DEFINITION OF TERMS:
Agreement – the entire agreement including the Quote, Services Agreement and these Terms and all agreements or documents incorporated therein by reference.
Confidential Information – information relating to a party’s technology or business that is disclosed hereunder to the other party; or (b) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.”
Cloudsnap, or “us”, “we” and “our” – all refer to Cloudsnap, Inc., the entity that is responsible for providing the Services.
Customer or “you” – the customer who is entering into the Agreement for Services.
Customer Data – all of Customer’s documents, messages, graphics, logos, images, files, data and other information transmitted through the Platform.
Disclosing Party – the party disclosing Confidential Information under Section 5 of this Agreement.
Fees – the amounts to be paid as set forth in the Quote.
Platform – Cloudsnap’s Integration Platform as a Service (iPaaS) solution and related applications.
Professional Services – services, such as implementation services, that are provided by Cloudsnap in accordance with the Services Agreement and Quote.
Quote – A document specifically describing the Services that Cloudsnap has agreed to provide to you and the fees associated with those Services.
Receiving Party – the party receiving Confidential Information pursuant to Section 5 of this Agreement.
Services – the Subscription Services and/or the Professional Services.
Services Agreement – a document that provides for certain provisions related to the Services including customer obligations, renewal terms and support terms and is executed by you and Cloudsnap.
Site – the website located at www.cloudsnap.com, together with any websites on related domains or subdomains.
Subscription Services – the use of (i) any websites or web applications provided, published, developed or made available by Cloudsnap, including the Site; (ii) any mobile or online applications provided, published, licensed, developed or made available by Cloudsnap, including the Platform; and (iii) any feature, content, software, hardware, services, software-as-a-service, or other products available on or through the Site or the Platform or otherwise provided by Cloudsnap.
Terms – these terms of Service.
Trial – any trial, evaluation, or other unpaid term of use of the Subscription Service.
1. THE SERVICES
1.1. License. Company grants you a non-transferable, non-exclusive, revocable, nonsublicenseable, limited license to use and access the Subscription Services solely for your own internal business purposes (the “License”), which License is expressly conditioned on compliance with these Terms and is specifically subject to any restrictions set forth herein.
Unless explicitly stated herein, nothing in the Terms may be construed as conferring any license to any intellectual property rights, whether by estoppel, implication or otherwise.
1.2. Restrictive Use. The License granted to you in these Terms are subject to the following restrictions: you shall not (i) license, sell, rent, publish, provide, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed through the Site or Platform or otherwise through the use of the Services; (ii) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (iii) access the Services in order to build a similar or competitive website, product, or service; (iv) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, any part of the Services; (v) use the Platform for any fraudulent or unlawful purpose, including violating any applicable local, state, national or foreign laws, treaties or regulations or any third party’s proprietary or contractual rights; (vi) interfere with, disrupt, or create an undue burden on the Platform, including its servers or networks, or attempt to do so; or (vii) remove copyrights, proprietary notices or product identification in any way. You agree to use the Platform for your own business purposes, and you agree that all users will comply with the terms and conditions of this Agreement. You may not assist any third party in carrying out these prohibited activities. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
1.3. Service Level Agreement, Maintenance.
(a) Subscription Services – Platform Accessibility.
(i) We are committed to providing you with access to the Platform. Therefore, in regard to the Subscription Services, Cloudsnap guarantees that you will have Platform Accessibility at least 99.99% of the time. “Platform Accessibility” means that the Customer can access the iPaaS platform at any time, other than non-accessibility due to (i) regularly scheduled maintenance, maintenance specifically requested by you or unscheduled emergency maintenance as set forth below; (ii) Customer’s inability to connect to the Internet; (iii) the actions or failures to act of Customer, or Customer’s third party agents, contractors, suppliers or vendors; (iv) any delay or failure of performance caused in whole or in part by your delay in or failure to perform obligations under this Agreement; (v) Cloudsnap’s blocking of data communications or other Services in accordance with policies of which you have been previously informed; or (vi) any factor(s) outside of Cloudsnap’s reasonable control.
(ii) Maintenance. Cloudsnap requires routine, periodic access to the infrastructure supporting the Services, in order to perform maintenance and upgrades. Our scheduled maintenance window, to the extent reasonably possible, shall be performed during low-traffic days and/or hours and after we have provided prior notice to you, and you acknowledge that the Services may be unavailable due to maintenance at any time during those maintenance windows. Additionally, we may be required to perform unscheduled maintenance at other times, if necessary, to address security or performance issues directly impacting the Services. We will endeavor to provide you with all possible notice of any unscheduled maintenance outage. However, you acknowledge that it may be necessary for us to perform unscheduled maintenance without first delivering notice to you, if the circumstances warrant.
(iii) Remedy. If we fail to meet the guarantee for Platform Accessibility stated in Subsection 4.1 and the failure directly and adversely affects your Services with us, you are entitled to a credit of 5% of your monthly recurring fee for the affected Services per consecutive hour of unavailability that occurs in any one month (each such credit, a “Downtime Credit”).
(iv) Limitations. No more than one Downtime Credit may accrue in any 24-hour period and no more than 5 Downtime Credits may be allowed per month.
(v) Credit Process. In order to receive a Downtime Credit, you must notify us in writing within 24 hours of discovering that your Services are unavailable. Failure to provide such notice will forfeit the right to receive Downtime Credit. The length of the downtime will be measured beginning after you notify us of the unavailability of Services and ending once the platform becomes accessible, as determined by Cloudsnap. You may not roll-over or accrue Downtime Credits from month to month and we will only apply a credit to the Services fees due in the pay period following the month in which the downtime occurred. Downtime Credits may not be redeemed for cash. The Downtime Credits are your sole and exclusive remedy for issues related to Platform Accessibility.
1.4. Professional Services. We may agree to perform work for you pursuant to a Services Agreement and Quote, which specifies the scope and schedule of Professional Services to be performed, and the applicable fees. Unless otherwise expressly stated in the applicable Services Agreement and Quote, Professional Services shall be provided as specified on the Services Agreement. Any changes to the scope of work under a Services Agreement shall be made by written change order or amendment to the Services Agreement signed by an authorized representative of each party prior to implementation of the changes. You and Cloudsnap both agree to cooperate reasonably and in good faith with the other in the performance of the Professional Services and each acknowledges that delays may otherwise result. You agree to provide, or provide access to, the following: complete and accurate information and data from its employees and agents, coordination of onsite, online and telephonic meetings, Credentials with sufficient permissions for Cloudsnap personnel to install and/or configure the Subscription Service where necessary for all applications being integrated, and other resources as reasonably necessary for satisfactory and timely performance of the Professional Services.
1.5. Professional Services Warranty. We warrant that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. For any breach of this warranty, Customer’s exclusive remedy, and our entire liability, shall be the re-performance of the Professional Services. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICE AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. CUSTOMER AGREES THAT ALL RISK PERTAINING TO THE USE OF THE SERVICES IS ASSUMED BY CUSTOMER. CLOUDSNAP AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLOUDSNAP DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SUBSCRIPTION SERVICE WILL BE SECURE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CLOUDSNAP OR SUPPLIER OR THEIR EMPLOYEES OR AGENTS WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. CLOUDSNAP AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES DURING THE TERM OF ANY TRIAL.
1.6. Ownership; Reservation of Rights. You acknowledge and agree that all the Intellectual Property Rights (as defined herein) in the Services and its content are and shall remain owned by Company or Company’s suppliers, contractors or partners. Cloudsnap has the right to assign, transfer or sell any such rights or content to a third party, who in turn may have the right to assign, transfer or sell any such rights or content. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such Intellectual Property Rights, except for the limited access rights expressly granted you in the License. Company and its suppliers, contractors and partners reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
1.7. Intellectual Property Rights. For the purposes of these Terms, “Intellectual Property Rights” means all intellectual property rights worldwide arising under statutory or common law, and whether or not perfected, including, without limitation, all (i) patents, patent applications and patent rights; (ii) rights associated with works of authorship including copyrights, copyright applications, and copyright registrations; (iii) rights relating to the protection of trade secrets and confidential information; (iv) any other proprietary rights relating to intangible property (other than trademark, trade dress, or service mark rights); (v) divisions, continuations, renewals, reissues and extensions of the foregoing (as and to the extent applicable) now existing, hereafter filed, issued or acquired; and (vi) all goodwill associated with any of the foregoing.
1.8. Customer Data. As between the parties, you shall retain all right, title and interest in and to your Customer Data provided, however, that you hereby grant to us a worldwide, royaltyfree, fully sublicenseable, non-exclusive license to use the Customer Data solely for the purposes of implementing, maintaining and improving the Platform and fulfilling our obligations hereunder. Notwithstanding the foregoing, non-identifiable aggregate data and usage statistics compiled by Cloudsnap in connection with your use of the Platform is not to be considered Customer Data, but such data and statistics may be used by each party in their discretion (but which we may not disclose to any third party in a manner that identifies you in connection therewith), and which we shall make available to you on an ongoing basis during the term of this Agreement. You acknowledge that you are solely responsible for taking steps to maintain appropriate security and protection of sensitive Customer Data that we have access to. Our security obligations with respect to Customer Data are limited to those obligations described in Section 6 below. We make no other representation regarding the security of Customer Data.
2. PAYMENT TERMS.
2.1. Paid Services. Subject to the terms and conditions of this Agreement, Customer will pay Cloudsnap the Fees for the Services as set forth in the Quote, including but not limited to the amounts and terms for payment of Professional and Subscription Services. The License to use and access the Services is expressly conditioned on full payment of the Fees. Fees may be paid by debit card, credit card, or other form that Company communicates in writing as being acceptable. If you link a debit or credit card to your account, you hereby authorize us to collect all Fees by debit from your linked debit card or charge to your linked credit card without further authorization, including any charges or fees incurred as a result of such debit or charge. Payment terms are set forth in the Quote.
2.2. Free Trial. Access to certain Services may be permitted for a free-trial period, as indicated when accessing such Services (the “Free Trial Period”), without payment of Fees. Upon the expiration of the Free Trial Period, your License to use such Paid Services will terminate until you have paid the required Fees.
2.3. Non-Refundable. All earned Fees (including professional services such as installation and training) are non-refundable.
2.4. Taxes. All Fees are exclusive of any and all taxes, levies or duties imposed on you for use of the Services by taxing authorities and you shall be responsible for all such taxes and charges.
2.5. Payments Upon Termination. Upon expiration or termination of this Agreement for any reason, Customer shall pay all earned and unpaid Fees and other amounts due Cloudsnap hereunder, which shall be due and payable within fourteen (14) days following the date of expiration or termination of this Agreement.
3.1. Your Indemnification Obligations. You agree to defend, indemnify and hold harmless Cloudsnap, its affiliates and each of its and its affiliates’ officers, directors, agents and employees from all liabilities, claims, and expenses (including reasonable attorneys’ fees) paid or payable to an unaffiliated third party, that arise from or relate to any third party claim brought against us (i) alleging that any Customer Data (as defined in Section 1.8) infringes or misappropriates such third party’s intellectual property rights or proprietary rights, or (ii) arising from your use of the Platform in violation of this Agreement, or applicable law, provided that we provide you with notice of the claim, give you sole control of the defense, and provide you with reasonable assistance in the defense and settlement of the claim. All such assistance shall be at your sole expense you may not settle a claim against us unless you release us and our affiliates from any liability.
3.2. Company Indemnification Obligations. We agree to defend, indemnify and hold you, your affiliates and each of your and your affiliates’ officers, directors, agents and employees from all liabilities, claims, and expenses harmless from liabilities, claims, and expenses (including reasonable attorneys’ fees) paid or payable to an unaffiliated third party, that arise from or relate to any third party claim brought against you by an unaffiliated third party to the extent that it is based upon a third party claim that the Platform infringes or misappropriates the intellectual property rights of such third party provided that you provide us with notice of the claim, give us sole control of the defense, and provide us with reasonable assistance in the defense and settlement of the claim. All such assistance shall be at your sole expense you may not settle a claim against us unless you release us and our affiliates from any liability. If our right to provide the Platform is enjoined or in our reasonable opinion is likely to be enjoined, we can continue providing the Platform, replace or modify the Platform in order for it to no longer infringe or, if such remedies are not reasonably available, terminate this Agreement without liability to you other than payment of the pro rata portion of fees for the remaining term of this Agreement subsequent to Cloudsnap’s notice of such claim. If we replace or modify the Platform and you fail to promptly implement the replacement or modification, we will be relieved of all liability pursuant to this clause. Additionally, we have no liability under this Section 3.2 to the extent that any third-party claim is based on (i) use of the Platform in violation of this Agreement or instructions on Platform usage we have given you during the Term; (ii) a modification of the Platform after delivery that we didn’t perform; (iii) any combination of the Platform with other products, processes or materials we didn’t provide; or (iv) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.
4. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR OBLIGATIONS UNDER SECTION 3 – INDEMNIFICATION OR SECTION 5 – CONFIDENTIALITY, (I) IN NO EVENT SHALL EITHER PARTY (OR THEIR SUPPLIERS, CONTRACTORS OR PARTNERS) BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) IN NO EVENT WILL EITHER PARTY (OR THEIR SUPPLIERS, CONTRACTORS OR PARTNERS) BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID AND PAYABLE FOR SUBSCRIPTION SERVICES TO CLOUDSNAP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. FOR THE AVOIDANCE OF DOUBT, EITHER PARTY AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO THE OTHER PARTY DURING THE TERM OF ANY TRIAL. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO EITHER PARTY.
During the Term of this Agreement, and for a period of two (2) years following termination, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. This restriction does not apply to information that: (a) can be shown to have been independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information; (b) has become publicly known through no breach of this Section 5 by the Receiving Party; (c) has been rightfully received by the Receiving Party without obligation of confidentiality from a third party authorized to make such disclosure; (d) has been approved for release in writing by the Disclosing Party; (e) was known by the Receiving Party without obligation of confidentiality prior to receipt from the Disclosing Party; or (f) is required to be disclosed by a competent legal or governmental authority, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
6. SECURITY AND PRIVACY.
7. TERM AND TERMINATION.
7.1. Initial Term and Renewals. The initial Term of this Agreement and subsequent renewal Terms are set forth in the Quote and Subscription Agreement. Subject to this Section, these Terms will remain in full force and effect while you use any Services. Either Party may terminate this Agreement if the other Party is in material breach of this Agreement and has not cured such breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching Party has commenced cure during the thirty (30) day period and is pursuing such cure diligently and in good faith.
7.2. Term and Termination of Trials. Notwithstanding the foregoing, the term of this Agreement with respect to any Trial shall be for the duration specified by Cloudsnap at the commencement of the Trial (and if no such duration is specified, it shall be deemed to be thirty (30) days). This Agreement may be terminated by Cloudsnap at any time during a Trial, at our sole discretion, upon notice to you.
7.3. Obligations on Termination. Upon termination of this Agreement, you shall, and shall ensure that your users shall, immediately, (i) cease all use of the Subscription Service, (ii) deliver to Cloudsnap or destroy all copies of any Subscription Service related materials, and (iii) certify in writing to Cloudsnap that such delivery or destruction has been accomplished. Upon termination of this Agreement by either Party, Cloudsnap reserves the right to immediately terminate access to the Subscription Service and Customer acknowledges that it may be denied access to the Subscription Service.
7.4. Survival. Termination of this Agreement shall not relieve either Party of its respective obligations to the other hereunder, including all payment obligations, which arose prior to the effective date of termination. Notwithstanding anything herein to the contrary, Sections 1.5, 1.6, 1.7, 1.8, 2, 3, 4, 5 and 7 shall survive termination of this Agreement.
8.1. Governing Law. This Agreement shall be governed in all respects by the substantive laws of the State of Texas, without reference to any conflicts of law principles that would require the application of the laws of any other jurisdiction. The Parties agree that the U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
8.2. Entire Agreement; Modifications. This Agreement, together with each Quote, Services Agreement and linked documents, constitutes the complete, final and exclusive statement of the terms of the Agreement between you and Cloudsnap pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties. This Agreement may not be modified except pursuant to a written amendment, executed by an authorized representative of each party.
8.3. Severability. If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of it being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable.
The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
8.4. Waiver and Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
8.5. Notice. Notices required to be delivered under these Terms may be delivered via email, a posting through the Services (such as on the Site or in the Platform), or a notice posted or delivered to your account or the most recent contact information listed within your account. Any consent required to be collected under these Terms may be collected through the Services or a separate written agreement. You are responsible for providing us with your most current email address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.
8.6. Export. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
8.7. Electronic Communications. The communications between you and Company use electronic means, whether you use the Services or send us emails, or whether Company posts notices via the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
8.8. Assignment. Neither you nor Cloudsnap may assign this Agreement without the prior written consent of the other party; provided, however, that either party may, upon written notice, assign this Agreement to (i) an affiliate or (ii) any entity which, whether by merger, purchase or otherwise acquires all or substantially all of the assets or business of such party. Any assignment in violation of the foregoing is null and void. The terms and conditions of this Agreement shall be binding on any assignee.
8.9. Feedback. If you provide us with any feedback or suggestions regarding the Services, you agree to assign all rights in that feedback and agree that we can use it in any manner we deem appropriate, including in future modifications of the Services, and understand that we will treat feedback as non-confidential and non-proprietary.