General Terms and Conditions for Software License
Important: Please carefully read the General Terms and Conditions (the "Terms and Conditions") for the Software ("Software") License(s) Agreement ("Agreement") from KloudData Inc. ("KloudData") before clicking on the "Accept" button. By clicking on the "Accept" button, you ("Customer"), are agreeing to the terms and conditions of this Software, and KloudData will authorize the Customer to download the Software.
1 Introductions and Definitions
1.1 The Terms and Conditions including appendices, apply between KloudData Inc. and the Customer, with regard to the KloudData Software referred to in the Order Form as defined below.
The Customer confirms that it understands and agrees to be bound by these Terms and Conditions with respect to all use and handling of the Software.
1.2 In the Terms and Conditions "Order Form" shall mean any ordering document, accepted by KloudData, including any appendices used by the Customer to order a Software or services from KloudData.
1.3 The Order Form contains a description of the "Software" ordered, which is a computer program in machine-readable form including specifications, documentation and material provided by KloudData. The Software includes each Software Program and any updated, improved or otherwise modified version(s) thereof furnished by KloudData pursuant to a product quotation or an order from Customer for Customer's sole and exclusive use. The Order Form also specifies the license fee for the Software.
2 Grant of License
The Customer obtains a non-exclusive right to use the Software ("License").
3 License Fee
The License is conditioned upon the Customer having paid the license fee stated in the Order
Form or otherwise agreed in writing between KloudData and the Customer. The license fee is exclusive of any taxes or public duties and fees. All such taxes, duties and fees shall be paid by the Customer.
4 Scope of the License
4.1 The Customer may use, access, display, run or otherwise interact with one copy of the Software, or any prior version for the operating system or web browser, on a single computer, workstation, terminal, handheld PC, tablet, smart phone, or other digital electronic device ("computer"). If the License is a single user-license, the Customer may use only the licensed copy of the Software for processing of data. If the License is a several user-license, the Customer may use as many copies of the Software as corresponds to the number of user-licenses.
4.2 The Customer may use the software installed in the cloud based on a per-user subscription license or may store or install a copy of the Software on the cloud or an internal network server, used solely to run the Software on the Customer's other computers over an internal network; however the Customer must acquire and dedicate a license for each separate computer that may access the Software from the storage device. A single-user license for the Software may not be shared or used concurrently on different computers.
4.3 The Customer shall introduce routines and control functions in order to ensure that the number of computers that may access the Software do not exceed the number of Licenses granted according to the Order Form.
4.4 Copies of the Software may be made for safety or archival purposes only, and for no other purpose whatsoever. These Terms and Conditions shall apply also to such copies.
4.5 Without KloudData's prior written consent, the Customer is not entitled to use, copy or in any other way transfer or use the Software in any manner except as stated in the Order Form or these Terms and Conditions. Consequently, the Customer is not entitled to decompile or disassemble the Software or information or material connected to the Software, except to the extent expressly permitted by mandatory law.
4.6 Marking and/or information regarding patent, copyright or copyright notices in software or computer media through which the Software is accessible to the Customer may not be removed, changed or modified in any way. The same applies to corresponding marking of all documentation provided by KloudData.
4.7 Customer is not entitled to grant any sublicenses, lease, lend or in any way let anyone else, whether directly or indirectly or against compensation or free of charge, use or in any way dispose of the Software; provided, however, that nothing herein shall prevent Customer from using the Product in its ordinary course of its business.
5 KloudData's right to the Software License
5.1 KloudData owns the Software, including the copyright and/or as applicable, patent rights to the Software.
5.2 The License does not include any transfer to the Customer of KloudData's ownership of the
Software (including the computer media through which the Software is made available), such as copyrights, or as applicable, patents rights.
The Software shall be delivered in accordance with what is stated in the Order Form. KloudData is not responsible for the installation of the Software, unless otherwise agreed between the parties in writing. If KloudData agrees to assist with installation of the Software, Customer shall pay for this in accordance with KloudData's price list for such services in force at the time of the installation.
7.1 Examination of the Software and claims at delivery, the Customer shall examine the functionality and quality of the Software. If the Customer concludes that the Software deviates from the agreed specifications or requirements for the Software (hereinafter referred to as "Defects"), the Customer shall notify KloudData in writing within thirty (30) days of delivery, with all available details regarding the alleged Defect. Failing this, the Customer loses the right to claim any support or remedy with respect to any Defects which could have been discovered within such 30-day period.
The Customer's right to claim any support or remedy in accordance with Section 7.2 - 7.4 thereof is further conditioned on full compliance with each and all of the following provisions:
(i) The Customer shall have utilized the Software in the work environment prescribed by KloudData and according to manuals and all other instructions and directions of KloudData,
(ii) The Customer shall have utilized the Software with machine equipment and operative systems stated in the Order Form or in the product specifications provided by Customer and accepted by KloudData,
(iii) It can be shown that the Defect has occurred in an unaltered most current version of the Software,
(iv) Customer at its own costs shall have provided KloudData with all necessary information and/or material, in order for KloudData to verify the alleged Defect, and
(v) The Defect shall have occurred within one hundred eighty (180) days from delivery of the Software.
7.2 Support - KloudData will, subject to Section 7.1 hereof, free of charge provide the Customer with appropriate support in case of Defects of the Software The support will be provided within reasonable time from the date Customer has notified KloudData in writing of the Defect. At the request of the Customer, KloudData may, at its sole discretion, provide support not related to any Defects. The Customer shall pay KloudData for such support in accordance with KloudData's price list in effect from time to time.
7.3 Remedy in case of Defects
7.4 In case of a Defect, KloudData will, subject to Section 7.1 hereof, free of charge either, at the option of KloudData, (i) remedy the Defect, (ii) replace the Software, or (iii) refund the license fee.
Limited warranty and limitation of liability KloudData represents and warrants that the Software will be free from defects in material and workmanship for a period of one-hundred-eighty (180) days after delivery.
EXCEPT FOR THIS WARRANTY, KLOUDDATA MAKES NO, AND HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE
OF DEALING OR USAGE OR TRADE OR ANY OTHER MATTER. NO EMPLOYEE, REPRESENTATIVE OR
AGENT OF KLOUDDATA HAS ANY AUTHORITY TO BIND KLOUDDATA TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY EXCEPT AS STATED IN THIS SECTION 7.4
KloudData's sole obligation in case of a breach of warranty under this Section 7.4 hereof shall be to either, as set forth in Sections 7.2 and 7.3 hereof.
UNDER NO CIRCUMSTANCES SHALL KLOUDDATA HAVE ANY LIABILITY TO THE CUSTOMER OR ANY OHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTYOR OTHER CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LOST GOODWILL, LOSS OF INVESTMENT OR OTHER LOSSES.
KloudData shall not be liable at all for the functionality or quality of plug-ins or other auxiliary programs designed to work together with the Software, or for the interoperability of such programs together with the Software.
8 Term and Termination
8.1 Period of validity of the License - Unless otherwise agreed in writing between the parties, after the license fee has been paid the License remains in force, subject to Section 8.2 hereof, until terminated in writing by the Customer with three (3) month notice of termination
8.2 KloudData's right of termination - KloudData shall have the right to terminate the License with immediate effect (and claim damages as set forth in Section 11 hereof) if the Customer should breach any of its material obligations under these Terms and Conditions.
8.3 The Customer shall not be entitled to any refund of the license fee irrespective of the reason for termination of the License.
9 Return of the Software
In case of termination of the License, irrespective of the reason for such termination, the Customer shall immediately return to KloudData the Software and all copies, parts and documents related thereto (with exception for archived copies archived by the Customer in accordance with any applicable law). In connection therewith, the Customer shall confirm in writing that it has fully complied with this obligation.
The Software contains business and professional know-how and other confidential information belonging to KloudData that have been disclosed and made accessible to third parties only through the License. The Customer is obliged not to make the Software available to third parties without KloudData's written permission, and to take all appropriate measures to prevent disclosure to third parties of such know-how and confidential information. The Customer shall ensure that its employees, agents and other representatives are informed of and complies with this confidentiality obligation as well as the obligations regarding the rules for the use of the Software as set forth in Section 4. During the term of the License, the Customer shall use, store and maintain the Software in a manner that will prevent any dissemination of know-how and confidential information. The confidentiality obligation will remain in force after the expiry of the License and these Terms and Conditions.
If the Customers shall breach any of the material provisions of these Terms and Conditions, the Customer shall fully compensate KloudData for any loss incurred by KloudData as a result thereof.
12 Force Majeure
12.1 KloudData shall not be liable to the Customer for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of force majeure.
12.2 Events of force majeure are events beyond the control of KloudData which occur after the date that these Terms and Conditions has entered into force and which were not reasonably foreseeable at that time and whose effects are not capable of being overcome without reasonable expense and/or loss of time. Events of force majeure shall include (without being limited to) war, civil unrest, blockades, boycotts, strikes, lock-outs and other general labor disputes, acts of government or public authorities, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents, fire, explosions and general shortages of energy, failures in external network, software defects or inefficiencies (other than with respect to the Software), or other defects in computer equipment. Strikes, lock-outs, boycotts or blockades are events of force majeure even if KloudData has taken the action itself or is the subject of the action.
13.1 Any dispute, controversy or claim arising out of or in connection with these Terms and Conditions, or the breach, termination or invalidity thereof, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Each of the parties hereto consents to the exclusive jurisdiction and venue of the courts of Alameda County, California.