This CloudMGR Services Agreement (Agreement) sets out the terms and conditions on which you or the organisation, entity or any other persons you represent (you/your) may access or use the Services. You must agree to the terms and conditions set out below prior to accessing or using the Services. This Agreement is a legally binding document between Cloud Manager, Inc. (us/we/our) and you.
1. THE SERVICES
1.1 Access and Use
You agree to access and use the Services in accordance with:
1.3 Your obligations
(a) must use reasonable endeavours to keep your Account password secure and prevent unauthorised access and use of the Services;
(b) must provide notice to us immediately if there is suspected access or use by an unauthorised party, or if an Account is lost, stolen or otherwise compromised;
(c) are solely responsible for all information, data and content stored on, published or accessed through the Services;
(d) are responsible for creating back-ups of its content and data used in relation to the Services; and
(e) must ensure that each person you authorise to use the Account complies with the terms and conditions set out under this Agreement.
You must not:
(a) share or transfer your Account without our written consent;
(b) act in contravention of the terms of this Agreement or with the laws of any relevant jurisdiction;
(c) lease, rent, resell or sell the Services;
(d) use the Services to disseminate, publish, store or transmit any unlawful material;
(e) interfere with or disrupt the Services or any websites, servers or networks associated with the Services in any manner whatsoever, including, without limitation, using a virus, overloading or flooding the Services, conducting a denial of service attack, or otherwise manufacturing an increased burden on our network or servers;
(f) access, probe or use any non-publicly available areas of the Services, or exploit any vulnerabilities in the system or network, or otherwise breach of circumvent any security or authentication measures;
(g) reverse engineer the Services or any component of the Services; or
(h) access the Services with the intention of building a competitive product or service, or to copy any features, functions or the look and feel of the Services.
1.5 Third Party Products
The Services are intended to interface, or operate in conjunction, with Third Party Products as approved by us from time to time (Approved Products) and you acknowledge and agree that:
2. FEES AND PAYMENT
2.1 Payment of Service Fee
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS US, OUR AFFILIATES AND EACH OF OUR EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES FROM AND AGAINST ANY CLAIM OR LIABILITY (INCLUDING LEGAL FEES ON A FULL INDEMNITY BASIS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO:
(a) THE USE OF THE SERVICES BY YOU OR ANY OTHER THIRD PARTY HAVING ACCESS TO YOUR ACCOUNT;
(b) BREACH OF THIS AGREEMENT OR VIOLATION OF AN APPLICABLE LAW BY YOU;
(c) ANY CLAIM IN RELATION TO THE CUSTOMER DATA, INCLUDING WITHOUT LIMITATION ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY RIGHTS (INCLUDING INTELLECTUAL PROPERTY RIGHTS); OR
(d) A DISPUTE BETWEEN YOU AND ANY OTHER THIRD PARTY
6. LIMITATION OF LIABILITY
(a) TO THE EXTENT PERMITTED BY LAW, WE WILL NOT BE RESPONSIBLE FOR, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE UNDER ANY CIRCUMSTANCES (INCLUDING, WITHOUT LIMITATION, NEGLIGENT ACTS OR OMISSIONS) TO YOU OR YOUR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS OR REPRESENTATIVES IN CONNECTION WITH OR ARISING OUT OF:
(i) THE USE OR ACCESS OF THE SERVICES;
(ii) THE INABILITY TO ACCESS THE SERVICES, WHETHER AS A RESULT OF:
(A) TERMINATION OR SUSPENSION OF THIS AGREEMENT;
(B) DISCONTINUATION OF ANY OR ALL OF THE SERVICES;
(C) SUBJECT TO THE SLA, UNSCHEDULED DOWNTIME ON ALL OR A PORTION OF THE SERVICES FOR ANY REASON;
(iii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES;
(iv) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR THE YOUR USE OF OR ACCESS TO THE SERVICES; OR
(v) ANY UNAUTHORISED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF THE CUSTOMER DATA OR ANY OTHER DATA.
(b) IN ANY CASE, OUR AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO US UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 6 MONTHS PRECEDING THE CLAIM.
THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE EXTENT ALLOWED BY LAW WE, OUR AFFILIATES AND OUR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS AND GUARANTEES, INCLUDING WITHOUT LIMITATION:
(a) THE COMPLETENESS, QUALITY, ACCURACY, TRUTHFULNESS, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICES OR THE CLOUD MANAGER DATA;
(b) THAT THE SERVICES WILL BE FREE FROM ERRORS, BUGS, VIRUSES, TROJAN HORSES AND OTHER SECURITY FLAWS AND DEFECTS, OR THAT WE WILL FIX SUCH FLAWS AND DEFECTS UPON BECOMING AWARE OF THEM;
(c) THAT WE WILL NOT DISCONTINUE ANY PART OF THE SERVICES;
(d) SUBJECT TO THE SLA, THAT THE SERVICES WILL ALWAYS BE AVAILABLE AND THAT THERE WILL BE NO INTERRUPTIONS OR DISRUPTIONS TO SERVICES;
(e) THAT ANY CUSTOMER DATA SUBMITTED BY YOU WILL NOT BE LOST OR DELETED; OR
(f) THAT THE SERVICES WILL BE OF MERCHANTABLE QUALITY OR FIT FOR PURPOSE.
8.1 Notices to you
We may provide notice to you by:
(a) sending it to the e-mail address you provided in relation to your Account; or
(b) publishing the notice on our website (www.cloudmgr.com).
8.2 Notices to us
All notices to us must be provided by:
(a) pre-paid post to 28 2nd Street, San Francisco, California 94105, USA; or
(b) e-mail to email@example.com
All notices must be in written English, legible and delivered in accordance with this clause 8.
9.1 Entire agreement
This document constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this document and have no further effect.
9.2 No merger
The provisions of this document will not merge on completion of any transaction contemplated in this document and, to the extent any provision has not been fulfilled, will remain in force.
(a) You must not issue any press release or other public announcements with respect to this Agreement or the Services without our written consent.
(b) We may identify you from time to time in any advertising or marketing materials or communications as a user of the Services.
9.4 Force Majeure
We are not liable for any delay or failure to perform under this Agreement where the delay or failure results from any Force Majeure.
We may assign our rights under this Agreement by notice to you. You will not assign this Agreement without our written consent.
Part or all of any provision of this document that is illegal or unenforceable will be severed from this document and will not affect the continued operation of the remaining provisions of this document.
Waiver of any power or right under this document:
(a) must be in writing signed by the party entitled to the benefit of that power or right; and
(b) is effective only to the extent set out in that written waiver.
9.8 Further assurances
Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this document and the transactions contemplated by it (including, but not limited to, the execution of documents).
9.9 Governing law and jurisdiction
This document will be governed by and construed in accordance with the laws in force in [the State of Delaware, USA] and each party submits to the non-exclusive jurisdiction of the courts of that State.
“Account” means a CloudMGR account in connection with this Agreement that has been validly created by you to access the Services.
“Approved Products” has the meaning given under clause 1.5.
“Business Day” means a day between Monday to Friday and excluding Saturdays, Sundays and public holidays in Brisbane, Australia.
“Claim” means any claim, notice, demand, action, proceeding, litigation, investigation or judgment, whether based in contract, tort, structure, equity or otherwise.
“CloudMGR” the CloudMGR platform available at www.cloudmgr.com.
“Cloud Manager Data” software (including machine images), data, text, audio, video, images or other content which we may make available to you in connection with the Services or on CloudMGR to allow access to and use of the Services.
“Cloud Infrastructure Services” means compute capacity, data storage, data transmission, network and related infrastructure services provided through the internet by third party providers.
“Confidential Information” includes all:
(a) Cloud Manager Data;
(b) non-public information relating to us or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; and
(c) any third-party information that we are obligated to keep confidential.
“Customer Data” means software (including machine images), data, text, audio, video, images or other content which you or any other person in connection with your Account:
(a) run on the Services;
(b) cause to interface with the Services; or
(c) upload to the Services under your Account or otherwise transfer, process, use or store in connection with your Account.
“Force Majeure” means any event or circumstance outside our reasonable control, including acts of God, labour disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
“Intellectual Property” means all intellectual and industrial property rights (whether or not registered or registrable) including, but not limited to:
(a) all technical information, know how, trade and service marks, business names, domain names, copyright, designs, patents, logos, drawings, inventions, discoveries, research developments, trade secrets, rights in circuit layouts, rights in data bases, supplier and customer listings and engineering, financial and other commercial data and information;
(b) any application or right to apply for registration of any of the rights in paragraph (a) and all renewals and extensions of those rights; and
(c) the right to have Confidential Information kept confidential.
“Liability” means any liability, loss, damage, outgoing, cost or expense, whether direct, indirect, incidental or consequential, of whatever description.
“Services” means CloudMGR and any other services made available by us to you from time to time.
“Service Fee” means the fees payable by you to us in respect of the Services.
“SLA” means the service level agreement offered by us in relation to the Services published on our website (www.cloudmgr.com) as updated from time to time.
“Third Party Products” means Cloud Infrastructure Services and/or any other third party applications, data, services, hardware or software operated by third parties and subject to third party terms and conditions which may be required to gain the benefits of the Services or which may be accessed, used or made available through CloudMGR.