This Software-as-a-Service Agreement governs all usage by the Customer (defined below) of the Hosted Services (defined below) offered by Cloudsquare, Inc., a California business corporation (“Cloudsquare”). By using the Service or any part of it in any way (including by submitting an Order Form or making payment in connection with the Service), Customer agrees to this Agreement effective on the date that Customer first uses, accesses, orders or makes payment for any Hosted Service (the “Effective Date”).
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY ARE AT LEAST EIGHTEEN YEARS OF AGE OR ANY HIGHER AGE IN THEIR JURISDICTION THAT IS REQUIRED TO FORM A BINDING CONTRACT AND THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
THIS AGREEMENT CONTAINS PROVISIONS PURSUANT TO WHICH ANY TRIAL SERVICES THAT YOU MAY ACCESS CONVERT AUTOMATICALLY TO FEE-BASED SERVICES AT THE END OF A TRIAL PERIOD.
This Agreement is subject to occasional revision. If Cloudsquare makes substantial changes, Cloudsquare may notify Customer by sending an e-mail to the last e-mail address Customer provided to us (if any), and/or by prominently posting notice of the changes within the interface of the Service itself. Customer is responsible for providing Cloudsquare with its most current e-mail address. In the event that the last e-mail address that Customer provided Cloudsquare is not valid, or for any reason is not capable of delivering to Customer the notice described above, Cloudsquare’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective upon the earlier of thirty (30) days following Cloudsquare’s dispatch of an e-mail notice to Customer (if applicable) or thirty (30) days following Cloudsquare’s posting of notice of the changes in the Service. These changes will be effective immediately for any person or organization agreeing to this Agreement for the first time after the changes are published. Continued use of the Service following notice of such changes shall indicate Customer’s acknowledgement of such changes and agreement to be bound by this Agreement as so amended.
1. Definitions
As used in this Agreement,
“Affiliate” of an organization means any person, company or other organization that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first organization. “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 Cloudsquare Software-as-a-Service Agreement.
“Beta Services” means Services, or features or functionality within such Services, that are expressly designated (within product interfaces or otherwise) as beta, pilot, limited release, developer preview, non-production, evaluation, with similar descriptions.
“Cloudsquare Marks” means any and all trademarks, service marks, logos or other branding owned or controlled by Cloudsquare relating to Cloudsquare or to any Service. “Cloudsquare Marks” does not include any Intellectual Property of any third party.
“Cloudsquare Systems” means the servers and other hardware and software systems that Cloudsquare owns, leases or controls.
“Customer Data” means Personal Data and any other files, software, scripts, images, audio, video, text, data or other materials submitted or made available to Cloudsquare by Customer, or by Customer’s personnel or by third parties on Customer’s behalf, in connection with Hosted Services.
“Customer” means the individual, company or other legal entity agreeing to this Agreement, together with Customer’s Affiliates (if any) that are expressly identified in applicable Order Forms or SOWs.
“Customer Systems” means any and all hardware, software and other systems that Customer owns, leases or controls.
“Documentation” means the document(s) that Cloudsquare makes available to Customer from time to time that provide instructions for using the Service or for using any other Cloudsquare Products, accessible at cloudsquare.io (as updated from time to time by Cloudsquare) or by email.
“Free Services” means those Services and Service features that Cloudsquare may make available to Customer from time to time free of charge, except that Free Services do not include any Trial Services even if such Trial Services are provided without charge.
“Hosted Services” means Cloudsquare’s hosting, management, operation and web-based provision of the subscription-based Software-as-a-Service product(s) and/or service(s) expressly identified in an Order Form or SOW that expressly incorporates this Agreement. Hosted Services also includes the Documentation and any applicable Beta Services and Free Services. Hosted Services does not include any Third-Party Applications or Third-Party Materials.
“Incentive License” means any Cloudsquare license that Cloudsquare provisions to Customer at no charge or at a reduced fee for a specific authorized use, as further described in Section 8.
“Intellectual Property” means copyrights, patents, trademarks, trade secrets, and trade dress.
“Malicious Code” means computer code, files, scripts, agents or programs whose intent or effect is to do harm, including viruses, worms, time bombs and Trojan horses.
“Order Form” means a written document, including any online ordering page or portal, whether identified as an “Order Form” or otherwise, to which the parties agree and which identifies one or more Services to be provided to Customer by Cloudsquare, and any addenda and amendments thereto.
“Personal Data” means all material defined as “personal information” under the California Consumer Privacy Act of 2018 and any other material defined as “personal data” or “personal information” under other applicable laws worldwide that provide protections for data regarding identified or identifiable individuals.
“Professional Services” means Implementation Services, Managed Services, Business Process Review Services, Installation and Configuration Services and any other professional, consulting and/or other services expressly provided for in an Order Form or SOW.
“Salesforce Applications” means applications, products and services offered by Salesforce, Inc., a Delaware corporation with its headquarters in California (“Salesforce”).
“Salesforce Environment” means the Salesforce instance or organization within which Customer accesses and uses the Hosted Services and to which Cloudsquare licenses are assigned.
“Services” means, collectively, Cloudsquare’s Hosted Services and Professional Services.
“Statement of Work” or “SOW” means a written document executed by all parties that sets forth the scope and description of one or more Professional Services to be provided by Cloudsquare to Customer, and any addenda and amendments thereto.
“Third-Party Content” means information, data and any other content that is made available through the Hosted Services but received or obtained by Cloudsquare from third parties or from publicly available sources.
“Third-Party Applications” means any software applications or software application functionalities that are provided by Customer or by a third party and which interoperate with any Hosted Services. Third-Party Applications include Salesforce Applications.
“Third-Party Materials” means open-source software and any other software, information or materials developed or made available by a third party and incorporated into any Hosted Services.
“Trial Services” means Hosted Services that Cloudsquare may make available to Customer pursuant to an Order Form or SOW that expressly designates such Hosted Services as Trial Services.
“Updates” means updates, upgrades, bug fixes, patches, error corrections and/or releases of new features by Cloudsquare relating to the Hosted Services, including any related documentation.
2. Overview
2.1. Services. Cloudsquare provides a variety of Hosted Services and Professional Services. To the extent that an Order Form or SOW provides for Hosted Services, this Agreement governs those Hosted Services. The Hosted Services function as set forth in this Agreement and in the Documentation.
2.2. Relationship to Salesforce and Salesforce Applications. All Hosted Services work in connection with one or more Salesforce Applications and require Customer to have and maintain, at Customer’s own expense, accounts with Salesforce Applications as the Documentation specifies. If Customer loses access to necessary Salesforce Applications, the Hosted Services will cease to function as to Customer and Cloudsquare will not be liable to Customer.
2.3. Beta Services, Free Services and Trial Services. From time to time, Cloudsquare may make Beta Services, Free Services or Trial Services available to Customer. Customer’s use of any Beta Services, Free Services or Trial Services is subject to this Agreement and to any other express agreement between the parties regarding any such services. Customer in its sole discretion may choose to try or use any such Beta Services, Free Services or Trial Services.
Free Services are made available at no charge. Beta Services and Trial Services are made available at no charge except where an Order Form or SOW provides for fees for such Beta Services or Trial Services.
Using Free Services, Beta Services or Trial Services does not provide Customer with any rights or licenses relating to any Services except as the applicable Order Form or SOW provides.
2.4. AUTOMATIC CONVERSION OF TRIAL SERVICES TO FEE-BASED SERVICES.
TRIAL SERVICES ARE OFFERED AT THE PRICING INDICATED IN THE APPLICABLE ORDER FORM OR SOW (WHICH MAY BE DISCOUNTED OR AT NO COST) ON THE TERMS OF THAT ORDER FORM OR SOW. UPON THAT ORDER FORM OR SOW’S TERMINATION OR EXPIRATION, THE ORDER FORM OR SOW PROVIDES OTHERWISE, CUSTOMER’S ACCESS TO THE TRIAL SERVICES WILL AUTOMATICALLY CONVERT TO A SUBSCRIPTION TO THE HOSTED SERVICE(S) SET FORTH IN THE ORDER FORM OR SOW.
2.5. Subscription. Access to and use of each Hosted Service is purchased on a subscription basis. Depending on the extent to which Customer actually chooses to use a Hosted Service during the Term, Customer’s actual use of the Hosted Service may not make full use of all aspects of the Hosted Service in a particular month or subscription period.
2.6. Modification and Discontinuance. The Hosted Services, like most software, are subject to ongoing improvement efforts and feature additions. Cloudsquare may modify the Hosted Services at any time during the Term, with or without prior notice to Customer and without liability or penalty, provided that no such modification will render the Hosted Services materially less functional to Customer during the Term. It may also be necessary for Cloudsquare to perform repairs or maintenance or remotely patch or upgrade the Hosted Services, which may temporarily degrade the quality of the Hosted Services or result in a partial or complete outage of the Hosted Services.
2.7. Third-Party Integrations. Hosted Services may interoperate with one or more Third-Party Applications. These integrations are provided solely as a convenience to Customer and are subject to change at any time based on changes made by the applicable third parties, technical limitations, or Cloudsquare’s internal business decisions. Cloudsquare does not guarantee the continued availability or functionality of any integration with Third-Party Applications for the duration of the Term.
Cloudsquare may modify, limit, or discontinue support for any integration with a Third-Party Application at its sole discretion. Where reasonably practicable, Cloudsquare will provide Customer with at least thirty (30) days’ advance notice of any material discontinuation of such support. Customer acknowledges and agrees that any modification or discontinuation of a Third-Party Application integration shall not constitute a breach of this Agreement and shall not entitle Customer to any refund, credit, or other compensation.
2.8. System Requirements. The Documentation may describe web browsers, operating systems or other Customer Systems, or versions of the same, with which Hosted Services are designed to perform optimally (the “System Requirements”). Cloudsquare may update System Requirements from time to time by updating the Documentation without separate notice to Customer. If Customer uses Customer Systems other than or older than those in the System Requirements in effect at any given time during the Term, the Hosted Services may not function as intended or as this Agreement provides. If Customer uses in connection with the Hosted Services any Third-Party Application that does not interoperate with Salesforce Applications, then Hosted Services will cease to function as to Customer and Cloudsquare will not be liable to Customer.
2.9. Links from Hosted Services. If a Hosted Service contains links to other sites and resources provided by third parties, these links are provided for Customer’s convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Cloudsquare has no control over the contents of those sites or resources and accepts no responsibility for them or for any loss or damage that may arise from Customer’s use of them. If Customer decides to access any of the third-party websites linked to a Hosted Service, Customer does so at Customer’s own risk and subject to the terms of use for such websites.
3. Access and Use
3.1. Access to the Hosted Services. Subject to this Agreement, the Documentation and applicable Order Forms and SOWs, during the Term, (a) Cloudsquare hereby grants Customer a non-exclusive, non-transferable right to access and use the Hosted Services for Customer’s internal use and (b) Cloudsquare shall provide Customer with any necessary passwords, network links, credentials or connections to allow Customer to access the Hosted Services.
3.2. Affiliate Access. Customer’s Affiliates, if any, expressly identified in an Order Form or SOW may access and use the Hosted Services subject to the same terms and conditions as Customer, provided that Customer will remain liable for payment of all fees hereunder and Customer’s indemnification obligations hereunder. Customer will cause such Affiliates to comply with this Agreement as if they were Customer and any reference to “Customer” will include such Affiliates. Any breach of this Agreement by an Affiliate or its respective personnel will be deemed a breach by Customer of this Agreement and Customer will be liable for such breach as if itself had breached this Agreement.
3.3. Availability. During the Term, Cloudsquare will use commercially reasonable efforts to make the Hosted Services available 24 hours a day, 7 days a week, 365 days a year, except for: (a) planned downtime (of which Cloudsquare will give at least 24 hours’ advance electronic notice to the email address(es) identified in Customer’s Order Form or SOW, or other email addresses later provided to Cloudsquare by Customer for this purpose), and (b) Force Majeure Events.
3.4. Customer Support. Each Hosted Services includes such customer service provisions as may be set forth in a SOW or Order Form and any standard customer service that Cloudsquare at the time may offer to customers who have not entered into separate agreements for Professional Services, as further detailed in the Documentation or on Cloudsquare’s website. Except for the foregoing and as otherwise set forth herein, this Agreement does not obligate Cloudsquare to provide training, onboarding, troubleshooting, bug-fixing or other customer services. Unless otherwise specified in the Order Form, all Customer Support for a Hosted Service will be handled through Cloudsquare case management system and require the customer to follow the expected process to create a case.
REPRODUCING ERRORS: Cloudsquare must be able to reproduce errors to resolve them. Customer agrees to cooperate and work closely with Cloudsquare to reproduce errors, including conducting diagnostic or troubleshooting activities as requested and appropriate. Also, subject to Customer’s approval on a case-by-case basis, Users may be asked to provide remote access to their Salesforce Environment for troubleshooting purposes.
Customer is responsible for evaluating any advice or guidance received from Cloudsquare as part of a customer support and for implementing any such advice and guidance.
Exclusions:
- Implementation of the Customer Support
- Assistance with Salesforce credentials
- For security reasons, Cloudsquare does not provide contact information for system administrators
- Assistance with non-Cloudsquare products, services, or technologies, including implementation, administration, or use of third-party enabling technologies such as databases, computer networks or communications systems.
- Assistance with non-Cloudsquare AppExchange applications
- Creation or testing of custom code, including SOQL queries, process builder, flows, workflows etc.
3.5. Updates. Cloudsquare in its sole discretion may make Updates and Improvements to Hosted Services from time to time during the Term.
4. Customer’s Responsibilities
4.1. Customer’s Responsibilities. During the Term, Customer will (a) use the Hosted Services consistent with this Agreement and with the Documentation and (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Hosted Services by Customer’s personnel and notify Cloudsquare promptly of any such unauthorized access or use that Customer reasonably believes has occurred or may have occurred, except where applicable law precludes such notification.
4.2. Use Restrictions. Customer will not at any time during or after the Term, directly or indirectly: (a) sell, resell, license, sublicense, distribute, rent or lease any part of the Hosted Services, or disclose any of them to any third parties without compensation; (b) use the Hosted Services to store, use or transmit material in violation of third-party privacy rights, contractual rights or Intellectual Property rights; (c) use the Hosted Services to store or transmit to third parties any Malicious Code, or disable, impair or conduct penetration tests or scans of any hardware, software or other systems that Cloudsquare owns, leases or controls; (d) interfere with or disrupt the Hosted Services’ integrity or performance; (e) gain unauthorized access to the Hosted Services; (f) permit direct or indirect access to or use of the Hosted Services in a way that circumvents a contractual usage limit, or access or use any Intellectual Property owned or made available to Customer by Cloudsquare except as this Agreement allows; (g) modify, copy, or create derivative works based on the Hosted Services or any part it, except pursuant to separate written agreements with Cloudsquare; (h) frame or mirror any part of the Hosted Services, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation; (i) remove or modify any attributions, proprietary marks or notices that Cloudsquare may include in the Hosted Services, including Cloudsquare Marks or any other attributions, property marks or notices relating to Third-Party Materials; (j) use the Hosted Services in a way not expressly authorized by this Agreement; (k) disassemble, reverse engineer, or decompile any part of the Hosted Services, or access any of them to (1) build a product or service competitive to Cloudsquare, (2) build a product or service using similar ideas, features, functions or graphics of any Hosted Services, (3) copy any ideas, features, functions or graphics of the Hosted Services or (4) determine whether the Hosted Services or any part of them are within the scope of any patent; or (l) disable, delete, modify, or otherwise interfere with the Monitoring Job described in Section 8.
Any use of the Service in breach of this Agreement by Customer that in Cloudsquare’s judgment threatens the security, availability or functioning of any Cloudsquare Products may result in Cloudsquare’s immediate suspension of the Hosted Services as to Customer (if applicable).
4.3. Suspension. Cloudsquare may temporarily suspend Customer’s access to any part or all of the Hosted Services: (i) if Cloudsquare reasonably determines that (A) there is a threat or attack on any Hosted Services; (B) Customer’s use of any Hosted Services disrupts or poses a security risk to any Services; (C) Customer uses any Hosted Services for fraudulent or illegal activities; (D) Customer becomes the subject of any bankruptcy, liquidation, dissolution, or similar proceeding; or (E) Cloudsquare’s provision of any Hosted Services to Customer becomes prohibited by applicable law; (ii) if any vendor of Cloudsquare has suspended or terminated Cloudsquare’s access to or use of any Third-Party Materials on which the Hosted Services rely; (iii) on receipt of a court order or law enforcement request directing such suspension; or (iv) if Customer fails to make timely payment of any fees payable to Cloudsquare for any Services (any such suspension described in subclause (i), (ii), (iii) or (iv), a “Service Suspension”).
In the case of any Service Suspension pursuant to subclauses (i) through (iii) above, Cloudsquare will use commercially reasonable efforts to provide written notice before the Service Suspension and to provide updates regarding resumption of access to the Service following the Service Suspension, and shall use commercially reasonable efforts to resume providing access to the Hosted Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured.
Cloudsquare will have no liability to Customer for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
5. Intellectual Property
5.1. Feedback. Cloudsquare may allow Customer to provide Cloudsquare with comments or suggestions about Hosted Services (“Feedback”). Customer hereby grants Cloudsquare a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to copy and store any Feedback and use it to develop new products, improve or modify Hosted Services or other Services or for such other purposes as Cloudsquare may otherwise deem appropriate, in each case without attribution to Customer and without notification to Customer.
5.2. Reservation. All right, title, and interest in the Intellectual Property embodied in the Hosted Services and the Cloudsquare Marks will belong solely to Cloudsquare or to the applicable third-party licensor. Customer will have no rights in any Hosted Services, other Services or Cloudsquare Marks except as this Agreement or another written agreement between the parties expressly provides.
6. Term and Termination
6.1. Term. The Term of this Agreement begins on the Effective Date and terminates in accordance with this section.
6.2. Subscription Terms. The term of Customer’s subscription to each Hosted Service is as specified in the applicable Order Form or SOW (such subscription period, the “Initial Term”). Except as an Order Form or SOW otherwise specifies, each subscription shall automatically renew for additional periods (each, a “Renewal Term”) equal in length to the Initial Term unless either party gives the other party written notice of its intent to terminate at least 30 days before a renewal (in which case, this Agreement shall terminate on the last day of the then-current Initial Term or Renewal Term). The “Term” of this Agreement is the Initial Term plus any Renewal Terms together.
6.3. Termination. In addition to any other termination option authorized by this Agreement,
(a) either party may terminate this Agreement immediately or at any other time by notice to the other party if (i) that other party has failed to cure its material breach of this Agreement within 14 days after notice of it from the terminating party; or (ii) the other party becomes insolvent, is liquidated or dissolved or if any proceedings are commenced by, for or against that other party under any bankruptcy, insolvency, reorganization of debts or debtors relief law, or law providing for the appointment of a receiver or trustee in bankruptcy;
(b) Cloudsquare may terminate this Agreement with 14 or more days’ notice to Customer if Customer has breached any payment obligation under this Agreement; and
(c) Cloudsquare may terminate this Agreement with 90 or more days’ notice to Customer for any reason.
6.4. Effects of Termination of this Agreement and Termination of Subscriptions. Unless an Order Form or SOW or another written agreement between the parties expressly provides otherwise, the termination of Customer’s subscription to one Hosted Service does not by itself cause the termination of any other Hosted Service to which Customer may at that time subscribe or otherwise modify, waive or otherwise affect any agreement between the parties regarding any other Hosted Service.
7. Fees and Payment
7.1. Fees. For each Hosted Service and any Optional Support Services, Customer will pay Cloudsquare the fee(s) specified herein and in each applicable Order Form and/or SOW through any payment method authorized therein and on the schedules set forth therein.
Customer’s authorization to Cloudsquare to charge Customer’s payment card or account for the Initial Term also authorizes Cloudsquare to charge Customer for each Renewal Term unless and until this Agreement is terminated. Customer may discontinue future charges under this Agreement by terminating as this Agreement provides. All fees are nonrefundable except as expressly provided herein.
7.2. Renewal Term Fees. Except as an Order Form or SOW otherwise specifies, fees in Renewal Terms (including any promotional, one-time-priced or other non-standard fees) shall be at Cloudsquare’s list prices for each Hosted Service in effect at the time of renewal. Notwithstanding anything to the contrary herein, any renewal in which subscription volume or subscription length for any Hosted Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
7.3. Subscription License Decreases. If Customer wishes to decrease any specified number of licenses while a Subscription Term is in progress, Customer may do so by so agreeing with Cloudsquare to make the adjustment at the start of the next Renewal Term for reduced fees. Cloudsquare does not provide discounts, credits or other fee reductions in cases where Customer wishes to decrease any specified number of licenses while a Subscription Term is in progress.
7.4. Taxes. Each party will be responsible for its own taxes properly levied on it by virtue of its undertakings hereunder.
7.5. Credit Card Fees. If Cloudsquare approves the Customer to pay via credit card, an additional credit cards fee of 3.5% will be added to the invoice amount.
8. License Type Monitoring and Compliance
8.1. Application. This Section 8 applies to any Customer that has been provisioned with one or more Incentive Licenses, regardless of the Salesforce license type to which such licenses are intended to be assigned. The specific authorized use for each Incentive License, including the Salesforce license type to which it may be assigned, will be communicated to Customer in writing by Cloudsquare at the time of provisioning (the “Authorized Assignment”). Customers provisioned exclusively with standard paid licenses at the full applicable fee are not subject to this Section 8.
8.2. License Monitoring. Customer acknowledges and agrees that Cloudsquare has no technical ability to restrict or control which Salesforce user or Salesforce license type a Cloudsquare license is assigned to within Customer’s Salesforce Environment. As a condition of receiving any Incentive License, Customer consents to the installation and continued operation of a Salesforce scheduled job within Customer’s Salesforce Environment (the “Monitoring Job”). The Monitoring Job will run on a daily basis and transmit to Cloudsquare’s systems a report (the “License Report”) detailing the total number of Cloudsquare licenses assigned to each Salesforce license type within Customer’s Salesforce Environment. For the avoidance of doubt, the License Report does not identify, collect, or transmit any information about individual users, including names, usernames, email addresses, or any other personally identifiable information. Customer agrees not to disable, delete, modify, or interfere with the Monitoring Job in any way.
8.3. License Report Discrepancy. If Cloudsquare determines, through the License Report or otherwise, that one or more Incentive Licenses have been assigned to a Salesforce license type that differs from the Authorized Assignment, Cloudsquare will promptly notify Customer via email to the Billing Contact Email listed in the applicable Order Form (“Discrepancy Notice”). Customer will have one (1) business day from the time the Discrepancy Notice is sent to correct the assignment and restore the affected license(s) to the Authorized Assignment. If Customer fails to correct the discrepancy within that period, Cloudsquare reserves the right, at its sole discretion, to invoice Customer for the affected license(s) at the then-current applicable standard fee as determined by Cloudsquare, prorated from the date the unauthorized assignment first occurred through the end of the then-current subscription term.
8.4. Monitoring Job Interruption. If the Monitoring Job fails to transmit a License Report for twenty-four (24) or more consecutive hours for any reason, including but not limited to cancellation, deletion, modification, or a technical error within Customer’s Salesforce Environment, Cloudsquare will notify Customer via email (“Interruption Notice”). Customer will have one (1) business day from the time the Interruption Notice is sent to restore the Monitoring Job to full operation and confirm restoration to Cloudsquare in writing. If Customer fails to restore the Monitoring Job within that period, Cloudsquare reserves the right, at its sole discretion, to invoice Customer for all Incentive Licenses at the then-current applicable standard fee as determined by Cloudsquare, prorated from the time reporting ceased through the end of the then-current subscription term.
8.5. Fees at Cloudsquare’s Discretion. Cloudsquare reserves the right, in its sole and absolute discretion, to offer Incentive Licenses at a reduced fee or at no charge for specific authorized uses. Any such arrangement is contingent on Customer’s ongoing compliance with the terms of this Section 8, including strict adherence to the Authorized Assignment. Non-compliance will result in the then-current applicable standard fees becoming immediately due and payable, regardless of any prior reduced-fee or no-charge arrangement.
8.6. Billing and Collection. Any fees assessed under this Section 8 will be invoiced to Customer and are due within fifteen (15) calendar days of the invoice date, consistent with the payment terms set forth in the applicable Order Form. Cloudsquare reserves all rights available under this Agreement to collect unpaid amounts, including suspension of Services.
9. Confidentiality
9.1. Confidential Information. “Confidential Information” means all information disclosed by a party (as a “Disclosing Party”) to the other party (as a “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. Confidential Information of each party includes all SOWs or Order Forms (including pricing information therein), as well as business and marketing plans, strategies, data, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
9.2. Protection of Confidential Information. During the Term and for two years after it, a Receiving Party shall (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, 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 not materially less protective of the Confidential Information than those herein.
9.3. Compelled Disclosure. A Receiving Party may disclose Confidential Information of a 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.
9.4. Relation to Other Confidentiality Agreements. If Customer and Cloudsquare enter into a separate written agreement with each other conferring confidentiality obligations on either or both parties (a “Separate NDA”), or if Customer and Cloudsquare entered into a Separate NDA prior to this Agreement’s Effective Date, then the provisions of that Separate NDA wholly replace Sections 9.1 through 9.3 of this Agreement unless that Separate NDA expressly provides otherwise.
10. Mutual Warranties
Each party warrants to the other party that:
10.1. the warranting party is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization, and has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement.
10.2. the warranting party throughout the Term (a) shall comply with all applicable laws (including all export and re-export restrictions imposed by any U.S. or foreign law relating to the Hosted Services and all laws relating to bribery of government officials), (b) is not and will not be named on any U.S. government denied-party list, (c) shall have all authorizations required by any applicable laws to provide Cloudsquare with Personal Data provided to Cloudsquare pursuant to this Agreement and (d) shall have in effect appropriate types and levels of insurance covering the warranting party for losses, damages or expenses arising out of a cybersecurity or data security incident, breach or event.
11. Additional Cloudsquare Representations and Warranties
Cloudsquare warrants to Customer that Customer’s usage of the Hosted Services in compliance with this Agreement will not infringe any third party’s Intellectual Property rights.
12. Additional Customer Representations and Warranties
Customer warrants to Cloudsquare that:
12.1. Customer is not an agency, department, or other unit of any federal, state, county, municipal or other governmental entity in the United States of America or in any other country.
12.2. Customer’s use of the Hosted Services in compliance with this Agreement will not cause Customer to be in breach of (a) any end user license agreements, Terms of Use or other agreements relating to Customer Systems or (b) any internal policies or practices applicable to Customer relating to information security, data security, privacy or similar matters.
13. DISCLAIMERS
EXCEPT AS THIS AGREEMENT EXPRESSLY PROVIDES, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
THE DISCLAIMERS IN THIS SECTION APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT.
14. LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION:
(a) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND
(b) IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO CLOUDSQUARE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM(S) AND/OR SOW(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE EXCLUSIONS SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, CUSTOMER’S BREACH OF ANY EXPRESS RESTRICTION ON USE OF HOSTED SERVICES HEREIN, OR CUSTOMER’S PAYMENT OBLIGATIONS TO CLOUDSQUARE UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT AND THE PRICING FOR THE HOSTED SERVICES.
15. Indemnification
Cloudsquare shall indemnify, defend and hold harmless (collectively “indemnify” or “indemnification”) Customer and Customer’s officers, employees, directors, agents, independent contractors, licensors and suppliers (“Customer Indemnitees”) from and against any third-party claims, demands, actions and proceedings, and any resulting liabilities, damages, costs and expenses (including reasonable legal fees and expenses), brought against any Customer Indemnitee, resulting from a breach by Cloudsquare of any of its express warranties hereunder.
Such indemnification, however, excludes claims that arise or result from (A) any use of any Hosted Services by Customer or by any other party in a way that violates this Agreement; (B) modifications to the Hosted Services not made by Cloudsquare; (C) Customer Data; or (D) Third-Party Materials.
Customer shall promptly notify Cloudsquare in writing of any action, threat of suit or claim for arbitration that Customer receives that may qualify for the indemnification provided herein. In such a case, the parties will confer in good faith regarding the appropriate course of conduct, and Cloudsquare will have sole discretion regarding the disposition and any settlement of the matter.
This indemnification is the sole and exclusive remedy available to Customer Indemnitees with respect to any third-party claims relating to this Agreement or to any Hosted Services.
16. General
16.1. Interpretation. In this Agreement, “including” means “including, without limitation” and “days” means “calendar days.”
16.2. Reservation. Nothing in this Agreement precludes or limits Cloudsquare’s rights to market, make available or license any product that Cloudsquare now offers or may in the future offer.
16.3. Nature of Relationship. Each party will act as an independent contractor with respect to this Agreement, and employees and independent contractors of one party will not be considered those of the other. This Agreement creates no agency, partnership, joint venture, other joint relationship or fiduciary relationship. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other. Each party will be solely responsible for payment of all compensation owed to its employees and any independent contractors, as well as all employment-related taxes.
16.4. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement except as this Agreement may expressly provide.
16.5. Assignment. Customer may not assign or transfer any of Customer’s obligations, licenses or rights under this Agreement without Cloudsquare’s prior written consent. Cloudsquare may assign this Agreement freely.
16.6. Force Majeure. Neither party will be held liable for failure to perform any obligation of or delay in performance resulting from or contributing to any cause beyond that party’s reasonable control, including any act of God, act of civil or military authority, act of war or terrorism, act (including delay, failure to act, or priority) of any governmental authority, power outages, civil disturbance, insurrection or riot, sabotage, fire, severe weather conditions, earthquake, flood, strike, work stoppage or other labor difficulty, embargo, delay in transportation or embargoes (any of the foregoing, a “Force Majeure Event”). For avoidance of doubt, Force Majeure Events include any downtime of Hosted Services caused by any hosting provider or other provider of Third-Party Materials used by Cloudsquare. The affected party’s obligations will be suspended solely to the extent caused by the Force Majeure Event and so long as it lasts, and the time for performance of the affected obligation will be extended by the time of the delay that the Force Majeure Event causes. This subsection shall not apply to Customer’s payment obligations hereunder.
16.7. Agreement Binding on Successors. This Agreement shall bind and inure to the benefit of the parties and their heirs, administrators, successors, and permitted assigns.
16.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
16.9. Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
16.10. Entire Agreement. This Agreement is the entire understanding of the parties and supersedes all prior agreements between them concerning its subject matter. Any amendment must be in writing and expressly state that it is amending this Agreement.
16.11. Future Functionality. Customer’s entry into this Agreement is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Cloudsquare regarding future functionality or features.
16.12. Governing Law; Disputes. This Agreement is governed by California law, without regard to its conflict of laws principles. Any dispute regarding this Agreement or action to enforce it must be brought in the state and federal courts of Los Angeles, California. This choice of jurisdiction does not prevent any party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
16.13. Notices. Notices must be in writing. Notices to Cloudsquare under this Agreement are deemed received only when sent by email to billing@cloudsquare.io. Notices to Customer will be deemed received when emailed by Cloudsquare to Customer at any of the Customer email addresses provided by Customer to Cloudsquare at the time of acceptance of this Agreement or of executing a SOW or Order Form incorporating this Agreement.
16.14. Relation to Other Cloudsquare Services, Products and Versions. This Agreement does not provide Customer with access to, licenses to or any other rights relating to Professional Services or to any other Services except those specified in an applicable Order Form or SOW. To the extent that Cloudsquare provides or makes any of the foregoing available to Customer, the parties’ agreement(s) regarding them will be memorialized by one or more separate written agreements and offered pursuant to the other agreements’ terms. Termination or modification of any such other agreement or waiver by Cloudsquare of any rights it holds under any other such agreement will not by itself terminate or modify, or effect a waiver of Cloudsquare’s rights under, this Agreement, and vice versa.
16.15. Marketing Statements; No Guarantee Unless Expressly Incorporated. Any descriptions of refunds, guarantees, “money-back” offers, or similar marketing statements appearing on Cloudsquare’s website or in sales materials are not part of this Agreement and do not create contractual rights unless expressly incorporated into an executed Order Form or written addendum signed by Cloudsquare and Customer.
16.16. Survival. The following sections of this Agreement will survive their termination, in addition to any other section expressly providing for its survival: sections 4.2 (use restrictions); 5 (intellectual property); 8 (license type monitoring and compliance); 9 (confidentiality); 13 (disclaimers); 14 (limitations of liability); 15 (indemnification); 16.5 (assignment); 16.7 (successors); 16.10 (entire agreement); 16.12 (governing law; disputes); 16.14 (other Cloudsquare services, products and versions).