THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on April 1, 2015. It is effective between You and Us as of the date of You accepting this Agreement.
1. FREE TRIAL
If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
2. OUR RESPONSIBILITIES
2.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. MondayEastern time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non-EXOCLOUD.ca Application, or denial of service attack.
2.2. Protection of Your Data
(a) You must provide all data for use in the Services, and We are not obliged to modify or add to the Your Data. You are solely responsible for the content and accuracy of Your Data.
(b) Your Data belongs to You, and We makes no claim to any right of ownership in it.
(c) We must keep Your Data confidential in accordance with Section 8 of this Agreement.
(d) We must use Your Data strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. However, We:
(i) may observe and report back to You on Your usage of the Services, and make recommendations for improved usage of the Services;
(ii) may identify trends and publish reports on its findings provided the reports include data aggregated from more than one customer site and do not identify You; and
(iii) must ensure that the data centre containing Your Data meets the following physical and electronic security requirements:
(I) single point of entry;
(II) main access monitored with additional access for emergency purposes only;
(III) surveillance cameras in facility;
(IV) access validation with identity check;
(V) access only to persons on We approved access list;
(VI) log-in validation;
(VII) creation of accounts only as verified by Us or our sub-contracted hosting provider;
(VIII) access to servers via encrypted means; and
(IX) servers running behind secure firewall.
(e) We must comply with the Personal Information Protection and Electronic Documents Act (Canada) in relation to any personal data received by or originating from You and Your clients.
(f) We must take reasonable technical and organizational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and, must deal with the information only in accordance with Your instructions, provided they are reasonable and lawful.
(g) We must back up Your Data once in each 24-hour period.
2.3 Our Personnel.
We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
2.4 Beta Services
From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. USE OF SERVICES AND CONTENT
Unless otherwise provided in the applicable Order Form, (a) Services and Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2 Usage Limits
Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
3.3 Your Responsibilities
The Services provided to You are non-exclusive, non-transferable and are for Your internal business use only. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation, our AUP and applicable laws and government regulations, and (e) comply with terms of service of Non-EXOCLOUD.ca Services with which You use Services or Content, and (f) comply with all applicable laws and regulationsand (g) back-up all of your User Content so that you can access and use it when needed. EXOCLOUD does not warrant that it backups-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content, and (h) provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
3.4 Usage Restrictions
You will not use this Site or the Services in a manner (as determined by EXOCLOUD in its sole and absolute discretion) that (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law), or ( (o) access EXOCLOUD Content or User Content through any technology or means other than through this Site itself, or as EXOCLOUD may designate, or (p) modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
3.5 Removal of Content and Non-EXOCLOUD.ca Services
If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-EXOCLOUD.ca Application hosted on a Service by You may violate Our External-Facing Services or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-EXOCLOUD.ca Application or modify the Non-EXOCLOUD.ca Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-EXOCLOUD.ca Application until the potential violation is resolved.
3.6 Monitoring of Content
EXOCLOUD generally does not pre-screen User Content (whether posted to a website hosted by EXOCLOUD or posted to this Site). However, EXOCLOUD reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. EXOCLOUD may remove any item of User Content (whether posted to a website hosted by EXOCLOUD or posted to this Site) and/or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, our AUP, or for otherwise violating this Agreement (as determined by EXOCLOUD in its sole and absolute discretion), at any time and without prior notice. EXOCLOUD may also terminate a User’s access to this Site or the Services found at this Site if EXOCLOUD has reason to believe the User is a repeat offender in accordance with the Section 12. If EXOCLOUD terminates your access to this Site or the Services found at this Site, EXOCLOUD may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
3.7 Liquidated Damages due to Spam
You agree that we may immediately terminate any Account which we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then you agree to pay us liquidated damages in the amount of $1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your Account. This amount is not a penalty but a estimate that the Parties agree is reasonable compensation.
3.8 Additional Reservation of Rights
EXOCLOUD expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services for any reason (as determined by EXOCLOUD in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by EXOCLOUD in offering or delivering any Services (including any domain name registration), (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry, (iii) to assist with our fraud and abuse detection and prevention efforts, (iv) to comply with court orders against you and/or your domain name or website and applicable local, state, national and international laws, rules and regulations, (v) to comply with requests of law enforcement, including subpoena requests, (vi) to comply with any dispute resolution process, (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of EXOCLOUD, its officers, directors, employees and agents, as well as EXOCLOUD’s affiliates, including, but not limited to, instances where you have sued or threatened to sue EXOCLOUD.
EXOCLOUD expressly reserves the right to review every Account for excessive space and bandwidth utilization, and to terminate or apply additional fees to those Accounts that exceed allowed levels.
EXOCLOUD expressly reserves the right to terminate, without notice to you, any and all Services where, in EXOCLOUD’s sole discretion, you are harassing or threatening EXOCLOUD and/or any of EXOCLOUD’s employees.
4. NON-EXOCLOUD.CA SERVICE FIRM
4.1. Acquisition of Non-EXOCLOUD.ca Products and Services
We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non- EXOCLOUD.ca Applications and implementation and other consulting services. Any acquisition by You of such non-EXOCLOUD.ca products or services, and any exchange of data between You and any non-EXOCLOUD.ca service firm, is solely between You and the applicable non-EXOCLOUD.ca service firm. We do not warrant or support Non- EXOCLOUD.ca Applications or other non-EXOCLOUD.ca products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.
4.2. Non-EXOCLOUD.ca Services and Your Data
If You install or enable a Non-EXOCLOUD.ca Application for use with a Service, You grant Us permission to allow the provider of that Non-EXOCLOUD.ca Application to access Your Data as required for the interoperation of that Non-EXOCLOUD.ca Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-EXOCLOUD.ca Application.
4.3. Integration with Non-EXOCLOUD.ca Services
The Services may contain features designed to interoperate with Non-EXOCLOUD.ca Services. To use such features, You may be required to obtain access to Non-EXOCLOUD.ca Services from their providers, and may be required to grant Us access to Your account(s) on the Non-EXOCLOUD.ca Services. If the provider of a Non-EXOCLOUD.ca Application ceases to make the Non- EXOCLOUD.ca Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
5. FEES, PAYMENT AND AUTOMATIC RENEWAL TERMS FOR PURCHASED SERVICES
5.1. Fees. You will pay all fees specified in Order Forms
Except as otherwise specified herein or in an Order Form,
(i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Service term.
5.2. Invoicing and Payment
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial Service term and any renewal Service term(s) as set forth in Section 12.2 (Term of Purchased Services). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3. Overdue Charges
If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future Service renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You.
5.5. Automatic Renewal
In order to ensure that you do not experience an interruption or loss of services, most services offer an automatic renewal option. The automatic renewal option automatically renews the applicable service for a renewal period equal in time to the most recent service period. For example, if your last service period is for one year, your renewal period will be for one year. While the details of the automatic renewal option vary from service to service, the services that offer an automatic renewal option treat it as the default setting. Therefore, unless you disable the automatic renewal option, EXOCLOUD will automatically renew the applicable service when it comes up for renewal and will take payment from the payment method you have on file with EXOCLOUD at EXOCLOUD’s then current rates, which you acknowledge and agree may be higher or lower than the rates for the original service period. In order to see the renewal settings applicable to you and your services, simply log into your account manager from this site and follow the steps found in our Site. You may enable or disable the automatic renewal option at any time. However, should you elect to disable the automatic renewal option and fail to manually renew your services before they expire, you may experience an interruption or loss of services, and EXOCLOUD shall not be liable to you or any third party regarding the same.
In addition, EXOCLOUD may participate in “recurring billing programs” or “account updater services” supported by your credit card provider (and ultimately dependent on your bank’s participation). If you are enrolled in an automatic renewal option and we are unable to successfully charge your existing payment method, your credit card provider (or your bank) may notify us of updates to your credit card number and/or expiration date, or they may automatically charge your new credit card on our behalf without notification to us. In accordance with recurring billing program requirements, in the event that we are notified of an update to your credit card number and/or expiration date, EXOCLOUD will automatically update your payment profile on your behalf. EXOCLOUD makes no guarantees that we will request or receive updated credit card information. You acknowledge and agree that it is your sole responsibility to modify and maintain your account settings, including but not limited to (i) setting your renewal options and (ii) ensuring your associated payment method(s) are current and valid. Further, you acknowledge and agree that your failure to do so, may result in the interruption or loss of services, and EXOCLOUD shall not be liable to you or any third party regarding the same.
5.6. Payment Disputes
We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.8. Future Functionality
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights
Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. License by Us to Use Content
We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
6.3. License by You to Host Your Data and Applications
You grant Us and Our Affiliates a worldwide, limited- term license to host, copy, transmit and display Your Data, and any Non-EXOCLOUD.ca Services and program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-EXOCLOUD.ca Application or program code.
6.4. License by You to Use Feedback
You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
7.1. Definition of Confidential Information
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
7.3. Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties
We warrant that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a Service term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 5.3 (Integration with Non-EXOCLOUD.ca Services), We will not materially decrease the functionality of the Purchased Services during a Service term, and (e) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us
We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, legal fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 9.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your Services for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated Services. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-EXOCLOUD.ca Application or Your breach of this Agreement.
9.2. Indemnification by You
You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights right of publicity or privacy (including defamation) or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy
This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability
NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES, SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SERVICES. EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT ORDER FORM SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY YOU TO US UNDER SUCH RELEVANT ORDER FORM DURING THE 12 MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN YOU AND US AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO US.
11. TERM AND TERMINATION
11.1 Term of Agreement
This Agreement commences on the date You first accept it and continues until all Services hereunder have expired or have been terminated.
11.2. Term of Purchased Services
The term of each Service shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, Services will automatically renew for additional periods equal to the expiring Service term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Service term. The per- unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination
If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Your Data Portability and Deletion
Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make the Your Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
11.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Portability and Deletion of Your Data,” “Who You Are Contracting With, Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration if this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
Notices must be in writing and will be considered given when actually received. Notices to Exocloud must be sent to the attention of our General Counsel at 6 Lansing Square, Unit 212, Toronto ON Canada M2J 1M5. Notices to you must be sent to its address indicated set out in the Order Form. Each This Agreement will be governed by the laws of Canada. The parties consent to the exercise of exclusive jurisdiction by the provincial or federal courts in the Province of Ontario for any claim relating to this Agreement.
12.2. Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
12.3 No Agency
For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other salesforce.com company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
13. GENERAL PROVISIONS
13.1. Export Compliance
The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of Canada and other jurisdictions. Each party represents that it is not named on any Canadian or U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any Canadian or U.S. export law or regulation.
We may list You as a You and use Your logo on Our website, on publicly available You lists, and in media releases.
13.3 Entire Agreement and Order of Precedence
This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all Services. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5. Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.6. Third-Party Beneficiaries
Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
13.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Service Agreement.
“Beta Services” means Our Services that are not generally available to Yous.
“Content” means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means Our online user guides, documentations, and help and training materials, as updated from time to time, accessible via help.EXOCLOUD.ca or login to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, for example, the AppExchange located at http://www.exocloud.ca and any successor websites.
“Non-EXOCLOUD.ca Services” means a Web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as EXOCLOUD Labs or by a similar designation.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free trial or an Order Form and made available online by Us, including associated offline components, as described in the Documentation. “Services” exclude Content and Non-EXOCLOUD.ca Services.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the Amplus Innovations Inc. carrying on business as EXOCLOUD.
“You” or “Client” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non-EXOCLOUD.ca Services.
Products and services
1. EXOCLOUD is a top-notch private cloud based solution that helps businesses improve I.T efficiency, flexibility, security and scalability without high hardware, software and maintenance costs. EXOCLOUD provides server protection and multiple recovery options, flexible deployment and minimize business downtime. It is a cost effective solution for businesses to adopt an off-site backup and disaster recovery to the cloud.
2. EXOCLOUD Virtual Desktop is software-defined computer system. Virtual machines operate based on the computer architecture and functions of a real computer, and their implementations may involve specialized hardware, and Window XP/7/8/8.1 as operating system.
3. EXOCLOUD Virtual Server is a server (computer and various server programs) at someone else’s location that is shared by multiple users of the same workgroup or domain so that each user can use and administer it as though they had complete control of the server. It is available in Windows 2003/2008/2008R2/2012/2012R2 or Linux as operating system
4. EXOCLOUD Microsoft Exchange System Hosting is a shared Microsoft Exchange Server with calendaring software, a mail server and contact manager developed by Microsoft. The EXOCLOUD MS Exchange System allows users to organize individual activities such as email, appointment schedule, contact, task lists and notes, and to collaborate with other members in a team to share contacts, share calendar, share resources and schedule events.
5. EXOCLOUD Secured File Sharing Portal provides secured and managed cloud-based file sharing portal. It allows users to secure and share files online. Clients can view individual or shared documents on any device from anywhere, anytime. Our users will be able to quickly and easily share documents or folders inside or outside of the company. Our portal allows users to upload files on the cloud storage and share documents according to user-defined access privileges on the files and folders.
6. EXOCLOUD Online Backup & Disaster Recovery (DRaaS) allows you to back up your files and data from local to our cloud. It is a disaster recovery service that captures snapshot of a server, operation system, data, applications and configurations and back up the images to EXOCLOUD using advanced backup software agent and server, massive cloud storage and recovery ability to secure your critical data in multiple locations and recovery options.
7. EXOCLOUD Dedicated Virtual MS Server is an EXOCLOUD Virtual Server with Microsoft Windows Server operating system and Microsoft Windows Server application (such as Exchange Server, SQL Server, LYNC Server etc.) designed to be more efficiently handle corporate networking, internet/intranet hosting, databases, enterprise-scale messaging and similar functions. The EXOCLOUD Dedicated Virtual MS Server is dedicated for the use of the subscriber only.
Revised: April 1, 2015. Copyright © 2015 EXOCLOUD, All Rights Reserved.