PLEASE READ THESE TERMS CAREFULLY. IF YOU ELECTRONICALLY ACCEPT THESE TERMS, OR OTHERWISE USE THE CLOUDYN SERVICES OR SOFTWARE (COLLECTIVELY, THE “SERVICE”), YOU AGREE TO BE BOUND BY ALL OF THESE TERMS (THE “AGREEMENT”) AS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND CLOUDYN SOFTWARE LTD (“CLOUDYN”). IF YOU DO NOT ACCEPT THE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICE. IF YOU ARE ENTERING THIS AGREEMENT AS AN EMPLOYEE OR REPRESENTATIVE OF YOUR EMPLOYER, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND SAID EMPLOYER OR OTHER LEGAL ENTITY TO THESE TERMS AND THE TERM “YOU” INCLUDES YOUR EMPLOYER AND ANY OTHER PARTY ON WHOSE BEHALF YOU ACT. IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THESE TERMS OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR OTHER LEGAL ENTITY, PLEASE DO NOT ACCEPT THESE TERMS OR ACCESS OR USE THE SERVICE. YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW. IF YOU PROVIDE OR MAY PROVIDE A SERVICE SIMILAR TO THE SERVICE PROVIDED BY CLOUDYN, YOU ARE STRICTLY PROHIBITED FROM ENTERING INTO THIS AGREEMENT.
- Provision of Service. This Agreement described the terms and conditions upon which Cloudyn will provide the Service, a SaaS IT management suite of tools, to you. Subject to your payment of the applicable fee and your compliance with this Agreement, Cloudyn will provide the Service to you as described herein. In order to use the Service, you will be issued an individual user name and password. You must safeguard your user name and password and keep them confidential, and you will be responsible for any use of the Service by means of your user name and password.
- Software License. Subject to the terms of this Agreement, Cloudyn grants you a non-exclusive, non-transferable license to download, install on your network, and execute a single object code copy of Cloudyn’s SaaS Service, and any upgrades and updates to such software made available by Cloudyn from time to time (collectively, the “Software”), solely for use in connection with use of the Service and only during the Term (as defined herein). Cloudyn also grants you a non-exclusive, non-transferable license to use the accompanying software documentation (“Documentation”) in connection with your use of the Software. You acquire no right, title, or interest to the Software or Documentation except the limited license described in this paragraph.
- Your Systems. The Software and Service provide an online, cost analysis, optimization and control service for your cloud (“Cloud”) account (“Customer Systems”). Cloudyn monitors your Customer Systems activity and produces analytic reports (the “Service”). By entering into this Agreement, you agree to provide and allow Cloudyn access to your Cloud account(s) via the Internet for the purposes of providing the Service to you, and you represent and warrant that you have the right to grant this access to Cloudyn. You are solely responsible for the set-up, maintenance, and security of the Customer Systems, and you acknowledge that frequent, regular software updates for internet browsers, antivirus, operating systems, and other communication software are essential to the security of the Customer Systems. Cloudyn disclaims all liability for any breach of the security of Customer Systems caused by a lack of frequent, regular software updates for internet browsers, antivirus, operating systems, and other communication software.
- Your Data. In providing the Service to you, Cloudyn will collect and analyze data (“Customer Data”) from Customer Systems. Cloudyn does not analyze or collect any information held within the files stored on Customer Systems, and such information does not constitute Customer Data for the purposes of this Agreement. You agree that Cloudyn may collect and store Customer Data for the purposes of delivering the Service to you. Cloudyn will keep the Customer Data confidential, use it to deliver the Service to you, for and not disclose it to any third party except Cloudyn employees and contractors who have entered into binding agreements with Cloudyn that contain non-disclosure obligations equivalent to those set forth in this Agreement. Cloudyn may aggregate Customer Data with data from other Cloudyn customers and third parties to create aggregated data that does not identify any individual customer or the metrics or information pertaining to any individual customer or its network (“Aggregated Data”). Cloudyn will own all rights to Aggregated Data, and has the irrevocable right to maintain, store, use and disclose Aggregated Data. Your data is subject to the “Standard Contractual Clauses” pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under the EU Data Protection Directive. In countries where regulatory approval is required for use of the Standard Contractual Clauses, the Standard Contractual Clauses cannot be relied upon under European Commission 2010/87. The Contractual Clauses can be found here.
- Feedback. Upon request by Cloudyn, you will provide Cloudyn with reasonable information about your use and evaluation of the Service, including, without limitation, any errors, logs, usage statistics or problems in the Service and any information reasonably necessary for Cloudyn to evaluate such errors or problems, test results and performance data, information relating to the compliance of the Service with documentation, specifications or functionality and comparison with other software or products (collectively, “Evaluation Data”). Without limiting the foregoing, you irrevocably consent to Cloudyn’s collection of Evaluation Data and any other information and data relating to your use of the Service, by various means (including without limitation through the Service), without any further notice to, or consent of, you.
- Referrals. You may have been referred to Cloudyn’s Services and Software by third party partners or affiliates of Cloudyn (“Partner”). In such event, Cloudyn may be responsible to pay a referral fee to the Partner. You shall not be responsible for the payment of such referral fees to the Partner. In addition, Cloudyn may grant to the Partner access to your Customer Data, Evaluation Data and Customer Systems for the purpose of analyzing your account.
- Restrictions. You may NOT: (i) make any copies of all or any part of the Software or otherwise reproduce the Software except for archival copies as permitted by the United States Copyright Act; (ii) copy or modify all or any part of the Documentation or distribute it to third parties; (iii) use the Software or Service in connection with a service-bureau, time sharing or fee-for-service arrangement with third parties, or otherwise provide the benefit of the Service to any third party; (iv) unless otherwise permitted by applicable local law, decompile, decrypt, disassemble, reverse engineer or otherwise discover the source code for the Software, or attempt to disable or defeat any locking mechanism within the Software; (v) modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or any part of the Software; (vi) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software; or (vii) export the Software or use the Software in any country other than that in which it was obtained; (viii) use any robot, spider, scraper, or other automated means to access the Service for any purpose; (ix) interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities, (x) use the functionality of the Software or Service, in whole or in part, in a manner which competes directly or indirectly with Cloudyn’s Software or Service; or (xi) use the Service in any unlawful manner or in breach of these Terms.
- Competitive Nature. Notwithstanding any provision contained in this Agreement, in the event that you compete with or provide services which compete with the Cloudyn Services, you are strictly forbidden to enter into this Agreement. You may not use or copy by any means functionality of the Cloudyn Software of Service, in whole or in part, including without limitation, content found on Cloudyn’s website, webinars, or any and all other virtual and non-virtual sites, Documentation, etc, which incorporate the intellectual property of Cloudyn, in a manner will violate any and all laws. In the event that you have violated this Agreement, and in particular the terms set forth in this section 7, we hereby reserve any and all necessary legal actions and recourse to enforce Cloudyn’s rights according to this Agreement, including seeking punitive damages.
- Ownership, Non-Disclosure. Cloudyn owns and will retain all right, title and interest, including without limitation all copyright, trademarks, trade secret, patent and other proprietary rights, in and to the Service, Software, Documentation, Evaluation Data and Aggregated Data (the “Proprietary Materials”). You shall keep confidential and not disclose, sell, lease, transfer, sublicense, dispose of, or otherwise make available the Proprietary Materials or any portion thereof, in source or object code, to any third party other than your employees who need access to the Proprietary Materials in order to use the Service and exercise your license rights granted herein. You agree that dissemination of the Proprietary Materials in breach of this Agreement would cause irreparable harm to Cloudyn for which monetary compensation alone would be inadequate, and Cloudyn is entitled to seek injunctive relief prohibiting any such dissemination, in addition to monetary damages and all other remedies available at law or in equity. This Agreement is NOT a sale of the Proprietary Materials or any copy of them. You obtain only such rights as are provided in this Agreement.
- Term; Enforcement of Terms; Termination. The Service is provided on a pay-as-you-go basis for a period of one (1) month (“Subscription Period”) automatically renewable for successive Subscription Periods unless either party provides the other with at least three (3) business days written notice prior to the end of any Subscription Period of its intent not to renew, or these Terms are terminated in accordance with this Section 8 (each a “Renewal Term”, and together with the Initial Term, the “Term”). These Terms shall become effective on the earlier of (i) the date that you commence access to or use of the Service; or (ii) the date that we receive payment of the applicable subscription fee. Notwithstanding the foregoing, if you breach or fail to fulfill any of your obligations under this Agreement, Cloudyn may pursue all available legal remedies to enforce this Agreement, and Cloudyn may, at any time after your default of this Agreement, terminate this Agreement and all licenses and rights granted to you hereunder. You agree that Cloudyn’s licensors referenced in the Software are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property. This License is effective until terminated. This License will terminate immediately without notice from Licensor if the End User fails to comply with any of its provisions. Upon termination the End User must destroy and uninstall the Software and all copies thereof, and the End User may terminate this License at any time by doing so.
- Free Trial Period. Cloudyn may, in its sole discretion and on a case to case basis, offer a free, no-obligations trial period of the Service (“Trial Period”) to its users. The Trial Period will commence on the initial date of the access or use of the Service and will conclude at the end of the trial period displayed on the Site (as amended from time to time), or sooner if (i) the account is upgraded by beginning to pay the applicable subscription fees, or (ii) if the use of the Service is terminated in accordance with these Terms. You acknowledge and agree that these Terms are applicable and binding upon you during the Trial Period and that Cloudyn (i) does not make any commitments in connection with the Service; and (ii) may send you, subject to your opting out, communications and other notices about the Service to your email address. Cloudyn reserves the right to modify, cancel and/or limit this Trial Period offer at any time.
- U. S. Government Users. Pursuant to the policy stated at 48 CFR 227.7202-1, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by Cloudyn for licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government, except to the extent which such licenses are inconsistent with Federal procurement law.
- Limited Support. Cloudyn may, in its discretion, provide you with reasonable assistance with installation of the Software through its email help address at firstname.lastname@example.org. Except for any such assistance, the Service does not include any implementation, helpdesk, support or maintenance services with respect to the Software, nor to any bug fixes, error corrections, updates, upgrades or new versions of the Software. The assistance provided by Cloudyn is not bound to any SLAs or SLOs.
- Use of Subcontractors. Cloudyn may hire subcontractors to provide services on its behalf. Any such subcontractors will be permitted to obtain Your Data to deliver the services Cloudyn has retained them to provide and will be prohibited from using Your Data for any other purpose. Cloudyn remains responsible for its subcontractors’ compliance with Cloudyn’s obligations with these terms.
- Fees. Your access to and use of the Service is subject to your timely, up-front payment in full of the subscription fees set forth in the Order Form (which are based on the amounts displayed on the Site). Cloudyn reserves the right upon thirty (30) days notice to you to increase the subscription fees payable for the next Renewal Term(s) to Cloudyn’s ‘s then-current subscription fees, as displayed on the Site, for access to and use of the Service. All fees shall be paid in US Dollars, are non-refundable and are exclusive of all taxes, levies, or duties, which are your responsibility. Overdue payments shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law. If you authorize the charging of the applicable subscription fees to your credit card, we will charge the credit card account that you authorize and will continue to charge that card (or any replacement card) during each Renewal Term. If payment is not received from your card issuer, you agree to promptly pay all amounts due upon demand.
- Limited Warranty and Disclaimer. CLOUDYN WARRANTS THAT, DURING THE PERIOD THAT YOU HAVE PAID APPLICABLE FEES AND REMAIN IN COMPLIANCE WITH THIS AGREEMENT, THE SERVICE WILL OPERATE IN SUBSTANTIAL CONFORMANCE WITH THE FUNCTIONALITY CURRENT AT THE TIME OF SHIPMENT. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICE TO ACHIEVE YOUR INTENDED RESULTS. YOU ACKNOWLEDGE THAT THE SERVICE DOES NOT INCLUDE THE IMPLEMENTATION OF ANY ACTIONS OR DECISIONS ON YOUR BEHALF AND YOU ARE SOLELY RESPONSIBLE FOR TAKING OR NOT TAKING ACTIONS OR DECISIONS ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AS WELL AS FOR THE CONSEQUENCES THEREOF. NEITHER CLOUDYN NOR ITS LICENSORS MAKE ANY WARRANTIES WITH RESPECT TO THIRD PARTY SOFTWARE INCLUDED IN THE SOFTWARE. EXCEPT FOR THE FOREGOING WARRANTY, CLOUDYN PROVIDES THE SERVICE AND SOFTWARE TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CLOUDYN DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. CLOUDYN DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY INFORMATION, RESULTS, OR ADVICE THAT YOU OBTAIN THROUGH THE SERVICE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. CLOUDYN’S LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE. IN NO EVENT SHALL CLOUDYN BE LIABLE FOR ANY BREACH OF THIS AGREEMENT TO THE EXTENT SUCH BREACH IS OUTSIDE ITS REASONABLE CONTROL.
- Limitation of Liability. IN NO EVENT SHALL CLOUDYN OR ITS LICENSORS AND ANY OF THE RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER AFFILIATES OF CLOUDYN BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWILL), WHETHER OR NOT CLOUDYN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CLOUDYN’S MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OR POSSESSION OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE AMOUNT OF THE FEES YOU HAVE PAID FOR THE SERVICE PROVIDED UNDER THIS AGREEMENT DURING THE LAST SIX (6) MONTHS PRIOR TO THE CLAIM.
- Compliance with Laws. Each party shall comply with all applicable laws relating in any way to its performance of its obligations under these Terms. You agree to comply fully with all applicable export laws and regulations in any jurisdiction to ensure that neither the Service nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
- Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York excluding its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. You and Cloudyn agree that the competent courts located in the Southern District of New York, shall have exclusive jurisdiction over any disputes arising in connection with the Service or this Agreement, and each party hereby submits to jurisdiction and venue of such courts.
- Complete Agreement. This Agreement constitutes the entire agreement between you and Cloudyn in relation to the Service, and supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and Cloudyn relating to the Service and Software, and may only be modified in writing signed by you and Cloudyn. Failure to comply with any terms of this Agreement shall be deemed a material breach of this Agreement and Cloudyn reserves the right to take any and all necessary legal actions to enforce its rights according to this Agreement. You may not assign this Agreement or any right or license hereunder without the prior written consent of Cloudyn. In the event any term of this Agreement is held by a court of competent jurisdiction not to be enforceable, the remaining terms shall survive and be enforced to the maximum extent permissible by law. No waiver of any right or obligation contained herein shall be given except in writing signed by the party against whom the waiver is sought to be enforced.
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