THIS ENTERPRISE AGREEMENT AND ALL POLICIES, GUIDELINES, AND DOCUMENTS REFERENCED HEREIN ARE COLLECTIVELY THE TERMS AND CONDITIONS OF USE OF THE CLOUDTHREAD WEBSITE, PLATFORM, AND ALL RELATED PRODUCTS AND/OR SERVICES. THIS AGREEMENT INCLUDES IMPORTANT LEGAL PROVISIONS THAT AFFECT ENTERPRISE’S LIABILITY AND RIGHTS AND OBLIGATIONS THAT ENTERPRISE MUST READ AND ACCEPT.
BY USING THE CLOUDTHREAD WEBSITE, ACCOUNTS, PLATFORM, AND ANY RELATED PRODUCTS AND/OR SERVICES, ENTERPRISE AND ALL ITS USERS AGREE TO BE BOUND BY THIS AGREEMENT AND ALL REVISIONS, UPDATES, AND/OR CHANGES THAT CLOUDTHREAD MAY PUBLISH FROM TIME TO TIME. EACH TIME ENTERPRISE AND/OR ANY AUTHORIZED ENTERPRISE USERS ACCESS OR USE ANY OF THE FOREGOING, ENTERPRISE REAFFIRMS THIS AGREEMENT AND ANY REVISIONS, UPDATES, AND/OR CHANGES AND ALL REPRESENTATIONS AND WARRANTIES AND COVENANTS.
1.2 Changes and Amendments. Cloudthread may at any time, in its sole discretion, amend or change this Agreement or any part of it, by posting on the Cloudthread Website a revised version. Cloudthread will provide reasonable advance notice of any amendment that includes a substantial change, by providing notice of such a substantial change on the Cloudthread Website and/or sending Enterprise notice by email. If any change in the Cloudthread Fees (as defined below) is a substantial and permanent increase, then Cloudthread will provide at least thirty (30) days advance notice of the increase. Any revisions and/or modifications of this Agreement will take effect on the later of the date of posting or the noted effective date.
Capitalized terms not defined below or above have the meanings set forth elsewhere in this Agreement.
2.1 “Account” means a login-accessed portion of the Cloudthread Website that may allow access to the Cloudthread Platform and/or other unique functionality, and to which account Enterprise and/or a User (as defined below) is granted access by (i) registering a unique username, password, and Profile (as defined below), (ii) agreeing to unique terms and conditions, and (iii) receiving an approval of registration from Cloudthread.
2.2 “Authorized Enterprise User” has the meaning set forth in Section 3 below.
2.3 “Cloud Services Provider” means a for-profit or a non-profit provider of any of the following and/or any related cloud-based products, services, and/or applications: Cloud storage, cloud computing, software as a service (SaaS), platform as a service (PaaS), infrastructure as a service (IaaS).
2.4 “Cloudthread Fees” shall have the meaning set forth in Section 5 of this Agreement.
2.5 “Cloudthread Platform” means the proprietary platform and functionality of Cloudthread accessed by registering and logging into an Account on the Cloudthread Websites.
2.6 “Cloudthread Services” means the Cloudthread Websites, Accounts, Cloudthread Platform, and all related products and/or services of Cloudthread.
2.7 “Content” means any and all information in any medium that is capable of being stored by computer, including without limitation any links, files, messages, texts, graphics, data, data models, databases, spreadsheets, code, script, software, sound, music, audio, photographs, graphics, video, maps, etc.
2.8 “Data Information Access” has the meaning set forth in Section 4 below.
2.9 “Enterprise” means any corporation, limited liability company, partnership, sole proprietorship, and/or other business entity that may provide its acceptance of the terms and conditions of this Agreement and be bound by them.
2.10 “Intellectual Property Rights” means all intellectual property and proprietary rights anywhere in the world under the laws of any state, country, territory, and/or other jurisdiction, as may now exist or hereafter come into existence, whether statutory, common law, or otherwise, including without limitation any and all patent rights (including patent applications and disclosures), copyright rights, trade secret rights, moral rights, know-how, database rights, mask work rights, rights of publicity, Marks (whether registered or unregistered), and all goodwill relating to the foregoing and any and all applications therefore and registrations, renewals, and extensions thereof.
2.11 “Mark” means any trademark, trade name, trade dress, service mark, corporate name, design, logo, device, domain name, and/or other indicator of the source or origin of any product or service.
2.12 “Profile” has the meaning set forth in Section 3 below.
2.13 “User” means any user of the Cloudthread Websites and/or Cloudthread Services, including without limitation Enterprise, Authorized Enterprise Users, and/or other individuals or third parties that use the Cloudthread Websites and/or Cloudthread Services.
2.14 “Website” means the websites collectively of Cloudthread, including the homepage, which is typically found www.cloudthread.io, and such other websites maintained by Cloudthread and its affiliates from time to time.
3.1 Registration. To use login-accessed portions of the Cloudthread Website and to access and use the Cloudthread Platform, Enterprise must register and obtain an Account, request activation of the Cloudthread Platform, and be accepted and approved by Cloudthread. By accessing such an Account, Enterprise reaffirms its commitment to the terms and conditions of this Agreement and that it is legally bound by them. Nevertheless, Enterprise acknowledges and agrees that Cloudthread is under no obligation to accept such Account registration and may decline any such registration for any lawful reason. Furthermore, even though Enterprise may successfully register and obtain an Account, Cloudthread shall be under no obligation to offer access to any unique functionality and/or applications associated with Account registration.
3.2 Profile. At the time of Account creation, Enterprise and any Authorized Enterprise User (as defined in Section 3.3 below) must register a User profile (“Profile”), and Enterprise and/or Authorized Enterprise User must always provide accurate, truthful, and complete information and maintain and update such profile to ensure ongoing accuracy, completeness, and truthfulness. Enterprise and all Authorized Enterprise Users agree not to provide any false or misleading information about their identity, physical location, their business, skills, and/or capabilities, or the services they provide, to correct any such information that is or becomes false or misleading, and to respond promptly to any requests for verification of such information.
3.3 Authorized Use. Enterprise agrees not to allow another person, entity, and/or enterprise to create or register an Account on its behalf or for its benefit, except that Enterprise may authorize a User to act on its behalf to create login credentials and establish an Account and Profile and to administer the activities of Enterprise on the Cloudthread Platform by means of such Account (“Authorized Enterprise User”). Enterprise shall ensure that such Authorized Enterprise User represents, warrants, and covenants as set forth in Section 3.4 below. Enterprise shall assume full responsibility for the use of such Account or Accounts and each such Authorized Enterprise User that accesses and/or uses such Account or Accounts and/or accesses and uses the Cloudthread Services. Enterprise acknowledges and agrees that all User and Account information, and any rights, privileges, and/or licenses any Authorized Enterprise User claims, will be subject to verification at any time and from time to time, including without limitation against third-party databases or government and/or legal registrations or documents. Enterprise authorizes Cloudthread and its agents to make inquiries and to investigate as necessary to validate Enterprise’s and all Authorized Enterprise Users’ Account information and Profiles, including without limitation identity, location, email addresses, authorization to act for any enterprise and/or company, etc. Enterprise also agrees to provide evidence to verify any or all of the foregoing when requested by Cloudthread, to the satisfaction of Cloudthread in its sole discretion. Until such time, Cloudthread may suspend any such User’s access to the Cloudthread Services.
3.4 Authorized Enterprise User. Enterprise and any and all Authorized Enterprise Users hereby represent, warrant, and covenant that: (i) Such User is an employee or agent of, and authorized to act for and bind, the applicable Enterprise; (ii) Such User will use the Cloudthread Services for business purposes only in accordance with all applicable laws, rules, and regulations; (iii) Such User will comply with any licensing, registration, regulatory, and/or other legal requirements with respect to its business, or the business for which it is acting, and with respect to the use of the Cloudthread Services; and (iv) Such User is an individual who is eighteen (18) years or older (or has otherwise reached the age of majority in the jurisdiction in which Authorized Enterprise User is located) in each case who can form legally binding contracts; and (v) Such User shall abide by and comply with this Agreement and all applicable user policies and guidelines; and (vi) Such User agrees not to share its username or password with any person, except such person or persons who are authorized hereby to use the Cloudthread Platform Account.
4.1 Platform Grant. During the term of this agreement and subject to its terms, and subject to the provision of Data Information Access as set forth in Section 4.2 below, Cloudthread grants Enterprise the limited, non-exclusive, non-transferrable, non-sublicensable right to access and use the Cloudthread Platform by means of an Account established and registered by Enterprise and/or its Authorized Enterprise User in accordance with this Agreement.
4.2 Cloud Service Provider Access. Enterprise hereby grants Cloudthread during the term of this Agreement a limited right of access to certain mutually agreed upon Cloud Services Provider accounts of Enterprise, and to the information and data therein and/or derived therefrom, for the sole purpose of allowing Cloudthread to retrieve and use certain financial, monitoring, and other information and data required by Cloudthread to provide the Cloudthread Services (“Data Information Access”). Enterprise shall authorize, enable, and ensure the ongoing Data Information Access. If Enterprise shall limit or restrict such Data Information Access so that Cloudthread determines, in its sole discretion, that it cannot provide the Cloudthread Services, then Cloudthread may immediately suspend the provision of the Cloudthread Services or terminate this Agreement, and during any such suspension, Cloudthread shall be relieved of its obligations to provide access or use of the Cloudthread Services.
4.3 Representations, Warranties, and Covenants. Enterprise and its Authorized Enterprise Users understand, acknowledge and agree that Data Information Access is a precondition to providing access and use of the Cloudthread Services, that only Enterprise and its Authorized Enterprise Users can reasonably determine the appropriate and lawful level and type of Data Information Access to be provided to Cloudthread that does not violate any third party agreement and/or rights and/or violate any laws, rules, and regulations, and that, therefore, it is the sole and exclusive responsibility of Enterprise to both provide sufficient and adequate Data Information Access, yet at the level and scope and type that is appropriate to the circumstances and that will not violate any third party agreements and/or rights and/or applicable laws, rules, and regulations.
Enterprise and each Authorized Enterprise User represents, warrants, and covenants that it (i) shall only provide Data Information Access that meets such requirements, (ii) shall only provide such Data Information Access as is necessary to meet the requirements of Cloudthread (iii) has and shall maintain all rights, privileges, and/or authorizations necessary and helpful to enable the provision of such level and type of Data Information Access provided on an ongoing basis (iv) shall secure and maintain all necessary and helpful authorizations and/or approvals of such in writing to enable such, and shall provide these to Cloudthread upon request; (v) shall not provide the Data Information Access, nor use and/or employ the Cloudthread Platform and/or Cloudthread Services, for any purpose, if it does not have the appropriate rights and licenses and authorizations to do so.
5.1 Enterprise Fees. Enterprise shall pay a monthly fee based upon Enterprise’s cloud architecture size and complexity (“Enterprise Account Data Fee” or “Cloudthread Fees”). Cloudthread shall provide Enterprise with the then-current pricing and fees in effect.
5.2 Payment Terms. Such Enterprise Account Data Fee shall be paid in full within thirty (30) days of the end of the month or the date of the applicable invoice, whichever is earlier. Except as expressly set forth in this Agreement, the Enterprise Account Data Fee is non-refundable and non-cancelable, and Cloudthread reserves the right to charge interest on such fees and other amounts due or payable hereunder that are not paid within fifteen (15) days of the earlier of when they were due or payable or when they were invoiced, at a rate of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, whichever is less, plus all expenses of collection.
5.3 Taxes. The fees and charges under this Agreement do not include any sales, use, excise, transaction and/or other similar taxes levied against or upon the rights of use or license or the furnishing or delivery or receipt of products and/or services pursuant to this Agreement, nor do they include any other charges or fees, imposed by a government, bank, or other. Enterprise shall be responsible for all fees and charges and taxes associated with the payment for the Cloudthread Services, other than United States taxes based on Cloudthread’s net income.
6.1 Termination for Inactivity. Subject to the terms hereof and applicable law, if a User Account remains inactive for six (6) months, then Cloudthread may suspend or terminate access to the Cloudthread Services, deactivate or delete the Account, and delete all its Content and/or data, and/or may terminate this Agreement.
6.2 Termination for Convenience. Subject to the following and the terms hereof, Enterprise or Cloudthread may at any time and for any reason (or no reason) terminate this Agreement, in its sole discretion, upon thirty (30) days prior written notice to the other party, and all access to Enterprise’s Accounts, the Cloudthread Platform, and/or the Cloudthread Services shall thereafter immediately terminate. Enterprise shall provide written notice of such termination to: firstname.lastname@example.org.
6.3 For Cause Termination or Response. Without limiting Cloudthread’s other rights or remedies, Cloudthread may, but is not obligated to, temporarily or indefinitely revoke or limit access to the Cloudthread Services, deny any User registration, and/or permanently revoke any User access to the Cloudthread Services if: (i) User breaches the letter or spirit of any terms and conditions of this Agreement; (ii) Cloudthread suspects or becomes aware that User has provided false or misleading data or information to Cloudthread or in an Account or Profile; (iii) Cloudthread believes, in its sole discretion, that User actions may cause legal liability for any other User and/or Cloudthread and/or its affiliates; or may involve illicit or illegal activity; (iv) any Authorized Enterprise User is acting without appropriate and/or necessary authorizations; and (v) Cloudthread is required by law, legal process, or law enforcement. If any User’s Account is temporarily or permanently closed, User may not use the Cloudthread Website, Cloudthread Account, and/or Cloudthread Services under the same Account or a different Account or re-register under a new Account without Cloudthread’s prior written consent.
Except as otherwise required by law, if an Authorized Enterprise User’s Account is closed for any reason, such User will no longer have access to Content, information, data, messages, files, and/or other material it keeps in the Cloudthread Services. Within a maximum of thirty (30) days following closure of any such User’s Account and/or termination of this Agreement for any reason, Cloudthread will, upon Enterprises’ written request, return such Account Content to Enterprise in a mutually agreed upon format. Absent such a request, any closure of an Authorized Enterprise User’s Account and/or any Account associated with Enterprise may involve deletion of any and all Content stored in the Account for which Cloudthread will have no liability whatsoever. Cloudthread, in its sole discretion and as permitted or required by law, may retain some or all of the Account information.
6.4 Survival. After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. The termination of this Agreement for any reason will not release Enterprise or Cloudthread from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
7.1 Retained Rights. Excluding data, information, or Content provided exclusively by Enterprise, Enterprise agrees that Cloudthread and its licensors and suppliers retain and own all rights, title and interests in and to the following and in and to all Intellectual Property Rights therein: (i) the Cloudthread Website and Accounts, Cloudthread Platform, Cloudthread Services, and/or any and all related products and services; (ii) the components and/or any and all other materials, data and/or information provided and/or made available by Cloudthread in connection with any of the foregoing; and (iii) any and all configurations, derivative works, developments, modifications, adaptations, changes, alterations, edits, conversions, improvements and/or the like made to, arising out of, and/or resulting from any of the foregoing. All rights not expressly granted under this Agreement, are reserved to Cloudthread and its licensors and suppliers, and there are no implied rights. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel, or otherwise, a right or license to any party’s data, information, intellectual property, or proprietary technology other than in strict accordance with the terms of this Agreement. Enterprise, Authorized Enterprise Users, and/or all other Users acknowledge and agree that Cloudthread and its licensors, suppliers, vendors and/or its third party vendors shall own all right, title and interest in and to all Intellectual Property Rights in and to and any suggestions, enhancement requests, feedback, and/or recommendations provided by Enterprise, Authorized Enterprises Users, and/or all other Users relating to the Cloudthread Services without any limitation any restrictions thereon nor requirement of compensation related thereto, including without limitation all unpatented inventions, patent applications, patents, design rights, copyrights, Marks, know-how and other trade secret rights, and all other Intellectual Property Rights, derivatives or improvements thereof.
7.2 Misuse of Cloudthread Services Prohibited. Enterprise and Authorized Enterprise Users may not and shall not, nor allow any User and/or third party to: (i) modify, disassemble, decompile or reverse engineer the Cloudthread Services, nor any services and/or products related to the foregoing or to this Agreement; (ii) copy the Cloudthread Services and/or make any derivative works thereof; (iii) use information from any of the Cloudthread Services to build a database for resale or for access by a third party in direct or indirect competition with the Cloudthread Services; (iv) delete or in any manner alter the copyright, Mark, and other proprietary rights notices, if any, of Cloudthread and its licensors and/or suppliers appearing on any Cloudthread Services. Enterprise and Authorized Enterprise Users shall not (a) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Cloudthread Services available to any third party; (b) attempt to disable or circumvent any security mechanisms used by the Cloudthread Services or any applications running on the Cloudthread Services; (c) engage in any activity that interferes with or disrupts the Cloudthread Services (or the servers and networks which are connected to the Services); (d) rent, lease, provide access to or sublicense any elements of the Cloudthread Services to a third party or use the Cloudthread Services on behalf of or to provide services to third parties; (e) access the Cloudthread Services in a manner intended to avoid incurring fees or exceeding usage limits or quotas; (f) access the Cloudthread Services for the purpose of bringing an intellectual property infringement claim against Cloudthread or for the purpose of creating a product or service competitive with the Cloudthread Services; or (g) use any robot, spider, site search/retrieval application or other manual or automatic program or device to retrieve, index, “scrape,” “data mine” or in any way gather Content from the Cloudthread Services. Furthermore, Enterprise and/or Authorized Enterprise Users may not and shall not, nor allow any User and/or third party to upload, record, publish, post, link to, transmit or distribute Content, or otherwise utilize the Cloudthread Services in a manner that: (i) advocates, promotes, incites, instructs, informs, assists or otherwise encourages violence, inappropriate behavior, and/or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Cloudthread, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about Enterprise or any Authorized Enterprise User’s identity or the origin of a message or other communication, or impersonates or otherwise misrepresents its affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, insensitive, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) utilizes or contains any viruses, Trojan horses, worms, malware, spyware, time bombs, and/or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising). Cloudthread reserves the right (but shall have no obligation) to monitor and remove Content from the Cloudthread Services, in its sole discretion. Enterprise and Authorized Enterprise Users agrees to immediately take down any Content they have supplied that violates the above terms, including pursuant to a takedown request from Cloudthread. Cloudthread also reserves the right to directly take down such Content. Enterprise and Authorized Enterprise User shall not create Internet "links" to the Cloudthread Services or "frame" or "mirror" any part of the Cloudthread Service, including any content or Content contained in the Cloudthread Services, on any other server or device. Except as expressly stated herein, no part of the Cloudthread Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means.
7.3 Export Compliance. The Cloudthread Services are subject to all applicable export control laws and regulations, including without limitation those of the United States government. Enterprise and Authorized Enterprise Users agree not to directly or indirectly export, re-export, divert, release, provide access to, transfer or disclose the Cloudthread Services, or any derivative thereof, to any prohibited or restricted destination, end-use or end-users or to anyone who requires a United States export license or other license, except in accordance with all relevant export control laws and regulations which may require it to obtain necessary licenses, approvals or permissions from the appropriate US governmental authority and all required foreign authorities prior to undertaking such activities.
7.4 Consumer Notices and Laws. Enterprise will, on behalf of itself and Cloudthread as its service provider, provide all required consumer notices and disclosures and, where required, secure consents in compliance with all applicable laws, rules, and regulations with respect to any Content and usage of the Cloudthread Services and with respect to any applicable consumer privacy regulations and with respect to any national security data rules. Except as expressly provided otherwise in this Agreement, Enterprise will be solely responsible for, and agrees to comply with, all applicable laws, rules, and regulations.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUDTHREAD WEBSITES, ACCOUNTS, THE CLOUDTHREAD PLATFORM, THE CLOUDTHREAD SERVICES AND/OR ANY AND ALL OTHER SERVICES AND/OR PRODUCTS RELATED THERETO AND/OR MADE AVAILABLE TO ENTERPRISE AND/OR AUTHORIZED ENTERPRISE USERS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND CLOUDTHREAD AND ITS LICENSORS, VENDORS, AND/OR SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, GUARANTEES, PROMISES, REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND/OR CONTENT AND/OR DATA ACCURACY. CLOUDTHREAD, ON BEHALF OF ITSELF AND ITS LICENSORS, VENDORS, AND/OR SUPPLIERS, DOES NOT WARRANT THAT THE CLOUDTHREAD SERVICES AND/OR ANY OR ALL OTHER SERVICES AND/OR PRODUCTS MADE AVAILABLE TO ENTERPRISE AND/OR AUTHORIZED ENTERPRISE USERS WILL MEET THEIR REQUIREMENTS OR EXPECTATIONS, THAT THE OPERATION AND/OR USE OF THE FOREGOING WILL BE UNINTERRUPTED AND/OR ERROR-FREE, OR THAT ANY ERRORS WILL BE CORRECTED. ENTERPRISE (AND ALL AUTHORIZED ENTERPRISE USERS) ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT, ABSENT SUCH DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS, THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT.
Enterprise and all Authorized Enterprise Users agree that Cloudthread shall not be liable for any damages or losses arising out of or in connection with the Cloudthread Website, Accounts, Cloudthread Platform, and/or Cloudthread Services, including, but not limited to: (i) inability to use them; (ii) delays or disruptions relating thereto; (iii) viruses or other malicious software obtained by accessing, or linking thereto; (iv) glitches, bugs, errors, or inaccuracies of any kind in them; (v) damage to Enterprise’s and/or Authorized Enterprise User’s hardware devices or software arising from the use thereof, or to the hardware or software of any third party; (vi) the content, actions, or inactions of third parties’ use of them; (vi) a suspension or other action taken with respect to the Accounts of Enterprise or Authorized Enterprise Users; (vii) Enterprise’s and/or Authorized Enterprise Users reliance on the quality, accuracy, or reliability of postings, profiles, ratings, recommendations, and feedback used on, or made available through the Cloudthread Services; and (viii) Enterprise or Authorized Enterprise Users need to modify practices, content, or behavior or its loss of or inability to do business, as a result of changes to the terms of service.
ADDITIONALLY, IN NO EVENT WILL CLOUDTHREAD, ITS AFFILIATES, ITS LICENSORS, NOR ITS THIRD-PARTY PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF CLOUDTHREAD, ITS AFFILIATES, ITS LICENSORS, AND ITS THIRD-PARTY PROVIDERS TO ENTERPRISE AND/OR ANY AUTHORIZED ENTERPRISE USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE TOTAL AMOUNT OF SEMI-ANNUAL FEES PAID BY ENTERPRISE TO CLOUDTHREAD. THESE LIMITATIONS WILL APPLY TO ANY AND ALL LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT OR RELATIONSHIP BETWEEN THE PARTIES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
Enterprise and Authorized Enterprise User will indemnify, defend, and hold harmless Cloudthread, its affiliates, and their respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims and Liabilities (defined below) relating to or arising out of (i) the representations, warranties, and covenants contained in this Agreement, including without limitation in Section 4 (ii) the use of the Cloudthread Services by Enterprise and/or Authorized Enterprise Users and/or its agents; (iii) any Enterprise and/or Authorized Enterprise User-supplied Content developed, provided, posted, published, and/or otherwise related to use of the Cloudthread Services; (iv) failure to comply with this Agreement and/or any related agreements, terms of service, guidelines, and/or usage policies by Enterprise, Authorized Enterprise User and/or its agents; (v) failure to comply with applicable law by Enterprise, Authorized Enterprise User, and/or or its agents; (vi) negligence, willful misconduct, or fraud by Enterprise, Authorized Enterprise User, and/or its agents; and (vii) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by Enterprise, Authorized Enterprise User and/or its agents. An agent includes any person who has apparent authority to access or use User’s account as demonstrated by using its username and password.
“Indemnified Claims and Liabilities” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses, and including costs related to securing insurance coverage) arising from and/or relating to any claim, suit, proceeding, demand, or action brought by Enterprise, Authorized Enterprise User, or a third party or other User against an Indemnified Party.
This Agreement and any claim will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). With respect to any User located outside the United States, the User agrees that the California state courts of Santa Clara County (or, if there is federal jurisdiction, the United States District Court for the Northern District of California) will have jurisdiction and venue with respect to any claim arising out of or relating to this Agreement and consents to the personal jurisdiction and venue of those courts.
12.1 Definition. “Confidential Information” means any information in any form related to this Agreement and its purposes disclosed by a party (the “Discloser”), or disclosed on behalf of such party by its affiliates or representatives, to the other party (the “Recipient”), including without limitation any data, trade secrets, technology, technical data, source code, object code, software, inventions, know-how, information that Discloser considers and treats as confidential, or that a reasonable person would believe is confidential based on the nature of the information. Confidential Information does not include information that (i) at the time of disclosure, is available to the general public, (ii) becomes available to the general public through no fault of Recipient, (iii) is received by Recipient at any time from a third party without breach of a non-disclosure or confidentiality obligation to Discloser, (iv) is known to Recipient at the time of disclosure, as demonstrated by documentary evidence, (v) is developed independently by Recipient without access to any of Discloser’s Confidential Information, or (vi) is approved for disclosure by prior written permission of Disclosure or a corporate officer of Discloser, including without limitation pursuant to the terms of this Agreement.
12.2 Restrictions. Recipient shall use Discloser’s Confidential Information only for the purposes of this Agreement (the “Purpose”). Except as permitted in this Agreement, Recipient shall not disclose to any third party any of Discloser’s Confidential Information that is obtained directly or indirectly from Discloser or its affiliates or representatives. Recipient may only disclose the Confidential Information of Discloser to its representatives who are required to have it to further the Purpose. Recipient must inform any such representative of the confidential nature of the information and cause the representative to comply with the terms of this Agreement as if it were the Recipient, and Recipient will be liable for any breach of this Agreement by any such representative. Recipient will exercise the same degree of care toward the Confidential Information as Recipient exercises toward its own confidential information, but not less than reasonable care. Recipient agrees to take all reasonable steps to protect the secrecy of, and avoid disclosure or use of, the Discloser’s Confidential Information in order to prevent it from falling into the public domain or possession of unauthorized persons. Recipient agrees to immediately notify Discloser in writing of any use and/or disclosure in violation of this Agreement. Each party, however, may disclose Confidential Information of the other pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement. Recipient agrees and acknowledges that any such breach or threatened breach of these terms of confidentiality may cause irreparable injury to Discloser so that, in addition to any other remedies available, Discloser may seek injunctive relief against the threatened or actual breach.
Cloudthread will use commercially reasonable efforts to ensure the accessibility of the Cloudthread Website, Accounts, and Cloudthread Platform and to ensure that updates to the foregoing shall not degrade their functionality, capabilities, or features and that any such updates shall be backward compatible with the data structures, databases, and system architecture employed with previous versions. Cloudthread will, to the extent practicable, give Enterprise and Authorized Enterprise Users advance notice prior to initiating an unplanned maintenance operation, and such notice shall indicate the estimated timing of such unplanned maintenance operation.
14.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between Enterprise and Cloudthread relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between Enterprise and Cloudthread, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings are included for ease of reference only and have no binding effect.
14.2 Modifications, Waiver. No modification or amendment to this Agreement will be binding upon Cloudthread unless they are agreed in a written instrument signed by a duly authorized representative of Cloudthread or posted on the Cloudthread Website. Cloudthread’s failure to act with respect to a breach by Enterprise, Authorized Enterprise User or others does not waive Cloudthread’s right to act with respect to subsequent or similar breaches. Cloudthread does not guarantee it will take action against all breaches of this Agreement.
14.3 Assignability. Enterprise may not assign this Agreements, or any of its rights or obligations hereunder, without Cloudthread’s prior written consent in the form of a written instrument signed by a duly authorized representative of Cloudthread. Cloudthread may freely assign this Agreement without Enterprise’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the terms and conditions of this Agreement are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
14.4 Severability; Interpretation. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
14.5 Force Majeure. The parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to pandemics, disease, labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
14.6 Language. The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Cloudthread Services are controlled and operated from Cloudthread’s facilities in the United States.
14.7 Non-US Website Access. Cloudthread makes no representations that the Cloudthread Services are appropriate or available for use outside of the United States. Those who access or use the Cloudthread Services from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. User must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. User also warrants that it is not prohibited from receiving US origin products, including services or software. In order to access or use the Cloudthread Services, User must and hereby represents that it is not: (i) a citizen or resident of a geographic area in which access to or use of the Cloudthread Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (ii) a citizen or resident of, or located in, a geographic area that is subject to US or other sovereign country sanctions or embargoes; or (iii) an individual, or an individual employed by or associated with an entity, identified on the US Department of Commerce Denied Persons or Entity List, the US Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the US Department of State Debarred Parties List or otherwise ineligible to receive items subject to US export control laws and regulations or other economic sanction rules of any sovereign nation. User agrees that if its country of residence or other circumstances change such that the above representations are no longer accurate, that User will immediately cease using the Cloudthread Services and its license to use the Cloudthread Services will be immediately revoked.
14.8 Electronic Records. In connection with this Agreement, User may be entitled to receive, or Cloudthread may otherwise provide, certain records from Cloudthread or its Affiliates, such as contracts, notices, and communications, in writing. To facilitate User’s use of the Cloudthread Services, User gives permission to provide these records to User electronically instead of in paper form.
14.9 Audit. User agrees that, on Cloudthread’s request, it will certify in writing its compliance with the terms of this Agreement.