available and/or otherwise distribute, disclose, share or sell same. However, Cloudamize will use commercially reasonable efforts to ensure Service Analyses do not incorporate Your Data in a form that could serve to identify you or any individual.
In addition, Cloudamize may access, process, maintain, transmit, prepare derivative works of, store and/or use Your Data for the purpose of providing the Purchased Product, preventing or addressing service or technical problems at a Customer’s request in connection with customer support matters, or as may be required by law.
3. What Web Site Navigational Information does Cloudamize Collect and how is this information used?
- Please note that if you disable your Web browser’s ability to accept cookies, you will be able to navigate the Company’s Web sites, but you will not be able to successfully use the Purchased Products;
- Because required cookies are essential to operate the Company’s Web sites and the Services, there is no option to opt out of these cookies;
- Functionality cookies allow Cloudamize’s Web Site to remember information you have entered or choices you make (such as your username, language, or your region) and provide enhanced, more personal features. These cookies also enable you to optimize your use of the Purchased Products after logging in. These cookies can also be used to remember changes you have made to text size, fonts and other parts of web pages that you can customize. These cookies also help Cloudamize understand how you use your Purchased Products; and
- Cloudamize collects IP addresses from Customers when they log into the Purchased Products as part of its security features.
4. How does Cloudamize Share the Information that it Collects?
From time to time, Cloudamize may partner with other companies to jointly offer products or services. If you purchase or specifically express interest in a jointly-offered product or service from Cloudamize, Cloudamize may share Data About Cloudamize Customers collected in connection with your purchase or expression of interest with our joint promotion partner(s). Cloudamize does not control our business partners’ use of the Data About Cloudamize Customers we collect, and their use of the information will be in accordance with their own privacy policies. If you do not wish for your information to be shared in this manner, you may opt not to purchase or specifically express interest in a jointly offered product or service.
Cloudamize uses a third-party service provider to manage credit card processing. This service provider is not permitted to store, retain, or use Billing Information except for the sole purpose of credit card processing on Cloudamize’s behalf.
Cloudamize reserves the right to use or disclose information provided if required by law or if Cloudamize reasonably believes that use or disclosure is necessary to protect Cloudamize’s rights and/or to comply with a judicial proceeding, court order, or legal process.
As set forth above, Cloudamize may share and disclose Service Analyses with third parties, in its sole discretion.
5. Is Information handled or transferred internationally?
6. Can a Customer change his or her Communications Preferences?
Cloudamize offers Customers who provide contact information a means to choose how the Cloudamize uses the information provided. You may manage your receipt of marketing and non-transactional communications by clicking on the “unsubscribe” link located on the bottom of Cloudamize’s marketing emails. Additionally, you may send a request specifying your communications preferences to firstname.lastname@example.org.
Customers may update or change their registration information or Account information by editing their user or company record. To update a user profile, please login to https://www.cloudamize.com/login/ with your Cloudamize username and password and click “Setup.” To update Billing Information, have your email or registration information deleted, discontinue your account or have information you maintained in connection with the Purchased Products returned to you, please email email@example.com. Requests to access, change, or delete your information will be handled within 30 days.
7. How does Cloudamize Protect Data and Information Provided by Customers, including Data About Cloudamize Customers?
Cloudamize uses commercially reasonable measures to protect Your Data from unauthorized disclosure or from being obtained in an unauthorized manner. Cloudamize uses a combination of firewall barriers, data encryption techniques and authentication procedures, among others, to maintain the security of your online session and to protect your Personal Information, Account Information and our system’s security measures to protect Your Data from unauthorized access, maintain data accuracy, and help ensure the appropriate use of Your Data. These technologies help ensure that Your Data is safe, secure, and only available to the Customer to whom the information belongs and those to whom the Customer has granted access. Cloudamize hosts its Web Site in a secure server environment that uses firewalls, access control and other advanced technology to prevent interference or access from outside intruders. Customers are responsible for maintaining the security and confidentiality of their Cloudamize usernames and passwords and other access credentials, as well as the access credentials of any Authorized Users. Unfortunately, no data transmission over the Internet or stored in servers can be guaranteed to be absolutely secure. As a result, while Cloudamize strives to protect Your Data, Cloudamize cannot ensure or warrant the security of any information that you transmit to Cloudamize, and you do so at your own risk. Cloudamize DISCLAIMS ANY RESPONSIBILITY OR LIABILITY for a breach of privacy as a result of your negligence.
8. Changes to this Addendum
Cloudamize reserves the right to change this Addendum. Cloudamize will provide notification of the material changes to this Addendum through the Web Site at least thirty (30) business days prior to the change taking effect.
9. Contacting Us
Questions regarding this Addendum or the information practices of Cloudamize should be directed to Cloudamize Privacy by sending an email to Cloudamize at: firstname.lastname@example.org
YOUR CALIFORNIA PRIVACY RIGHTS
California Civil Code Section 1798.83 permits Visitors who are California residents to request certain information regarding the disclosure of personal information to third parties for Cloudamize’s direct marketing purposes. To make such a request, please send an e-mail to: email@example.com or write Cloudamize at:
1735 Market Street
Philadelphia, PA 19103
HIPAA AND HI-TECH
Cloudamize does not knowingly collect protected health information or medical information of a sensitive nature and its Web Site is not meant for transferring such information. In the event you share any protected health information or medical information of any person for any reason whatsoever, YOU EXPRESSLY AGREE TO BE SOLELY LIABLE AND RESPONSIBLE FOR ALL COSTS (INCLUDING ACTUAL ATTORNEY’S FEES AND COSTS), DAMAGES, LOSSES, FEES, EXPENSES, CLAIMS, CAUSES OF ACTION, JUDGMENTS, AND/OR SETTLEMENTS INCURRED BY CLOUDAMIZE AS A RESULT OF YOUR DISCLOSURE OF SUCH INFORMATION. To the extent Cloudamize determines that it has collected any protected health information or medical information of a sensitive nature, it will not maintain this information and will delete same.
CONFLICT OF TERMS
To the extent the terms or conditions of this Addendum conflict with the Terms of Service, the Terms of Service shall control.