CloudCodes Customer Agreement
IMPORTANT: BY SIGNING BELOW AND/OR ACCESSING ANY PART OF THE CLOUDCODES (THE “SERVICE”) YOU ARE REPRESENTING THAT (A) IF YOU ARE AN INDIVIDUAL, YOU ARE EITHER OVER THE AGE OF 18 OR HAVE OBTAINED YOUR PARENT’S CONSENT TO REGISTER FOR THE SERVICE, OR (B) IF YOU ARE THE REPRESENTATIVE OF A COMPANY, YOU HAVE THE REQUISITE CORPORATE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE COMPANY AND NO OTHER CONSENT, APPROVAL, OR AUTHORITY IS NECESSARY OR REQUIRED TO BIND THE COMPANY TO ALL OF THE TERMS AND CONDITIONS HEREOF. YOU ARE AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT (THE “SERVICE AGREEMENT” OR “THIS AGREEMENT”), AND CONSENT, EITHER ON YOUR OWN BEHALF OR ON BEHALF OF THE COMPANY THAT YOU REPRESENT, TO BE BOUND BY AND BECOME A PARTY TO THIS SERVICE AGREEMENT. IF YOU ARE DEEMED TO HAVE ORDERED THE SERVICE, THE ACCEPTANCE OF CLOUDCODES IS EXPRESSLY CONDITIONED UPON ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY CLOUDCODES, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
Terms of Service: This CloudCodes Service Agreement (the Agreement) is entered into by and between CloudCodes Software Pvt Ltd, a company, with Development office at 404-P1, Pentagon Tower, Magarpatta CyberCity, Hadapsar, Pune – 411028, Maharashtra, India (CloudCodes) [Registered Address] and the person or entity agreeing to these terms (Customer, “You”).
1. Effective Date
This Agreement is effective as of 1st September 2021(the Effective Date)
2. Legal Authority of Customer
If You are accepting on behalf of Your employer or another entity, You represent and warrant that: (i) You have full legal authority to bind Your employer, or the applicable entity, to these terms and conditions; (ii) You have read and understand this Agreement; and (iii) You agree, on behalf of the party that You represent, to this Agreement. If You do not have the legal authority to bind Your employer or the applicable entity, please do not sign below. This Agreement governs Customer’s access to and use of the Service.
3. Consent for Internet-Based Services
The Service is accessed over the internet and may connect to and use CloudCodes, Cloud Service Provider’s computer systems over the Internet, including those described in the following paragraphs, in order to perform various functions of the Service and to make the Services available to you. In some cases You will not receive a notice when accessing other systems. CloudCodes may change or cancel the use of other systems used by the Service at any time with/without a notice.
- Computer Information: The Service uses Internet protocols, which send to the appropriate systems computer information, such as Your Internet protocol address, the type of operating system, browser and name and version of the software You are using, and the language code of the device where You installed the software. CloudCodes uses this information to make the Services available to You and to improve our software and services.
- Web Content Features: Features in the software can retrieve related content from CloudCodes and provide it to You. Examples of these features are images, documentation, and online assistance.
- Google App Engine: The Service uses the Google App Engine platform hosted in US and EU region both to operate and to integrate with the Customer’s cloud application environment
- Cloud Application APIs: The Service makes use of the Cloud Application APIs such Google, Office 365 etc-etc to interact with Customer Data hosted by Cloud Applications provider
- Customer Data: Certain Customer Data is logged and reported in the Google App Engine in the customers account in an encrypted format. This information includes but is not limited to: transactions performed details submitted by Customer when using the Service.
- Usage Reporting: Statistical reports regarding transactions performed by Customer in its use of the Service may be collected by the Service and CloudCodes. These reports may include identifying customer information.
- Web Services: The Service may make use of Web Services hosted and running on CloudCodes or other parties’ servers where necessary to perform functions of the Service
- Digital Certificates: The software may use digital certificates. These digital certificates confirm the identity of Internet user’s standard encrypted information. The software retrieves certificates and updates certificate revocation lists.
- Use of Information: CloudCodes may use the Computer Information to improve our software and services and confirm that this information will never be shared with any other party or any other services.
If You give feedback about the product (software) to CloudCodes, You give to CloudCodes, without charge, the right to use, share and commercialize Your feedback in any way and for any purpose. You also give to third parties, without charge, any patent rights needed for their products, technologies and services to use or interface with any specific parts of a CloudCodes software or service that includes the feedback. You will not give feedback that is subject to a license that requires CloudCodes to license its software or documentation to third parties because we include Your feedback in them. These rights survive this agreement.
5. Scope of License
The software is licensed as a service to the customer on a subscription model, and is not sold as a perpetual license. This agreement only gives Confidential 6 You some rights to use the software. CloudCodes reserves all other rights. Unless applicable law gives You more rights despite this limitation, You may use the software only as expressly permitted in this agreement. In doing so, You must comply with any technical limitations in the software that only allow You to use it in certain ways. You may not, without CloudCodes’ prior written approval: disclose the results of any benchmark tests of the Software or Service to any third party; work around any technical limitations in the software; reverse engineer, decompile or disassemble, translate, alter, disassemble or create derivative works of the Software or attempt to do any of the foregoing, except and only to the extent that applicable law expressly permits, despite this limitation; make more copies of the software than specified in this Agreement or allowed by applicable law, despite this limitation; use or export the Software in any manner or for any purpose that violates this Agreement, or violates any law or regulation, any third party or CloudCodes right, including but not limited to intellectual property rights, privacy rights, personal property rights or export laws publish the software for others to copy; sell, rent, lease, distribute, assign, license or transfer the Software to a third party or copy all or any portion of the Software or any computer code made available as part of the Software or Service; transfer the software or this agreement to any third party; interfere with or disrupt the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Software); or use the software for commercial software hosting services. remove any proprietary notices or labels on the Software or placed by the Service
6. Nonexclusive License
CloudCodes hereby grants You a limited, revocable, non-exclusive, nonsublicensable license to use the Service solely as necessary to use the Service for one or more domains that You own and control. Your license of, Confidential 7 use of and access to the Software and the Service (which may include, without limitation, the Software, documentation and reports) is conditioned upon Your compliance with the terms and conditions of the Agreement, including the following: You will use the Software and Service solely for Your own internal use, and will not make the Software and Service available for time-sharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in Your use of and access to the Software and Service. This license will terminate immediately if You fail to comply with the terms of this Agreement. Upon such termination, You must destroy all originals and copies of the Software in Your possession and so certify in writing to CloudCodes within three (3) business days of termination and cease any further use of the Service without the express written consent of CloudCodes
7. Service - General
CloudCodes will provide the Service to Customer during the Term of this Agreement. Customers admins shall use this service if they have admin rights to install and administer this Cloud Application as some of the products and services are for Admins usage only. Certain functionality in the Service may be made available to Customer for additional fees or under different terms, as noted in on the Order Page.
8. Service - Facility
The Service is hosted on the Google Cloud Platform, and available for purchase through the CloudCodes website or through its appointed resellers. All the security and privacy of the information and data sitting in Google Cloud is subject to Google’s Privacy and Security policy including the availability of the service. All facilities used to store and process Confidential 8 Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Google stores and processes its own information of a similar type.
10. Customer Obligations
11. Requesting Account; Service Term
Initial Term; Prorated Terms: The initial term for Service purchased prior to the Service Commencement Date will be defined in the ordering document. CloudCodes may revise its rates with at least 30 days prior written notice to Customer, including by email, effective for the following term. Automatic Renewal: The default setting for the Service is auto renewal at the end of a subscription term. If the automatic renewal setting is enabled, after the initial term each Account will automatically renew on each anniversary of the Service Commencement Date for an additional term corresponding to the initial purchase term. Customer will pay CloudCodes the then-current Fees for each renewed Account unless Customer and Confidential 11 CloudCodes mutually agreed otherwise. Disabling Automatic Renewal:Customers may disable the automatic renewal option by notifying its designated CloudCodes Account Manager or via the Admin Console, when this feature is available in the Service. If Customer disables this automatic renewal setting, Customer’s Account will terminate upon the conclusion of the then current term. Account: Customer may request changes to its Account by: (i) notifying its designated CloudCodes Account Manager; (ii) ordering via the Admin Console, when this feature is available in the Service.
Payment: All payments due are in US Dollars or Indian Rupees. Credit Card Orders: Fees for Credit Card orders are due immediately upon order placement. CloudCodes will bill the credit card provided via the Order Page for all applicable Fees when due. If credit card authorizations or charge attempts are declined, CloudCodes may immediately disable or cancel the Service, in its sole discretion. Invoice Orders: Fees for orders where CloudCodes issues an invoice are due upon Customer’s receipt of the invoice, and are considered delinquent thirty days after the date of the applicable invoice. Delinquent Payments: Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by CloudCodes in collecting delinquent amounts. Taxes: Customer is responsible for any Taxes, and Customer will pay CloudCodes for the Service without any reduction for such amounts. If CloudCodes is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides CloudCodes with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments, Confidential 12 Customer must provide an official tax receipt or other appropriate documentation to support such payments. Payment Processor Account: In most cases, purchases will be performed through the Google Apps Marketplace or the Android Market, which require You to have and to use the Market’s Payment Processor to collect payments.
13. Technical Support Service
CloudCodes may sell maintenance, technical or other support for the Service but is not obligated to provide such service as a provision of this Agreement. CloudCodes expressly disclaims any obligation to provide updates, upgrades, bug fixes, patches or any similar service, and You acknowledge that CloudCodes has no express or implied obligation to provide the same. CloudCodes may provide bug fixes in the future for bugs or other errors logged in to their 24/7 web based ticketing system found at http://support.cloudcodes.com. To the extent that You seek any support for or customization of the Service, You may contact CloudCodes to seek a cost estimate for Your request at email@example.com.
Of the Service by CloudCodes If: (i) Customer materially violates this Agreement; (ii) CloudCodes provides Customer with commercially reasonable notice of this violation (which may be by email to the Notification Email Address); (iii) CloudCodes uses commercially reasonable efforts to discuss and resolve the violation with Customer; and (iv) despite the foregoing, the violation is not resolved to CloudCodes’ reasonable satisfaction, then CloudCodes reserves the right to Suspend access to the Service, or to particular components of the Service. If, after all of the foregoing, Customer still has not cured a violation within thirty days of the Confidential 13 commencement of a suspension under this Section, then CloudCodes may immediately terminate the Service for cause. Emergency Security Issues Notwithstanding the foregoing, if there is an Emergency Security Issue, then CloudCodes may automatically Suspend the offending use. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or terminate the Emergency Security Issue. If CloudCodes Suspends a Customer for any reason without prior notice, at Customer’s request, CloudCodes will provide Customer the reason for the Suspension as soon as is reasonably possible.
15. Confidential Information
Obligations: Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section. Exceptions: Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party. Required Disclosure: Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure. Third Party Requests: Customer is responsible for responding to Third Party Requests. CloudCodes will, unless Confidential 14 it is prohibited by law or by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request in a manner permitted by law; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools reasonably required for Customer to respond to the Third Party Request. Customer will first use the Service to access the required information, and will contact CloudCodes only if it is insufficient for Customer’s needs.
16. Intellectual Property Rights
Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and CloudCodes owns all Intellectual Property Rights in the Service.
CloudCodes may (i) include Customer’s name and licensed user count in presentations, marketing materials, and customer lists (which includes, without limitation, customer lists posted on CloudCodes’ web sites and Customer’s implementation of the Service) and (ii) issue a public announcement regarding the existence or content of this Agreement. Upon Customer’s request, CloudCodes will furnish Customer with a sample of such usage or announcement. Other than this, neither party may make any public statement regarding the relationship contemplated by this Agreement without the other party’s prior written consent.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. CLOUDCODES MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE. THE SERVICE IS NEITHER DESIGNED NOR INTENDED FOR HIGH RISK ACTIVITIES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE.
By Customer: Customer will indemnify, defend, and hold harmless CloudCodes from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customers, or its Users’, use of the Service in violation of the Agreement. By CloudCodes: CloudCodes will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that Confidential 17 CloudCodes’ technology used to provide the Service infringes or misappropriate any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall CloudCodes have any obligations or liability under this Section arising from: (i) use of any Service in a modified form or in combination with materials not furnished by CloudCodes, and (ii) any content, information or data provided by Customer, Users or other third parties.
21. Possible Infringement
Repair, Replace, or Modify: If CloudCodes reasonably believes the Service infringes upon a third party’s Intellectual Property Rights, then CloudCodes will: (a) obtain the right for Customer, at CloudCodes’ expense, to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that they no longer infringe. Suspension or Termination: If CloudCodes does not believe the foregoing options are commercially reasonable, then CloudCodes may suspend or terminate Customer’s use of the impacted Service. If CloudCodes terminates the impacted Service, then CloudCodes will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of the Service. General: The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
22. Limitation of Liability
Limitation on Indirect Liability: NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. CloudCodes shall not be liable for any loss, direct or indirect, arising out of, in connection with, or relating to the usage of a previously supported version of the Software or the Service, if an Upgrade of the Software or the Service has already been provided to the Customer. For the sake of clarity, no claim arising out of a version of Software or Service will survive upon an Upgrade of the Software or Service being made available to the Customer. For the purposes of this clause, the term “Upgrade” means a new version of the Software which contains enhanced functionality.
Limitation on Amount of Liability: NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO CLOUDCODES DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. Exceptions to Limitations: These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
Notices: All notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal Confidential 19 courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email. Assignment: No assignment or transfer by any party of its rights, duties or obligations under this Agreement shall be made except with the prior written consent of the other party; provided that CloudCodes, without the obligation to obtain the prior written consent of the Customer, shall be entitled to assign this Agreement or all or any part of its rights, duties or obligations hereunder to any third party in connection with the sale of all or any substantial portion of the assets of CloudCodes. Any other attempt to transfer or assign is void. Force Majeure: Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control. No Waiver: Failure to enforce any provision of this Agreement will not constitute a waiver. Severability: If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. No Agency: The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture. No Third-Party Beneficiaries: There are no third-party beneficiaries to this Agreement. Equitable Relief: Nothing in this Agreement will limit either party’s ability to seek equitable relief. Governing Law: This Agreement shall be governed by the laws of the Republic of India without regard to conflicts of laws. The parties hereby agree on behalf of themselves and any person claiming by or through them that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate courts located in Pune, India. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN PUNE, INDIA. Amendments: Any amendment must be in writing and expressly state that it is amending this Agreement. Survival: Those provisions that by their nature should survive Confidential 20 termination of this Agreement, will survive termination of this Agreement. Entire Agreement: This Agreement and all documents referenced herein are the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement, as they may be amended from time to time, are hereby incorporated by this reference. Interpretation of Conflicting Terms: If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms located at any URL. Counterparts: The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
Account Manager means the CloudCodes representative working with Customer regarding Customer’s purchase of the Service.
Admin Account means the Cloud Application administrative account provided to Customer by Cloud Service Providers and used by the Service for the purpose of administering the Customer’s Cloud Application domain. This account and associated password are used by the Service to perform a Federated Login to Customer’s Cloud Application domain using the Cloud Application API SAML, OpenID and OAuth authentication techniques for achieving Universal Single Sign-on to Customer’s Cloud Application domain.
Admin Console means the online tool provided by CloudCodes to Customer for use in reporting and certain other administration functions. Administrator means the Customer-designated technical personnel who administer the Service on Customer’s behalf.
Customer Data is Customer’s Confidential Information. Customer Data means data, including email and contact information, provided, generated, displayed or managed via the Service by Customer.
Emergency Security Issue means either: (a) Customer’s use of the Service in violation of the Acceptable Use Policy, which could disrupt: (i) the Service; (ii) others use of the Service; or (iii) the Google network or servers used to provide the Service; or (b) unauthorized third party access to the Service.
Fees means the amounts invoiced to Customer by CloudCodes for the Service as described in an Order Page. Help Center means the CloudCodes help center accessible at http://support.cloudcodes.com/support/home or other such URL as may be provided by CloudCodes
High Risk Activities means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the failure of the Service could lead to death, personal injury, or environmental damage.
Intellectual Property Rights means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights. Notification Email Address means the email address designated by Customer to receive email notifications from CloudCodes. Customer may change this email address by contacting their CloudCodes Account Manager until such time as this feature is available through the Admin Console.
Service Commencement Date is the date upon which CloudCodes makes the Service available to Customer, and will be within one week of Confidential 22 CloudCodes’ receipt of the completed Order Page, unless otherwise agreed by the parties.
Service Pages mean the web pages displaying the Service to Users. Suspend means the immediate disabling of access to the Service, or components of the Service, as applicable, to prevent further use of the Service.
Taxes means any duties, customs fees, or taxes (other than CloudCodes income tax) associated with the sale of the Service, including any related penalties or interest. Term means the term of the Agreement, which will begin upon the Effective Date and continue for as long as Customer is receiving Service from CloudCodes, unless terminated earlier pursuant to the Agreement.
Third Party Request means a request from a third party for records relating to a Customer’s use of the Service. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the Customer permitting the disclosure.
URL Terms means the Service definitions, and other terms with which Customer must comply, which are located at a URL and referenced in this Agreement.
Users mean the individuals that the Customer permits to use the Service