Terms of Service
As used in this Agreement, the following defined terms have the meanings indicated below.
“Affiliate(s)” as applied to any particular entity, means those entities, businesses, facilities, and enterprises, that are controlled by, controlling, or under common control with such entity, including, without limitation, all parent corporations and their respective subsidiaries and affiliates, partnerships, together with any and all entities and businesses to which any of the above described entities provide management services or purchasing services for Customer. “Control” as used herein means control through ownership of more than a majority of shares of stock eligible to vote for members of the Board of Directors, or control by contract.
“Billing Period” means the billing period established by the Profile or, in the absence of such a period, a calendar month.
“Order” means the online Service Request accompanying this Service Agreement, but only if Cloud9 notifies Customer that it has accepted the Service Request.
“Profile” means the information identified as such on the initial Service Request.
“Service” means Cloud9 Trader, a cloud-based telecommunications service Cloud9 markets to voice traders.
“Software” means the Cloud9-proprietary software each User requires to use the Service.
“Term” will have the meaning ascribed to it by Section 5.a of this Agreement.
“User” means a natural person employed by Customer as an employee or consultant and authorized by Customer to use the Service on Customer’s behalf.
2. Service; Related Terms
a. Service. Cloud9, subject to the terms and conditions of this Agreement and contingent on Customer’s payment of the applicable fees and charges, during the Term will provide Customer with access to and use of the Services via the Internet, in each case for the number of Users specified by the Order, and solely for internal business purposes of Customer and its Affiliates and not for resale. Customer may increase the number of Users to the Service at any time during the Term by making a request via email to email@example.com or to Customer’s Cloud9 sales person, which addition will become effective on Cloud9’s email acknowledgment. Customer may reduce the number of Users by submitting notice to Cloud9 at firstname.lastname@example.org to take effect at the end of the then-current Initial Term or Renewal Term.
b. Software License. Cloud9, on delivery of Software pursuant to an Order, grants to Customer a personal, non-exclusive, nontransferable, royalty-free right and license to use the Software in connection with the Services.
d. Changes to Agreement Terms. Cloud9, subject to the remainder of this Section 3.d, may provide Customer with notice proposing amendments to this Agreement from time to time during the Term. No such amendment will take effect unless and until Customer accepts the same in accordance with the instructions provided with Cloud9’s notice. If, however, Customer fails to accept any amendment within thirty (30) days of the date of Cloud9’s notice, Cloud9 by notice given any time prior to Customer’s acceptance may terminate this Agreement, provided, that within thirty (30) days of such termination Cloud9 will refund the subscription fees paid by Customer.
3. Customer Obligations
a. Profile. Customer will review and update the Profile from time to time during the Term.
b. User IDs; Passwords. Cloud9 will provide Customer with the log-in IDs, initial passwords and/or authorization keys (collectively, the “Log-Ins”) for the appropriate number of Users, which initial passwords each Users will be required to change the first time he or she logs into the Service. As a material inducement for Cloud9 to issue Customer the necessary Log-Ins and other materials as contemplated by this Section 3.a, Customer agrees that Customer will be solely responsible for safeguarding the Log-Ins and otherwise complying with the password and security procedures Cloud9 establishes from time to time. Customer will promptly request that Cloud9 reset passwords if Customer becomes aware of any information suggesting that the security of any Log-Ins or the security procedures have been compromised in any way.
c. Technical Environment. Customer will acquire, install and maintain throughout the Term the hardware, software, Internet access and systems meeting Cloud9’s specifications.
d. Voice Recording Preservation. Cloud9 may permanently delete any and all Customer voice recordings that are more than 30 days old. Customer, to the extent it desires to preserve voice recordings for a longer period, will download the recordings within the applicable 30-day period.
e. Data Preservation. Customer will create and preserve reasonable backup copies of its data and other business information and records, download such voice recordings as it chooses to preserve, perform accuracy checks on a routine basis, and take such other precautions as may reasonably be required to detect and guard against possible malfunctions, loss of data, or unauthorized access to Customer’s computer systems.
4. Fees and Expenses; Payment
a. Fees and Expenses. In consideration for the services provided hereunder, Customer will pay Cloud9 the subscription fees in advance, and any other fees specified by the Order in arrears. If Customer during the Term increases the maximum number of Users, Customer will pay in advance the applicable subscription fees prorated for the number of calendar days remaining in the then-current Billing Period. All payments will be made in U.S. Dollars.
b. Automatic Payment. Except as the parties otherwise agree in advance in writing, Customer hereby authorizes Cloud9 to charge all amounts accruing hereunder to any Customer credit card or debit card specified by the Profile. If for any reason the applicable credit or debit card issuer declines the charge, Customer agrees to provide payment via an alternative credit or debit card promptly on Cloud9’s request.
c. Taxes. All amounts described herein or in any Order are exclusive of any applicable sales taxes, use taxes, value added taxes, goods and services taxes, and similar taxes and levies, excluding without limitation taxes based on Cloud9’s net income, all of which will be the responsibility of Customer.
d. Late Payments. Any late payment by Customer under this section will be subject to Cloud9’s costs of collection (including reasonable legal fees and costs) and will bear interest at the rate of 1½% per month or part thereof or at the maximum rate permitted by law.
5. Term; Termination
a. Term. The initial term of this Agreement (the “Initial Term”) will commence on the date specified by Customer’s initial Order (the “Commencement Date”) and continue for the period specified by Customer’s initial Order. This term will automatically renew for consecutive terms of like duration (each, a “Renewal Term”) unless either party, at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, in which case this Agreement will expire at the end of the then current Initial Term or Renewal Term. If the initial Order does not specify a Commencement Date, the Commencement Date will be the date of the Order. If the initial Order does not specify an Initial Term, the Initial Term will be the one-month period following the Commencement Date. This Agreement refers to the Initial Term together with all Renewal Terms as the “Term.”
b. Termination. Either party may terminate this Agreement and all Orders by written notice if (i) the other party commits a material breach of this Agreement and fails to cure such breach within ten (10) days (in the case of nonpayment) or thirty (30) days (in the case of any other breach) after receipt of written notice of such breach or (ii) the other party will be or becomes insolvent. Either party may terminate this Agreement or any Order for convenience on 60 days’ prior notice. Cloud9 may terminate this Agreement pursuant to Section 2.c of this Agreement.
c. Effect of Termination or Expiration. Upon the expiration or termination of this Agreement by either party, all rights granted to Customer hereunder will terminate and Customer will cease using the Service, Software and Log-Ins. Neither the expiration nor termination of this Agreement will (i) affect the parties’ respective payment obligations accruing prior to the effective date of termination, (ii) give rise to an obligation by Cloud9 to refund any fees or charges previously paid, or (iii) affect the parties’ rights and obligations under Sections 6, 7, 8, 9, 10, 11, and 12 of this Agreement. Cloud9 will have no obligation to retain copies of any Customer data or materials following the effective date of expiration or termination.
6. Ownership and Proprietary Rights
Cloud9, as between Cloud9 and Customer, will own all right, title and interest in and to the Service, Software (including, without limitation, all updates and upgrades, improvements, or enhancements, and custom features and functions), and all community directories, and user directories, and call records obtained or created in performing the Services, and all patents, copyrights and other intellectual property rights therein. Customer will own all right, title and interest in and to the content of its communications and voice recordings and all other information Customer transmits or creates in the course of using the Service. Cloud9 will retain the exclusive right to reproduce, publish, patent, copyright, sell, license, transfer and otherwise make use of the Software and all such inventions, discoveries, improvements, enhancements and methodologies, without accounting or attribution to Customer. Customer will notify Cloud9 of the unauthorized possession, use, or knowledge of any item supplied under this Agreement and of other information made available to Customer under this Agreement, by any person or organization not authorized by this Agreement to have such possession, use or knowledge immediately upon its obtaining of any actual knowledge or notice thereof.
a. “Confidential Information” for the purposes of this Agreement will mean all tangible and intangible confidential and proprietary information and trade secrets (whether or not patentable or copyrightable), owned or possessed by either party (“Disclosing Party”) prior to the expiration or termination of this Agreement, including without limitation, each party’s and its affiliates’ and subsidiaries’ business/customer information, business practices, data processes, computer or software products or programs and all related documentation, cost and pricing data, know-how, marketing or business plans, analytical methods and procedures, hardware design, technology, financial information, or personnel or customer data, in each case that is disclosed to the other party (“Receiving Party”) or to which the Recipient gains access in connection with this Agreement.
b. Exclusions. The obligations to preserve the confidential nature of any of the Confidential Information described herein will not apply to information that (i) was previously known to the Receiving Party free of any obligation to keep it confidential; (ii) is or becomes generally known to the public or is obtainable from public sources other than as a result of an act or omission of the Receiving Party, (iii) is independently developed by or on behalf of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information or (iv) the Receiving Party is compelled by law, regulation or order to disclose the Confidential Information to a governmental agency or a court of law having proper jurisdiction. If disclosure is compelled pursuant to subsection (iv) of this section, the Receiving Party will give the Disclosing Party reasonable notice to enable such party to try to protect the confidentiality of the Confidential Information.
i. The Receiving Party agrees (i) to hold the Disclosing Party’s Confidential Information in strict confidence, and apply at least the standard of care used by the Receiving Party in protecting its own Confidential Information, and not to disclose such Confidential Information to any third party, and (ii) without the written permission of the Disclosing Party, not to use any Confidential Information of the Disclosing Party except as reasonably required to exercise its rights or perform its obligations under this Agreement.
ii. The Receiving Party agrees to limit disclosure of the Disclosing Party’s Confidential Information to those employees who need to know the same to accomplish the purposes of this Agreement, and who have executed a written agreement not to disclose the Disclosing Party’s Confidential Information or use it in any manner other than in furtherance of this Agreement.
d. Injunctive Relief. The parties acknowledge in the event of a breach or threatened breach of this Section 7, the non-breaching party will be entitled to seek from any court of competent jurisdiction preliminary and permanent injunctive relief, which remedy will be cumulative and in addition to any other rights and remedies to which the non-breaching party may be entitled, without necessity of posting bond or other security. Each party acknowledges that its breach of any of the covenants set forth in this Section 7 would result in immediate and irreparable injury to the other party.
8. Limited Warranties
i. General. Subject to the provisions of Section 8.a.ii of this Agreement, Cloud9 warrants that, as of the Effective Date and for a period of ninety (90) days thereafter, the Service will conform in all material respects to the applicable documentation. Cloud9’s sole liability, and Customer’s sole remedy, for breach of this warranty is to grant service credits in accordance with the service level agreement published <> (as Cloud9 may amend the same from time to time in accordance with Section 2.d).
ii. Beta, Trial and Free Subscriptions. Notwithstanding the provisions of Section 9.a(i), the provisions of this Section 8.a.ii apply in place of Section 8.a.i to the extent and for so long as Cloud9 makes the Software or Service available to Customer on a “beta test” or “trial” basis or otherwise without charge. In view of the evaluation nature of Service and Software, they are provided on an “as is”, “as available” basis, without warranty of any kind and without support or other services by Cloud9. CUSTOMER AGREES TO USE THE BETA TEST OR TRIAL SERVICE AND SOFTWARE STRICTLY FOR THE PURPOSES OF EVALUATION AND TESTING, AND THAT ITS RELIANCE ON THE AVAILABILITY OR ACCURACY OF THE BETA TEST, TRIAL OR FREE SERVICE OR SOFTWARE SHALL BE ENTIRELY AT ITS OWN RISK. CUSTOMER ACKNOWLEDGES THAT BETA AND TRIAL VERSIONS OF THE SERVICE OR SOFTWARE MAY INCLUDE A “TIME OUT” FEATURE RENDERING THEM INOPERATIVE ON A PREDETERMINED DATE OR AFTER A PREDETERMINED PERIOD OF USE.
b. Disclaimer. With the sole exception of the warranties expressly set forth in this Agreement and to the greatest extent allowed BY LAW, CLOUD9 DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND SOFTWARE, ANY DOCUMENTATION ASSOCIATED THEREWITH, AND ANY SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO THEIR CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. CLOUD9 HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR USE OR PURPOSE, ANY WARRANTY EXPRESS OR IMPLIED OF NONINFRINGEMENT, AND ANY REPRESENTATION OR WARRANTY THAT THE SERVICE OR SOFTWARE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION. EXCEPT AS SET FORTH HEREIN, CLOUD9 FURTHER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE NATURE AND QUALITY OF ANY OTHER PERFORMANCE BY CLOUD9 HEREUNDER. ANY WRITTEN OR ORAL REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT OR SIGNED BY AN OFFICER OF CLOUD9 SHALL NOT BE ENFORCEABLE BY CUSTOMER.
9. Limitation of Liability
a. UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE OTHER PARTY (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS OR DAMAGES TO BUSINESS REPUTATION), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT A PARTY WAS ADVISED SUCH DAMAGES MIGHT ARISE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
b. WITHOUT LIMITING THE PROVISIONS OF SECTION 9.a, IN NO EVENT SHALL CLOUD9 BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES, DIRECT OR OTHERWISE, IN EXCESS OF SIX (6) TIMES THE AVERAGE MONTHLY FEES CUSTOMER PAYS CLOUD9 PURSUANT TO THIS AGREEMENT DURING THE TERM. THIS LIMITATION IS CUMULATIVE; THE SUM OF MULTIPLE CLAIMS MAY NOT EXCEED THIS LIMIT. THE PROVISIONS OF THIS SECTION WILL APPLY IF LOSS, DAMAGE OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF CLOUD9, ITS AGENTS OR EMPLOYEES. CUSTOMER WAIVES ALL OTHER REMEDIES THAT MIGHT OTHERWISE BE AVAILABLE UNDER THE LAWS OF ANY JURISDICTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
10. US Government End Users
This section applies to all acquisitions of Software (collectively or individually for the purposes of this section, the “Government Acquired Software”) by or for the government of the United States of America (the “Federal Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Federal Government. By accepting delivery of the Government Acquired Software, the Federal Government hereby agrees that the Software qualifies as “commercial” computer software within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement will pertain to the Federal Government’s use and disclosure of the Government Acquired Software, and will supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the Federal Government’s needs or is inconsistent in any respect with United States law, the Federal Government agrees to return the Government Acquired Software unused. The following additional statement applies only to acquisitions by the Federal Government that are governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data – Noncommercial Items clause at DFARS 252.227-7013 (1995).”
11. Dispute Resolution
a. Informal Dispute Resolution. At the written request of either party, the parties will attempt to resolve any dispute arising under or relating to this Agreement through the informal means described in this Section 11.a. Each party will appoint a senior management representative. The representatives will furnish to each other all non-privileged information with respect to the dispute that the parties believe to be appropriate and germane. The representatives will use commercially reasonable efforts to resolve the dispute without the necessity of any formal proceeding. Formal proceedings for the resolution of the dispute may not be commenced until the earlier of: (i) the designated representatives conclude that resolution through continued negotiation does not appear likely; or (ii) thirty (30) days have passed since the initial request to negotiate the dispute was made; provided, however, that a party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief.
b. Governing Law. This Agreement will be governed by the laws of New York without regard to principles of conflict of laws. The parties hereto agree to submit all disputes related to this Agreement to the courts in New York County, New York, and each party consents to the jurisdiction of such courts and waives any objection it may have with respect to venue. The United Nations Convention on Contracts for the International Sale of Goods (UNCCISG) does not apply to this Agreement.
c. Limitation of Actions. No proceeding, regardless of form, arising out of or related to this Agreement may be brought by either party after the second anniversary of the accrual of the cause of action, except that (i) proceedings related to violation of a party’s proprietary rights or any duty to protect Confidential Information may be brought at any time within the applicable statute of limitations, (ii) either party may enforce any indemnity obligation of the other party under this Agreement at any time, and (iii) proceedings for non-payment may be brought up to two (2) years after the date the last payment was due.
12. Miscellaneous Provisions
a. No Third Party Beneficiaries. Nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement.
b. Force Majeure. Neither party will be responsible for delays or failure in performance resulting from acts beyond the control of such party, including without limitation, acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, epidemics, fire, communication line failures, problems inherent in the use of the internet and electronic communications (including without limitation network congestion, malware, denial of service attacks and other malicious activities), power surges or failures, earthquakes or other disasters.
c. with regard to its subject matter, and may not be modified or amended except by a writing signed by both parties hereto. Neither party will be subject to any provisions of any pre-printed purchase order, or acknowledgment, or other similar form.
d. Amendments; Waiver. Except as provided by Section 2.d of this Agreement, no amendment to this Agreement will be effective unless it is in writing signed by duly authorized representatives of both parties. Both parties agree that the terms of this Agreement may not in any way be explained or supplemented by a prior performance, trade usage, or course of dealing between the parties, or by any prior performance between the parties pursuant to this Agreement or otherwise. No waiver of any breach of any provision of this Agreement by either party or the failure of either party to insist on the exact performance of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions hereof, and no waiver will be effective unless made in writing.
e. Severability. If any of the provisions of this Agreement will be or become invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable the remaining provisions of this Agreement. Instead, this entire Agreement will be construed as though not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties will be construed and enforced accordingly.
f. Interpretation. This Agreement is being entered into among competent and experienced business persons and the terms and provisions of this Agreement will be construed fairly as to the parties hereto and not in favor of or against either party, regardless of which party was generally responsible for the preparation of this Agreement. Customer acknowledges that the limited warranties, disclaimers and limitations of liability contained in this Agreement set forth an allocation of risk reflected in the fees and payments due hereunder. The section headings used herein are for reference and convenience only, and will not enter into the interpretation hereof.
g. Notices. All notices hereunder will be sent by electronic mail to Cloud9 at email@example.com or to Customer at the email address provided in the Profile, or at such other address as the applicable party may designate by notice provided in accordance with this section.