Service Terms & Agreement
Last Updated - Sep 1st, 2018
These Service Terms and Agreement, together with the Subscription (as defined below), are an agreement (collectively, this “Agreement”) between cloudradar GmbH (“CloudRadar”), and the individual or company identified in the Subscription (“Customer”).
BY SIGNING UP TO ACCESS THE CLOUDRADAR SERVICE YOU ARE REPRESENTING THAT YOU ARE OVER THE AGE OF 18, HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND ARE CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, AS APPLICABLE, TO BE BOUND BY THIS AGREEMENT.
In consideration of the mutual promises contained in this Agreement, CloudRadar and Customer agree as
follows:
1. Description.
CloudRadar runs a monitoring service intended for IT, operations
and development teams which includes the features and functionality described at the CloudRadar.io website
(the “Site”) on the Subscription Date, as such features and functionality may change from time to time as
provided in Section 6 (the “Service”). The Service is operated on CloudRadar’s hosting servers or those of
its provider(s) to enable Customer and those of its employees who have been authorized by Customer
(“Authorized Users”) to access and use the Service via the web. (If Customer is an individual subscribing
for personal use, the term Authorized User shall refer to him or her.)
2. Subscription and Subscription Date.
As used in this Agreement, the term
“Subscription” means
a) an online order for the Service completed and submitted by Customer through
the Site and accepted by CloudRadar,
b) a written Customer purchase order for the Service accepted
by CloudRadar,
c) another written agreement for the Service executed by both CloudRadar and
Customer.
“Subscription Date” refers to, as applicable,
d) the date Customer submits its online
order through the Site,
e) the date Customer issues its written purchase order,
f) the
date Customer issues its written purchase order,
g) the date both Customer and CloudRadar have
executed a written agreement, or
h) the date that an authorized CloudRadar reseller has commenced
the Services on behalf of a Customer.
3. Term.
a) This Agreement shall commence on the Subscription Date
and, unless terminated early in accordance with Section 7 or 14 below, continue for
i) the
number of months or year(s) specified in the Subscription as measured from the first day of the first
calendar month after the Subscription Date, or
ii) if no period is specified in the Subscription,
the end of the calendar month following the calendar month in which Customer gives notice of termination
pursuant to this Section 3 (the “Initial Period”).
This Agreement shall automatically renew for
successive renewal periods of the same duration of the Initial Period (each, a “Renewal Period”) unless one
party gives notice of termination or non-renewal pursuant to this Section 3 (the Initial Period, and all
such Renewal Periods, collectively, the “Service Period”).
b) If Customer is using the Service
under a Pro, Enterprise or other fee-based pricing plan (each, a “Paying Plan”), this Agreement shall
automatically renew for successive renewal periods of the same duration of the Initial Period unless one
party gives notice to the other of its intent not to renew at least 30 days prior to the expiration of the
then pending term. If Customer is using the Service under a Free or non-paying Trial plan (each, a “Free
Plan”), this Agreement will be deemed month-to-month and either party shall be free to not renew, or to
terminate, this Agreement immediately upon notice to the other. Functionality of Free Plans may change at
any time including the complete cancelation of Free Plans.
c) Notwithstanding the foregoing, if
Customer has purchased the Services through an authorized CloudRadar reseller, the terms of Customer’s
subscription with such reseller shall control with respect to the subscription term; provided, however, that
if CloudRadar and such applicable reseller terminate their agreement, the Services will immediately
terminate unless Customer enters into a new subscription with CloudRadar or another authorized reseller.
4.
Pricing and Fees.
a) Unless the parties agree otherwise in a separately
executed written agreement for an Enterprise or other customized Paying Plan, fees for the Service (“Fees”)
shall be based on the pricing published at the Site as of the Subscription Date for the Initial Period. All
or certain of the Fees may be calculated on the basis of the number of hosts or checks. For purposes of that
determination and this Agreement, the term “host” refers to a concurrently monitored host/server, as
determined by CloudRadar on a calendar month basis.
b) Customer must be authorized to use the
payment method Customer enters when creating a billing account. Customer authorizes CloudRadar to charge
Customer for the Service using that payment method and for any paid feature of the Service that Customer
chooses to sign up for or use during the Service Period of this Agreement. As indicated in a Subscription,
CloudRadar may bill:
i) in advance,
ii) at the time of purchase,
iii) shortly
after purchase, or
iv) on a recurring time- or usage-based basis.
c) Customer must keep all
information in Customer’s billing account current. Customer can access and modify Customer’s billing account
information through the Site and may change its payment method at any time. If Customer notifies CloudRadar
to stop using Customer’s previously designated payment method and fails to designate an alternative,
CloudRadar may immediately suspend use and access to the Service. Any notice from Customer changing its
billing account will not affect charges CloudRadar submits to Customer’s billing account before CloudRadar
reasonably could act on Customer’s request.
d) CloudRadar will notify Customer in advance, either
through the Service or by email pursuant to Section 18(b), if CloudRadar changes Fees that would apply to
Customer in a Renewal Period. If Customer does not agree to these changes, Customer must give notice of its
intent to not renew the Agreement for such Renewal Period and stop using the Service on or before the
effective date of termination. If Customer fails to give notice of non-renewal, Customer’s payment
information on file will be charged at the new Fees thereafter.
e) Payments for all accounts
registered to pay via credit card are due the date the invoice is posted on Customer’s account. Payments for
all accounts registered to pay via check, wire transfer or Automated Clearing House (ACH) are due within 30
days of the invoice date unless otherwise agreed-to by the parties in writing. If any payment is not made
when due, CloudRadar may immediately suspend use and access to the Service.
f) All Customer
prepayments, if any, for the Service (monthly, yearly or otherwise) shall be deemed fully earned upon
payment and are non-refundable; this includes accounts that are renewed.
g) If this Agreement is
terminated early by Customer pursuant to Section 7 or 14(a), or by CloudRadar pursuant to Section 14(b)(ii),
Customer will not be obligated to pay the Fees following the effective date of termination. In all other
cases, and regardless of whether Customer and its Authorized Users’ access or use the Service at the levels
reflected in the Subscription or otherwise, Customer is responsible for paying all Fees through expiration
of the Service Period.
h) Any amount not paid when due will bear interest at the rate of 1.5% per
month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from
the date due until the date paid. Further, in the event of any action by CloudRadar to collect any amount
not paid when due, Customer will pay or reimburse CloudRadar’s costs of collection (including, without
limitation, any attorneys’ fees and court costs).
5. Taxes.
All Fees are exclusive of any applicable sales or other taxes or
similar fees imposed by any government authority. Customer will
a) pay or reimburse all such taxes
and fees (including any interest or penalties), if any, due, based on or measured by amounts payable by
Customer under this Agreement (excluding taxes based on CloudRadar’s net income) or
b) furnish
CloudRadar with evidence acceptable to the government authority to sustain an exemption
therefrom.
6. Service Access and Use Rights.
Subject to this
Agreement, CloudRadar will make the Service available to Customer and Authorized Users during the Service
Period and CloudRadar hereby grants to Customer, during the Service Period, a nonexclusive, nontransferable,
limited right to enable Authorized Users to access and use the Service through the interface and the Site,
and to access and use CloudRadar’s technical and operations documentation and Agents (as defined in Section
9) in support thereof, solely for Customer’s internal, business use. Customer acknowledges that its and each
Authorized User’s access and use of the Service are subject to CloudRadar’s Privacy Policy, which is
published at the Site and incorporated into this Agreement by reference. CloudRadar may delegate the
performance of certain portions of the Service to third parties, but will remain responsible to Customer for
delivery thereof. CloudRadar may in its discretion modify, enhance or otherwise change the Service from time
to time, provided that, if Customer is under a Paying Plan, such change does not adversely affect the
Service as it existed at the Subscription Date.
7. Service Level Commitment.
Excluding scheduled maintenance windows,
CloudRadar will use commercially reasonable efforts to maintain 99.8% availability of the hosted portion of
the Service for each calendar month during the term of this Agreement. The Service will be deemed
“available” so long as Authorized Users are able to login to the Service interface and access monitoring
data. Excluding planned maintenance periods, in the event the Service availability drops below 99.8% for two
consecutive months, Customer may terminate the Service in the calendar month following such two-month period
upon written notice to CloudRadar. To assess uptime, Customer may, if under a Paying Plan, request the
Service availability for a prior month by filing a support ticket through the Site.
8.
Support.
Subject to this Agreement, if Customer is under a Paying Plan, CloudRadar
will provide unlimited in-product and email support (“Support”). Although no response times are guaranteed,
CloudRadar will use commercially reasonable efforts to respond to such support requests within 48 hours.
CloudRadar may delegate the performance of certain portions of the Support to third parties, but will remain
responsible to Customer for delivery thereof. In the event any Support is not performed with reasonable
skill, care and diligence, CloudRadar will re-perform the Support to the extent necessary to correct the
defective performance, and Customer acknowledges that re-performance shall be Customer’s sole and exclusive
remedy for any defective performance. Notwithstanding the foregoing, if Customer has purchased the Services
through an authorized CloudRadar reseller, such reseller shall be responsible for Tier 1 support and any
other support terms set forth in Customer’s subscription with such reseller.
9. Agents;
Third-Party Content.
CloudRadar will make various application program interfaces (APIs),
agents, libraries and other materials available at the Site or through the Service from time to time in its
discretion to support Customer’s access and use of the Service (collectively, “Agents”). Customer
acknowledges and agrees that:
a) the Agents may only be used on systems owned, leased or primarily
operated by Customer,
b) the Agents are made available solely to support access and use of the
Service, and CloudRadar has no liability with respect to any other uses of the Agents, and
c) certain
of the Agents may include third-party content that is subject to open source license terms that may expand
or limit Customers’ rights to use such content.
Customer agrees to review any electronic documentation
that accompanies the Agents or is identified in a link provided to Customer to determine which portions of
the Agents are open source and are licensed under open source license terms. To the extent any such license
terms require that CloudRadar provide Customer the rights to copy, modify, distribute or otherwise use any
open source software in the Agents that are inconsistent with the limited rights granted to Customer in this
Agreement, then such rights in the applicable open source license terms shall take precedence over the
rights and restrictions granted in this Agreement, but solely with respect to such open source software.
Further, Customer acknowledges and agrees that all third-party content is governed by its respective terms
and such terms are solely between Customer and the applicable licensor. Customer agrees to comply with such
third-party terms (including open source license terms), as applicable, and CloudRadar has no liability with
respect to third-party content under this Agreement.
10. Restrictions and Limitations.
a) CloudRadar has implemented commercially
reasonable, industry-standard technical and organizational measures designed to secure Customer Data from
accidental loss and from unauthorized access, use, alteration or disclosure, and each hosting provider for
the Service has or will have similar contractual obligations to CloudRadar. CloudRadar does not represent,
and, except as expressly set forth herein and the Privacy Policy, expressly disclaims, that it meets the
standards for operational compliance or certification in any specific area, including any government or
industry-association requirements.
b) Customer is solely responsible for providing, installing and
maintaining at its own expense all equipment, facilities and services necessary to enable Authorized Users’
access and use of the Service through the interface, including, without limitation all computer hardware and
software and Internet access.
c) Customer will use commercially reasonable efforts to ensure,
through proper instructions and enforcement actions, that all access to and use of the Service by Customer
or Authorized Users’, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will
conform to this Agreement and will be made and used solely for proper and legal purposes, and will be
conducted in a manner that does not violate any law or regulation, the rights of any third party or this
Agreement. Customer is solely responsible for tracking and for ensuring the security and confidentiality of
all user identifiers and passwords. CloudRadar has no liability with respect to any use or misuse of such
identifiers or passwords, and any use thereof other than as provided in this Agreement will be considered a
breach of this Agreement by Customer.
d) Without limiting the generality of Sections 10 and 12, no
provision of this Agreement includes the right to, and Customer will not, directly or indirectly:
i)
attempt to interfere with, compromise the system integrity or security or decipher any
transmissions to or from the servers running the Service; (ii) take any action that imposes, or may impose
at CloudRadar’s discretion, an unreasonable or disproportionately large load on CloudRadar’s infrastructure;
ii)
knowingly upload invalid data, viruses, worms, or other software agents through the Service;
iii)
enable any person or entity other than Authorized Users to access and use the Service or Technology (as
defined in Section 12(b));
iv) modify or create any derivative work based upon the Service or Technology;
v)
engage in, permit or suffer to continue any copying or distribution of the Service or Technology;
(vii) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate
the source code for, any software that is part of the Service or Technology;
vi) access the Service in
order to build a competitive solution or to assist any third party to build a competitive solution;
vii)
remove, obscure or alter any proprietary notice related to the Service or Technology; or
viii) engage in,
permit or suffer to continue any use or other activity that is not expressly authorized under this Agreement
by any person or entity within Customer’s control (“Unauthorized Use”).
In the event Customer violates
any of the terms set forth in this Section, in addition to any other remedies available at law or in equity,
CloudRadar will have the right, in its discretion, to immediately suspend Customer’s and Authorized Users’
use and access to the Service.
11. Rights Grants to CloudRadar.
a) In order to provide and support the Service
for the benefit of Customer, Customer hereby grants CloudRadar a worldwide, non-exclusive, royalty-free
license during the Service Period to use, reproduce, electronically distribute, transmit, have transmitted,
perform, display, store, and archive the data, text, software, audio, video, images or other content that
Customer and/or any Authorized User run on or through the Service, cause to interface with the Service,
upload to the Service, or otherwise transfer, process, use or store in connection with the Service
(collectively “Customer Data”). Customer agrees that, so long as no Customer Confidential Information is
publicly disclosed, CloudRadar may:
i) use Customer Data to refine, supplement or test
CloudRadar’s product and service offerings;
ii) include aggregated and anonymized Customer Data in
any publicly available reports, analyses and promotional materials; and
iii) retain anonymized,
non-attributable Customer Data following any termination of this Agreement for use in connection with the
foregoing.
b) During the Service Period, CloudRadar may list Customer as a customer and use
Customer’s name and logo on the Site, on publicly available customer lists and in media
releases.
12. Proprietary Rights.
a) Subject only to the limited rights
expressly granted in this Agreement, as between Customer and CloudRadar, Customer shall retain all right,
title and interest in and to the Customer Data and all intellectual property rights therein. Customer is
solely responsible, and CloudRadar assumes no liability, for the Customer Data that Authorized Users or
other third parties post, send or otherwise make available over or through the Service.
b) As used
in this Agreement, “Technology” means any and all know-how, processes, methodologies, specifications,
designs, inventions, functionality, graphics, techniques, methods, applications, computer programs,
libraries, user manuals, documentation, products or other technology and materials of any kind, or any
enhancement thereto, used by CloudRadar in connection with the performance of the Service or the Support, or
made available by CloudRadar to Customer, any Authorized User or any third party in connection with the
Service or the Support. Without limiting the foregoing, Technology includes the products, services and
technology makes available through the Site, the Agents, the Service interface and any CloudRadar branded or
co-branded websites (including sub-domains, widgets and mobile versions).
c) The Service and
Technology constitute or otherwise involve valuable intellectual property rights of CloudRadar and all
right, title and interest in and to the foregoing shall, as between the parties, be owned by CloudRadar. No
title to or ownership of the Service or Technology, or any intellectual property rights associated
therewith, is transferred to Customer, any Authorized User or any third party under this Agreement. Sections
6 and 9 set forth the entirety of Customer’s limited rights to access and use the Service and Agents and to
make the Service and Agents available to Authorized Users. Except with respect to certain of the Agents, in
no event shall Customer be entitled to access or review any object code or source code. CloudRadar reserves
all rights to the Service and Technology not otherwise expressly granted herein.
13.
Confidentiality.
a) As used in this Agreement, “Confidential Information” means any
information that is proprietary or confidential to the Discloser (as defined below) or that the Discloser is
obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party).
Confidential Information may be of a technical, business or other nature. However, Confidential Information
does not include any information that:
i) was known to the Recipient (as defined below)
prior to receiving the same from the Discloser in connection with this Agreement;
ii) is
independently developed by the Recipient;
iii) is acquired by the Recipient from another source without
restriction as to use or disclosure; or
iv) is or becomes part of the public domain through no fault or
action of the Recipient.
b) Each party reserves any and all right, title and interest (including
any intellectual property rights) that it may have in or to any Confidential Information that it may
disclose to the other party under this Agreement. The party that receives any Confidential Information (the
“Recipient”) of the other party (the “Discloser”) will protect Confidential Information of the Discloser
against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own
Confidential Information of a similar nature against Unauthorized Use or disclosure, but in no event will
use less than a reasonable standard of care to protect such Confidential Information; provided that the
Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or
proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the
same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of
the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be
interpreted or construed to prohibit:
i) any use or disclosure which is necessary or
appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights
under this Agreement or any other agreement between the parties;
ii) any use or disclosure required
by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable
advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other
appropriate relief for the protection of its Confidential Information; or
iii) any use or disclosure made
with the consent of the Discloser.
In the event of any breach or threatened breach by the Recipient of
its obligations under this Section 13(b), the Discloser will be entitled to injunctive and other equitable
relief to enforce such obligations. The obligations of confidentiality shall survive expiration or
termination of this Agreement.
14. Early Service Termination.
a) Either party may terminate this Agreement prior
to the end of the Service Period in the event of a material breach of this Agreement by the other party if
such other party fails to correct such breach within 30 days of notice.
b) In addition to the
rights under Section 14(a), CloudRadar may terminate this Agreement immediately upon notice to Customer
i)
if Customer breaches any provisions of Section 6, 9 or 10, (ii) in order to comply with
applicable laws or regulations,
ii) if Customer defaults in the timely payment of any amounts due
CloudRadar under a Paying Plan, or
iii) if Customer has purchased the Services through a reseller that is
no longer an authorized reseller of CloudRadar.
15. Effect of Expiration or Early Service Termination.
a) Upon expiration or
earlier termination of this Agreement:
i) any and all rights granted to Customer with
respect to the Service and Technology, and except as set forth in Section 11 any and all rights granted to
CloudRadar with respect to the Customer Data, will terminate effective as of the effective date of
termination;
ii) Customer will return to CloudRadar any and all Confidential Information of
CloudRadar in the possession or control of Customer;
iii) subject to Section 15(b), CloudRadar will
return to Customer any and all Confidential Information of Customer in its possession or control;
iv)
CloudRadar will have no obligation to provide the Service to Customer or Authorized Users after the
effective date of the termination; and
v) Customer will pay to CloudRadar any amounts payable for
Customer’s and Authorized User’s use of the Service through the effective date of the termination, together
with all other amounts in accordance with Section 4.
This Section 15 and Sections 4, 5, 10 through 13 and
16 through 18 shall survive the expiration or earlier termination of this Agreement.
b) CloudRadar’s
only obligation with respect to any electronic information transmitted or received by Customer or Authorized
Users in relation to Customer’s and Authorized User’s use of the Service is, upon Customer’s request, to
promptly delete or destroy the information that is stored, if any, in the Service database on the effective
date of termination. Customer acknowledges the duration of the retention of such information is determined
by the terms of the applicable Free Plan or Paying Plan. In addition, Customer acknowledges that although
information in the Service database will be deleted from its transaction servers, CloudRadar may retain such
information stored on automatic backup archiving systems during the period such backup or archived materials
are retained under CloudRadar’s customary procedures and policies. In addition, CloudRadar may retain
certain information as provided in Section 11(a)(iii).
16. Representations and Indemnities.
a) Customer hereby represents and warrants to
CloudRadar that Customer has the authority to enter into and perform this Agreement and the Customer’s
entering into this Agreement, and performance of its obligations and exercise of its rights under this
Agreement, do not and will not violate any applicable laws, regulations or orders.
b) Customer
hereby represents, warrants and covenants that, without limiting the foregoing: (i) Customer or its
licensors owns all right, title and interest in and to Customer Data; (ii) Customer has all rights in
Customer Data necessary to grant the rights contemplated by this Agreement; and (iii) Customer has obtained
any necessary third-party approvals, including without limitations applicable vendors and licensors, in
relation to third-party content to be used by Customer in connection with the Service or will obtain such
approvals prior to such use.
c) CloudRadar hereby represents, warrants and covenants to Customer,
if under a Paying Plan, that: (i) the Service and Technology as delivered to Customer and used in accordance
with this Agreement will not infringe on any intellectual property right or other right of any other person
or entity and (ii) CloudRadar has all rights in the Service and Technology necessary to grant the rights
contemplated by this Agreement.
d) Customer agrees to defend, indemnify and hold harmless
CloudRadar and its employees, contractors, agents, officers and directors, from and against any and all
claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation
attorneys’ fees) arising out of or related to:
i) Customer’s and Authorized Users’ use of
and access to the Service; (ii) Customer’s or an Authorized User’s violation of any term of this
Agreement;
ii) Customer’s or an Authorized User’s violation of any third-party right, including
without limitation any right of privacy, publicity rights or intellectual property rights;
iii)
Customer’s or an Authorized User’s violation of any law, rule or regulation;
iv) any claim or damages
that arise as a result of any Customer Data; or
v) any other party’s access and use of the Service
with provided identifier(s) and password(s).
e) CloudRadar agrees to defend, indemnify and hold
harmless Customer, if under a Paying Plan, from and against any and all claims, damages, obligations,
losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) arising out
of or related to:
i) CloudRadar’s breach of any representation, warranty or obligation in
this Agreement or
ii) CloudRadar’s violation of any law, rule or regulation. In addition, if the
Service or Technology becomes the subject of a claim of infringement of a U.S. copyright or patent,
CloudRadar will indemnify Customer, if under a Paying Plan, against such claim provided that Customer gives
CloudRadar prompt written notice of the claim, allows CloudRadar to direct the defense and settlement of the
claim, and cooperates with CloudRadar as necessary, at CloudRadar’s expense, for defense and settlement of
the claim.
If the Service or Technology becomes, or, in CloudRadar’s opinion is likely to become, the
subject of such a claim, CloudRadar shall have the right to obtain for Customer the right to continue using
the Service or Technology, replace or modify the Service or Technology so that it becomes non-infringing, or
terminate the rights granted hereunder to such Service or Technology with refund to Customer of any fees
paid for such Service and Technology (less a reasonable charge for the period during which Customer has had
available to it the use of such Service and Technology). CloudRadar will have no liability for any
infringement claim to the extent it
iii) is based on modification of the Service or Technology other than
by CloudRadar;
iv) results from failure of Customer to use any updated version of Service or Technology
provided by CloudRadar to Customer;
v) is based on the combination or use of the Service or
Technology with any other software, program or device not provided by CloudRadar if such infringement would
not have arisen but for such use or combination;
vi) results from compliance by CloudRadar with designs,
plans or specifications furnished by Customer; or
vii)
results from Customer’s operation of the
Service or Technology in a manner that is inconsistent with its intended use.
THE FOREGOING STATES
CLOUDRADAR’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS
INFRINGEMENT. IF UNDER A FREE PLAN, CUSTOMER ACKNOWLEDGES THAT THIS SECTION 10(e) SHALL BE DEEMED DELETED
AND OF NO FORCE OR EFFECT.
f) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE,
TECHNOLOGY, SUPPORT AND ALL OTHER ITEMS PROVIDED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. CloudRadar DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INFRINGEMENT OR
NONCOMPLIANCE IN THE SERVICE, TECHNOLOGY, SUPPORT OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF
CloudRadar UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).
17. Limitations of Liability.
a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR ITS VENDORS OR LICENSORS BE
LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING
WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT
FROM THE USE OF, OR INABILITY TO USE, THE SERVICE OR THE SUPPORT; PROVIDED, HOWEVER, THAT SUCH LIMITATIONS
SHALL NOT APPLY TO:
i) DAMAGES ARISING OUT OF A PARTY’S FAILURE TO COMPLY WITH ITS
CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13;
ii) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER
SECTION 16(d) OR 16(e) (AS APPLICABLE); OR
iii) CUSTOMER’S PAYMENT OBLIGATIONS TO CLOUDRADAR.
b)
UNDER NO CIRCUMSTANCES WILL CloudRadar BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM
HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT(S) OR THE
INFORMATION CONTAINED THEREIN. CloudRadar ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY
i) ERRORS,
MISTAKES, OR INACCURACIES OF CONTENT;
ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE
WHATSOEVER, RESULTING FROM CUSTOMER’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SERVICE OR SUPPORT;
iii)
ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE;
iv) ANY ERRORS OR OMISSIONS IN ANY
CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED,
TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR
v) CUSTOMER DATA OR THE
DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
EXCEPT FOR THEIR RESPECTIVE INDEMNITY AND
CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, DIRECTORS,
EMPLOYEES, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER FOR ANY CLAIMS, PROCEEDINGS,
LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE FEES CUSTOMER PAID TO
CloudRadar HEREUNDER.
c) THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY
IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PART
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO
THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
18. Miscellaneous.
a) Customer may not delegate, assign or transfer this Agreement
or any of its rights and obligations under this Agreement and any attempt to do so shall be void.
b)
CloudRadar may send Customer, in electronic form, information about the Service, additional
information and any information the law requires CloudRadar to provide. Customer acknowledges and agrees
that CloudRadar may provide notices to Customer by email at the address Customer specified in its
Subscription or by access to a website that CloudRadar identifies. Notices emailed to Customer will be
deemed given and received when the email is sent. If Customer does not consent to receiving notices
electronically, Customer and its Authorized Users must stop using the Service. (Please note that these
provisions relate to the customer business relationship and are distinct from marketing and similar emails
covered by the “Opt-Out” provisions of the Privacy Policy.) Customer may provide legal notices to cloudradar
GmbH by email to info@CloudRadar.io, with a duplicate copy sent via registered mail, return receipt
requested, to the following address: CloudRadar GmbH; Dortustr. 46; 14467 Postdam Germany. Customer must
specify in all such notices that the notice is being given under this Agreement.
c) In connection
with this Agreement, Customer will comply with all applicable import, re-import, export, and re-export
control laws and regulations, including the Export Administration Regulations, the International Traffic in
Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign
Assets Control. For clarity, Customer is solely responsible for compliance related to the manner in which
Customer chooses to use the Service, including the transfer and processing of Customer Data.
d) The
parties expressly understand and agree that their relationship is that of independent contractors. Nothing
in this Agreement shall constitute one party as an employee, agent, joint venture partner or servant of
another.
e) CloudRadar shall have no liability to Customer, Authorized Users or third parties for
any failure or delay in performing any obligation under this Agreement due to circumstances beyond its
reasonable control, including without limitation acts of God or nature, fires, floods, strikes, civil
disturbances or terrorism or interruptions in power, communications, satellites, the Internet or any other
network that are beyond its reasonable control.
f) This Agreement will be interpreted, construed
and enforced in all respects in accordance with the laws of the State of New York, without reference to its
choice of law principles.
g) This Agreement, inclusive of the Subscription and Privacy Policy, is
the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral
or written, and all other communications between the parties relating to the subject matter of this
Agreement. In the event any information posted on the Site from time to time conflicts with any provision of
this Agreement, the applicable provision of this Agreement shall control. Any terms and conditions of any
other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent
with or different from the terms and conditions of this Agreement shall be of no force or effect. Any
affiliate of Customer shall be deemed a third party for purposes of this Agreement. This Agreement may be
modified only by a written instrument duly executed by authorized representatives of the parties. Any waiver
by either party of any condition, term or provision of this Agreement shall not be construed as a waiver of
any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable,
the remainder of the Agreement shall continue in full force and effect.