Cloud Service Agreement
Service Access and Use
During the Subscription Period and subject to the terms of this Agreement, Customer may (a) access and use the Cloud Service; and (b) copy and use the included Software and Documentation only as needed to access and use the Cloud Service, in each case, for its internal business purposes. If a Customer Affiliate enters a separate Order Form with Provider, the Customer’s Affiliate creates a separate agreement between Provider and that Affiliate, where Provider’s responsibility to the Affiliate is individual and separate from Customer and Customer is not responsible for its Affiliates’ agreement.
Support
During the Subscription Period, Provider will provide Technical Support as described in the Order Form.
User Accounts
Customer is responsible for all actions on Users’ accounts and for all Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.
Feedback and Usage Data
Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS”. Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, enhance, and promote Provider’s products and services without restriction or obligation. However, Provider may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer or Users.
Customer Content
Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings. Customer is responsible for the accuracy and content of Customer Content.
Machine Learning
Usage Data and Customer Content may be used to develop, train, or enhance artificial intelligence or machine learning models that are part of Provider's products and services, including third-party components of the Product, and Customer authorizes Provider to process its Usage Data and Customer Content for such purposes. However:
- (a) Usage Data and Customer Content must be aggregated before it can be used for these purposes, and
- (b) Provider will use commercially reasonable efforts consistent with industry standard technology to de-identify Usage Data and Customer Content before such use.
Nothing in this section will reduce or limit Provider's obligations regarding Personal Data that may be contained in Usage Data or Customer Content under Applicable Data Protection Laws. Due to the nature of artificial intelligence and machine learning, information generated by these features may be incorrect or inaccurate. Product features that include artificial intelligence or machine learning models are not human and are not a substitute for human oversight.
Restrictions & Obligations
Restrictions on Customer
Except as expressly permitted by this Agreement, Customer will not (and will not allow anyone else to):
- reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction);
- provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product;
- remove any proprietary notices or labels;
- copy, modify, or create derivative works of the Product;
- conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product;
- access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization;
- use the Product to develop a competing service or product;
- use the Product with any High Risk Activities or with any activity prohibited by Applicable Laws;
- use the Product to obtain unauthorized access to anyone else’s networks or equipment; or
- upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights.
Use of the Product must comply with all Documentation and Use Limitations.
Suspension
If Customer: (a) has an outstanding, undisputed balance on its account for more than 30 days; (b) breaches Section 2.1 (Restrictions on Customer); or (c) uses the Product in violation of the Agreement or in a way that materially and negatively impacts the Product or others,
then Provider may temporarily suspend Customer’s access to the Product with or without notice. However, Provider will try to inform Customer before suspending Customer’s account when practical. Provider will reinstate Customer’s access to the Product only if Customer resolves the underlying issue.
Privacy & Security
Personal Data
Before submitting Personal Data governed by GDPR, Customer must enter into a data processing agreement with Provider. If the parties have a DPA, each party will comply with its obligations in the DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement.
Prohibited Data
Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless authorized by the Order Form or Key Terms.
Payment & Taxes
Fees
Unless the Order Form specifies a different currency, all Fees are in U.S. Dollars and are exclusive of taxes. Except for the prorated refund of prepaid Fees allowed with specific termination rights given in the Agreement, Fees are non-refundable.
Invoicing
For a Payment Process with invoicing, Provider will send invoices for usage-based Fees in arrears and for all other Fees in advance, in each case according to the Payment Process.
Automatic Payment
For a Payment Process with automatic payment, Provider will automatically charge the credit card, debit card, or other payment method on file for Fees according to the Payment Process and Customer authorizes all such charges. In this case, Provider will make a copy of Customer's bills or transaction history available to Customer.
Taxes
Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding, that Provider itemizes and includes in an invoice. However, Customer is not responsible for Provider’s income taxes.
Payment
Customer will pay Provider Fees and taxes in U.S. Dollars, unless the Order Form specifies a different currency, according to the Payment Process.
Payment Dispute
If Customer has a good-faith disagreement about the Fees charged or invoiced, Customer must notify Provider about the dispute before payment is due, or within 30 days of an automatic payment, and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days. If no resolution is agreed, each party may pursue any remedies available under the Agreement or Applicable Laws.
Term & Termination
Order Form and Agreement
For each Order Form, the Agreement will start on the Order Date, continue through the Subscription Period, and automatically renew for additional Subscription Periods unless one party gives notice of non-renewal to the other party before the Non-Renewal Notice Date.
Framework Terms
These Framework Terms will start on the Effective Date and continue for the longer of one year or until all Order Forms governed by the Framework Terms have ended.
Termination
Either party may terminate the Framework Terms or an Order Form immediately:
- if the other party fails to cure a material breach of the Framework Terms or an Order Form following 30 days notice;
- upon notice if the other party:
1. materially breaches the Framework Terms or an Order Form in a manner that cannot be cured; 2. dissolves or stops conducting business without a successor; 3. makes an assignment for the benefit of creditors; or 4. becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.
Force Majeure
Either party may terminate an affected Order Form upon notice if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days. Provider will pay to Customer a prorated refund of any prepaid Fees for the remainder of the Subscription Period. A Force Majeure Event does not excuse Customer's obligation to pay Fees accrued prior to termination.
Effect of Termination
Termination of the Framework Terms will automatically terminate all Order Forms governed by the Framework Terms. Upon any expiration or termination:
- Customer will no longer have any right to use the Product.
- Upon Customer’s request, Provider will delete Customer Content within 60 days.
- Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.
- Provider will submit a final bill or invoice for all outstanding Fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment & Taxes).
Survival
The following sections will survive expiration or termination of the Agreement:
- Section 1.4 (Feedback and Usage Data)
- Section 1.6 (Machine Learning)
- Section 2.1 (Restrictions on Customer)
- Section 4 (Payment & Taxes) for Fees accrued or payable before expiration or termination
- Section 5.5 (Effect of Termination)
- Section 5.6 (Survival)
- Section 6 (Representations & Warranties)
- Section 7 (Disclaimer of Warranties)
- Section 8 (Limitation of Liability)
- Section 9 (Indemnification)
- Section 10 (Confidentiality)
- Section 11 (Reservation of Rights)
- Section 12 (General Terms)
- Section 13 (Definitions)
- and the portions of a Cover Page referenced by these sections.
Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 3 (Privacy & Security) and Section 10 (Confidentiality) will continue to apply to retained Confidential Information.
Representations & Warranties
Mutual
Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and (d) it will comply with the Additional Warranties.
From Customer
Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in the Agreement.
From Provider
Provider represents and warrants to Customer that it will not materially reduce the general functionality of the Cloud Service during the Subscription Period.
Provider Warranty Remedy
If Provider breaches the warranty in Section 6.3 (Representations & Warranties from Provider), Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the Cloud Service. If Provider cannot resolve the issue, Customer may terminate the affected Order Form and Provider will pay to Customer a prorated refund of prepaid Fees for the remainder of the Subscription Period. Provider’s restoration obligation, and Customer’s termination right, are Customer’s only remedies if Provider does not meet the warranty in Section 6.3 (Representations & Warranties from Provider).
Disclaimer of Warranties
Provider makes no guarantees that the Product will always be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. The warranties in Section 6 (Representations & Warranties) do not apply to any misuse or unauthorized modification of the Product, nor to any product or service provided by anyone other than Provider. Except for the warranties in Section 6 (Representations & Warranties), Provider and Customer each disclaim all other warranties and conditions, whether express or implied, including the implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.
Limitation of Liability
Liability Caps
Except as provided in Section 8.4 (Exceptions), each party’s total cumulative liability for all claims arising out of or relating to this Agreement will not be more than the General Cap Amount. If there are Increased Claims, each party’s total cumulative liability for all Increased Claims arising out of or relating to this Agreement will not be more than the Increased Cap Amount.
Damages Waiver
Except as provided in Section 8.4 (Exceptions), under no circumstances will either party be liable to the other for lost profits or revenues (whether direct or indirect), or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.
Applicability
The limitations and waivers contained in Sections 8.1 (Liability Caps) and 8.2 (Damages Waiver) apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.
Exceptions
The liability cap in Section 8.1(a) does not apply to any Increased Claims. Section 8.1 (Liability Caps) does not apply to any Unlimited Claims. Section 8.2 (Damages Waiver) does not apply to any Increased Claims or a breach of Section 10 (Confidentiality). Nothing in this Agreement will limit, exclude, or restrict a party's liability to the extent prohibited by Applicable Laws.
As a specific exception to the foregoing, the Provider’s aggregate liability for any and all claims arising from a breach of Section 3 (Privacy & Security) or Section 10 (Confidentiality) shall not exceed 5.0 times the fees paid or payable by Customer to Provider in the 12 month period immediately before the claim if at the time of the claim the contract is active, otherwise 5.0 times the fees paid or payable by Customer to Provider in the 12 month period immediately prior to the effective date of termination or expiration of this Agreement.
Any such claim must be brought no later than five (5) years following the expiration or termination of this Agreement.
Indemnification
Protection by Provider
Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Provider Covered Claims.
Protection by Customer
Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer Covered Claims.
Procedure
The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim.
A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.
Changes to Product
If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid Fees for the remainder of the Subscription Period.
Exclusions
Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from:
- modifications to the Product that were not authorized by Provider or that were made in compliance with Customer’s instructions;
- unauthorized use of the Product, including use in violation of this Agreement;
- use of the Product in combination with items not provided by Provider; or
- use of an old version of the Product where a newer release would avoid the Provider Covered Claim.
Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of the Customer Content, including use in violation of this Agreement.
Exclusive Remedy
This Section 9 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.
Confidentiality
Non-Use and Non-Disclosure
Except as otherwise authorized in the Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not: (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else.
In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.
Exclusions
Confidential Information does not include information that: (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.
Required Disclosures
Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.
Permitted Disclosures
Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).
Reservation of Rights
Except for the limited license to copy and use Software and Documentation in Section 1.1 (Access and Use), Provider retains all right, title, and interest in and to the Product, whether developed before or after the Effective Date. Except for the limited rights in Section 1.5 (Customer Content) and 1.6 (Machine Learning), Customer retains all right, title, and interest in and to the Customer Content.
General Terms
Entire Agreement
This Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. No terms or conditions in any Customer documentation or online vendor portal will apply to Customer's use