Terms of Service
Date Updated: 5/6/2013
BY INSTALLING OR USING THE SOFTWARE (THE “SOFTWARE”) THAT ACCOMPANIES THESE TERMS OF SERVICE (“TERMS”) OR BY ACCESSING OR USING ANY OF THE FEATURES OR FUNCTIONALITY OF THE SERVICE (THE “SERVICE”) PROVIDED BY CLOUDVELOCITY, INC. (“CLOUDVELOCITY”) AND MADE AVAILABLE SOLELY FOR USE IN CONJUNCTION WITH THE SOFTWARE, YOU (“YOU” OR “YOUR”) AGREE TO THESE TERMS. YOU MAY NOT USE THE SOFTWARE OR THE SERVICE, OR ACCEPT THESE TERMS, IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH CLOUDVELOCITY. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
The Service may also be subject to guidelines, rules, or additional terms of service (collectively, the “Additional Terms”), which will be posted at http://www.cloudvelocity.com/legal (the “Site”) and are hereby incorporated by reference. If there is any conflict between these Terms and the Additional Terms, the Additional Terms take precedence in relation to the Service.
1. DEFINITIONS. Capitalized terms shall have the meanings set forth in this Section or in the Section where they are first used.
1.2 “Amazon Parties” means, collectively, Amazon Web Services LLC and its Affiliates.
1.3 “Amazon Services” means any and all web, online, cloud, and other services provided by any of the Amazon Parties.
1.4 “Content” means any and all information, data, results, ideas, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, or other materials.
1.5 “Customer Content” means any and all Content, and software, provided, imported or uploaded to the Service by you or on your behalf.
1.6 “Documentation” means all specifications, user manuals, and other technical materials relating to the Service.
1.7 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.8 “Third Party Service Provider” means any third party, such as, but not limited to, an Amazon Party or Rackspace, that provides any web, online, cloud, or other service used by CloudVelocity to host and/or provide the Service.
1.9 “Users” means you and your employees, contractors, or third parties (if any) whom you authorize to use the Service in accordance with these Terms.
2. LICENSE GRANT AND RESTRICTIONS
2.2 Limitations. You agree that you will not: (a) permit any party to access and/or use the Service, other than the Users authorized under these Terms; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service; (d) reverse engineer or access the Software or Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Software or Service, or (iii) copy any ideas, features, functions or graphics of the Software or Service; (e) without CloudVelocity’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service; (f) publish any performance or benchmark tests or analyses relating to the Software or Service or the use thereof; (g) modify, adapt, alter, translate, or create derivative works from the Software; (h) merge the Software with other software; (i) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any third party; or (j) use or reproduce the Software except as expressly permitted in Section 2.1.
2.3 IP Ownership. The Software, the Service (including any Content incorporated therein but excluding your Customer Content), and any and all of CloudVelocity’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to you by CloudVelocity in providing the Service, (collectively, the “CloudVelocity Technology”), and all Intellectual Property Rights in the foregoing, is the exclusive property of CloudVelocity or its suppliers. You acknowledge and agree that any comments, ideas and/or reports you provide to CloudVelocity (“Feedback”) shall be the property of CloudVelocity and you hereby irrevocably transfer and assign to CloudVelocity all Intellectual Property Rights embodied in or arising in connection with such Feedback. You agree to provide CloudVelocity any assistance it may require to document, perfect, and maintain its rights in the Feedback. Feedback will not include any confidential Customer Content. Except as expressly set forth in this Section 2, no express or implied license or right of any kind is granted to you regarding the CloudVelocity Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the CloudVelocity Technology. All rights not expressly granted to you are reserved to CloudVelocity.
2.4 Open Source Software. Certain items of software included with the Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to these Terms, except Sections 9.2 and 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, CloudVelocity makes such Open Source Software, and CloudVelocity’s modifications to that Open Source Software, available by written request at the notice address specified below in Section 13.10.
3. ACCOUNTS. CloudVelocity makes certain features of the Service available only if you have paid a fee and/or registered to create a CloudVelocity master account (“Master Account”). The holder of the Master Account will have the ability to create user accounts (“User Accounts”) with varying levels of privileges and associated usernames and passwords. CloudVelocity reserves the right to change or update these usernames and passwords in CloudVelocity’s sole discretion from time to time. You are responsible for maintaining the confidentiality of all usernames and passwords, and are solely responsible for all activities that occur under these usernames. You agree (a) not to allow any third party other than an authorized User to use the Master Account or any User Account or any related usernames or passwords at any time; and (b) to notify CloudVelocity promptly of any actual or suspected unauthorized use of the Master Account or any User Account or any related usernames or passwords, or any other breach or suspected breach of these Terms. CloudVelocity reserves the right to terminate any Master Account or User Account, which CloudVelocity reasonably determines may have been used by an unauthorized third party.
4.2 Billing and Renewal. CloudVelocity charges and collects fees in advance of the applicable subscription period. CloudVelocity will automatically renew your subscription at the end of the applicable subscription period unless you cancel your subscription by following the directions on the Site. If you pay by credit card, CloudVelocity will automatically bill your credit card upon each renewal of your subscription. All payment obligations are non-cancelable and all amounts paid are nonrefundable, except as provided otherwise in these Terms. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. CloudVelocity shall be entitled to withhold performance and suspend the Service until all amounts due are paid in full. CloudVelocity’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States taxes based solely on CloudVelocity’s income. You agree to provide CloudVelocity with complete and accurate billing and contact information. This information will include your legal company name, street address, email address and name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, CloudVelocity may terminate your access to the Service in addition to exercising any other legal remedies.
5. CUSTOMER CONTENT
5.2 Representations. You represent and warrant that: (a) you have full right and authority to grant the licenses granted in these Terms, including the right for CloudVelocity to use any third party software applications that may be replicated and hosted through the Service; (b) no portion of the Customer Content shall (i) infringe any copyright, trademark, or patent, (ii) misappropriate any trade secret, (iii) contain any viruses, worms or other malicious computer programming code able to damage the Service or Content contained therein, (iv) otherwise violate the rights of a third party, or (v) violate any applicable law, rule, or regulation; and (c) you will comply with the terms and conditions of the Acceptable Use Policy available at http://www.cloudvelocity.com/legal. You acknowledge and agree that CloudVelocity may suspend your access to the Service for any violation or suspected violation of this Section.
5.3 Security and Backups. The maximum storage space provided to you at no additional charge is as specified on the Site. If the amount of storage required exceeds these limits, you will be charged the then-current storage fees. CloudVelocity reserves the right to establish or modify its general practices and limits relating to the storage of Customer Content. CloudVelocity will have no obligation or liability for backing up Customer Content. You are solely responsible for backing up your Customer Content.
5.4 Access to Customer Content upon Termination. You agree and acknowledge that Company has no obligation to retain the Customer Content in the event these Terms terminate and may delete such Customer Content, at any time on or after termination.
6. CLOUDVELOCITY USE OF INFORMATION. CloudVelocity collects information and data on how the Software and Service is used by customers (“Use Data”). CloudVelocity reserves the right to use the Use Data for its internal business purposes and disclose to and share with third parties the Use Data in an anonymous and aggregated form, at its discretion.
7. COPYRIGHT POLICY. CloudVelocity reserves the right to bar any customer who repeatedly infringes third party copyright rights from accessing CloudVelocity’s services. If you believe that your copyrighted work has been copied and posted to the Service by another user in a way that constitutes copyright infringement and wish to have the allegedly infringing material removed, you must provide CloudVelocity with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work that you claim has been infringed; (c) an identification of, and information sufficient for CloudVelocity to locate, the material you believe to be infringing; (d) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (e) your name and contact information, such as telephone number or email address; and (f) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for CloudVelocity’s Copyright Agent for notice of claims of copyright infringement is as follows:
Attn: Copyright Agent
2350 Mission College Boulevard
Santa Clara, CA 95054
8.2 Restrictions. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms, and will disclose the Confidential Information of the Disclosing Party only to the employees, contractors, or service providers of the Receiving Party who have a need to know such Confidential Information for purposes of these Terms and who are bound by written confidentiality obligations. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
8.3 Exceptions. The Receiving Party’s obligations under Section 8.2 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under these Terms in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
8.4 Return of Confidential Information. The Receiving Party will either, at its option, return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the termination of these Terms, whichever comes first.
9. LIMITED WARRANTY AND DISCLAIMER
9.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICE ARE PROVIDED “AS IS,” AND CLOUDVELOCITY (AND ITS SUPPLIERS) MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE OR SERVICE (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY CLOUDVELOCITY. CLOUDVELOCITY (AND ITS SUPPLIERS) DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, THAT OPERATION OF THE SOFTWARE OR SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT YOUR CUSTOMER CONTENT WILL BE SECURE OR NOT LOST OR DAMAGED. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CLOUDVELOCITY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
10. LIMITATION OF LIABILITY
10.2 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and these Terms entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10.3 Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
11.2 By You. You agree to defend, indemnify and hold CloudVelocity harmless from and against any claims, suits, losses, damages, liabilities, fines, penalties, sanctions, costs, and expenses (including reasonable attorneys’ fees) brought by third parties based upon, resulting from or related to: (a) any improper or unauthorized use of the Service by you or your Users; (b) any breach or inaccuracy of any representations or warranties made by you in these Terms; or (c) any breach of Section 13.4 (Import and Export Compliance).
11.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
12.2 Termination by You. If you wish to terminate these Terms, you may do so by (a) notifying CloudVelocity at any time; and (b) closing your Master Account for the Service, where CloudVelocity has made this option available to you. Your notice should be sent, in writing, to CloudVelocity’s address set forth below in Section 13.10.
12.3 Termination by CloudVelocity. CloudVelocity may at any time terminate these Terms if (a) you have breached any provision of these Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms); (b) CloudVelocity is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); (c) the provision of the Service to you by CloudVelocity is, in CloudVelocity’s opinion, no longer commercially viable; or (d) CloudVelocity has elected in its sole discretion to discontinue the Software or Service (or any part thereof).
12.4 Effect of Termination. Termination of your Master Account includes: (a) removal of access to all offerings within the Service; (b) deletion of your password and all related information; and (c) barring of further use of the Service. Upon termination of these Terms, you shall promptly discontinue use of the Software and Service and permanently erase all copies of the Software. Sections 1, 2.2, 2.3, 4.2, 5.2, 6, 8, 9.2, 10, 11, 12.4, and 13 will survive the termination of these Terms for any reason.
13.2 Non-Assert. During and after the Term, to the extent the Service is provided using the Amazon Services, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against the Amazon Parties or its customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Amazon Services.
13.3 Governing Law and Venue. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any action or proceeding arising from or relating to these Terms must be brought in a federal court located in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, except that CloudVelocity may file a claim or take action in any court having jurisdiction to protect its intellectual property or confidential or proprietary information. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
13.4 Import and Export Compliance. You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software and your Customer Content. You agree to comply with all applicable import, re- import, export, and re-export laws, rules, and regulations of the United States and foreign jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State, in connection with your Customer Content and your use of the Software and Service. You are solely responsible for compliance related to the manner in which you choose to use the Service, including your transfer and processing of your Customer Content and the provision of your Customer Content to Users.
13.5 Severability; Waiver; Construction. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. “Includes” and “including” are not limiting.
13.6 Remedies. The parties acknowledge that any actual or threatened breach of the Sections 2 (License Grant and Restrictions) or 8 (Confidentiality) will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
13.7 No Assignment; Subcontracting. Neither party shall assign or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign these Terms in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets without any consent of the other party. Notwithstanding the foregoing, CloudVelocity will have the right to engage subcontractors or service providers in connection with these Terms. These Terms shall be binding upon the parties and their respective successors and permitted assigns.
13.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, telecommunications failures, Third Party Service Provider, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.9 Independent Contractors. The parties’ relationship is that of an independent contractor, and neither party is an agent or partner of the other.
13.10 Notices. You are responsible for updating your data to provide CloudVelocity with your most current email address. In the event that the last email address you have provided to CloudVelocity is not valid, or for any reason is not capable of delivering to you any notices required by these Terms, CloudVelocity’s dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described on the notice. Any notice provided to CloudVelocity pursuant to these Terms should be sent to:
2350 Mission College Boulevard
Santa Clara, CA 95054
13.11 Modifications; Entire Agreement. CloudVelocity may change the Terms from time to time at its sole discretion, and if CloudVelocity makes any material changes, we may notify you by sending an email to the last email address you provided to us and/or by posting notice of the change on the Site. Any material changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an email notice to you or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Service. CloudVelocity may require you to provide consent to the updated Terms in a specified manner before further use of the Service is permitted. Otherwise, your continued use of the Service constitutes your acceptance of the changes. Please regularly check the Site to view the then-current Terms. Except as set forth in this Section, no modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing and signed by your authorized signatory and an officer of CloudVelocity. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters.