Service Agreement
By clicking the “I ACCEPT” button or procuring the migration service or otherwise accepting this Service Agreement (the “Agreement”), you (referred to as “You” or the “Customer”) agree to follow and be bound by the terms and conditions of this Agreement with WANCLOUDS, INC., (the “Company”). Company and Customer acknowledge and agree that this Agreement shall be effective immediately upon the date the service is procured or that Customer clicks the “I ACCEPT” button (the “Effective Date”).
1. SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer diagnosing issues with any component of the Service Package including the use of our products in accordance with the Service Level Terms and with reasonable technical support in accordance with the terms set forth hereto. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. The company reserves the right to refuse registration of, or cancel passwords that it deems inappropriate.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”), (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services), (iii) use the Services or any Software for timesharing, resale or service bureau purposes or otherwise for the benefit of a third, (iv) or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s terms of use, or other standard published policies then in effect or the documentation or instructions provided to Customer (the “Policy”) and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services and the Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes without limitation non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.3.2 Customer shall own all rights, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Customer hereby grants to Company a limited, royalty-free, non-exclusive license to collect, analyze and use the Customer Data: (i) as necessary for Company to provide the Services in accordance with this Agreement during the Term and (ii) solely in an anonymized and aggregate form, to market, improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, provided that all Customer Data shall at all times be subject to the confidentiality obligations of Section 3.1.
3.3 Company shall own and retain all right, title and interest in and to: (i) the Services and Software, all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (iii) all intellectual property rights related to any of the foregoing. Company and its licensors reserve all rights and licenses in and to the Services and Software not expressly granted to Customer under this Agreement.
3.4 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.5 If Customer provides suggestions, feedback or other input to Company concerning the functionality and performance of the Services or the Software, including identifying potential errors and improvements (“Feedback”), then subject to the terms and conditions of this Agreement, Customer hereby grants Company and its affiliates a limited, worldwide, non-exclusive, royalty-free, fully paid-up right and license to all Feedback and all intellectual property rights therein (except patent rights and trademark and branding rights) to use, perform, display, reproduce, create derivative works, make, have made, use, sell (directly or indirectly), offer for sale or disposition, import, dispose and otherwise exploit such Feedback for any purpose. The foregoing license shall be fully transferable and sublicensable.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees mentioned in the Appendix or communicated through a SOW for the Services in accordance with the terms therein (the “Fees”). The Fees for the yearly subscription period shall be paid on the Effective Date. The Fees for any monthly subscription periods shall be paid to the Company on the first day of each subsequent subscription period. The amount of the Fees does not include any applicable taxes. Customer is responsible for any and all applicable taxes. Customer shall provide a valid PO or credit card or other acceptable method of payment to the Company and shall take all necessary steps to authorize automatic payment of the Fees. By agreeing to this Agreement, Customer authorizes the Company to automatically charge said method of payment for all subscription periods during the term of this Agreement. Any additional payment terms between Company and Customer shall be agreed to in writing and set forth in an invoice, billing agreement, or other written document.5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the initial service term of one months or one year as specified during the time of subscription (“Initial Service Term”), and can be renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”) with mutual approval by both parties, unless either party requests termination prior to the end of the then-current term. If Customer requests termination under this Section, Customer is not entitled to any refund of Fees for the Services; provided Customer will continue to have access to the Service until the expiration of the subscription period for which it has provided payment.5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Following the termination of this Agreement, Customer will immediately discontinue use of the Services and Software, and destroy any copies of such Services or Software. Customer agrees to provide written confirmation of its compliance with the foregoing requirement upon Company’s written request.
5.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.