End User License Agreement (EULA)

Last Modified: December 8, 2022

This CloudSoftware End User License Agreement (the “Agreement” or “Master Agreement” or “EULA”) is made and entered into by and between CloudSoftware with offices in Long Valley NJ and the entity agreeing to these terms (“Customer”).

This Agreement is effective as of the date defined in a duly executed Order for Platform Licensing (the “Effective Date”) or other document that incorporates this Agreement. If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; (iii) you agree, on behalf of Customer, to this Agreement; (iv) Customer is entering this Agreement for business purposes only, and not for personal, household, or consumer use, and (v) that Customer is an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity).

Provision of the Services.
1. Services Use. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.
2. Platform. CloudSoftware will provide the Services to Customer.
3. Facilities. CloudSoftware will take commercially reasonable steps to select Data Processors to store and process Application and Customer Data who adhere to reasonable security standards no less protective than the security standards at facilities where CloudSoftware processes and stores its own information of a similar type. Data Processor’s will be selected based on their representation that they implement at least industry standard systems and procedures to (i) ensure the security and confidentiality of an Application and Customer Data, (ii) protect against anticipated threats or hazards to the security or integrity of an Application and Customer Data, and (iii) protect against unauthorized access to or use of an Application and Customer Data.
4. New Applications and Services. CloudSoftware may: (i) make new applications, tools, features or functionality available from time to time through the Services and (ii) add new services to the “Services” definition from time to time (by adding them at the URL set forth under that definition), the use of which may be contingent upon Customer’s agreement to additional terms.
5. Modifications.
  1. To the Services. CloudSoftware may make commercially reasonable updates to the Services from time to time.
  2. To the Agreement. CloudSoftware may make changes to this Agreement, including pricing from after contract expiration.
Payment Terms.
1. Online Billing. CloudSoftware bills monthly licensing fees to a valid credit card at the beginning of each month in advance for the upcoming month.
2. Development billing. Invoices for development work can be paid via check or credit card.
3. Taxes
  1. Customer is responsible for any Taxes, and Customer will pay CloudSoftware for the Services without any reduction for Taxes. If CloudSoftware is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides CloudSoftware with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to CloudSoftware, Customer must provide CloudSoftware with an official tax receipt or other appropriate documentation to support such withholding. If under the applicable tax legislation the Services are subject to local VAT and the Customer is required to make a withholding of local VAT from amounts payable to CloudSoftware, the value of Services calculated in accordance with the above procedure will be increased (grossed up) by the Customer for the respective amount of local VAT and the grossed up amount will be regarded as a VAT inclusive price. Local VAT amount withheld from the VAT-inclusive price will be remitted to the applicable local tax entity by the Customer and Customer will ensure that CloudSoftware will receive payment for its services for the net amount as would otherwise be due (the VAT inclusive price less the local VAT withheld and remitted to applicable tax authority).
  2. If required under applicable law, Customer will provide CloudSoftware with applicable tax identification information that CloudSoftware may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse CloudSoftware for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.
4. Invoice Disputes & Refunds. Any invoice disputes must be submitted prior to the payment due date.
5. Delinquent Payments; Suspension. If Customer is late on payment for the Services, CloudSoftware may suspend the Services or terminate the Agreement for breach.
6. No Purchase Order Number Required. For clarity, Customer is obligated to pay all applicable Fees without any requirement for CloudSoftware to provide a purchase order number on CloudSoftware’s invoice (or otherwise).
Customer Obligations.
1. Compliance. Customer is solely responsible for compliance with the AUP (Acceptable Use Policy). https://www.cloudsoftware.us/acceptable-use-policy
2. Restrictions. Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services.
3. Third Party Components. Third party components (which may include open source software) of the Services may be subject to separate license agreements. To the limited extent a third party license expressly supersedes this Agreement, that third party license governs Customer’s use of that third party component.
Suspension and Removals.
1. Suspension/Removals. If Customer becomes aware that any Application, Clouds, or Customer Data violates the AUP, Customer will immediately remove the relevant Customer Data (as applicable). If Customer fails to comply with the AUP and does not respond to written notice within 24 hours, the application may be suspended,
2. Emergency Security Issues. Despite the foregoing, if there is an Emergency Security Issue, then CloudSoftware may automatically suspend the offending Application, Clouds, and/or Account. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or resolve the Emergency Security Issue. If CloudSoftware suspends an Application, Clouds, or the Account, for any reason, without prior notice to Customer, at Customer’s request, CloudSoftware will provide Customer the reason for the suspension as soon as is reasonably possible.
Intellectual Property Rights; Use of Customer Data; Feedback.
1. Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and CloudSoftware owns all Intellectual Property Rights in the Services, Application, Platform and Software.
2. Use of Customer Data. CloudSoftware will not access or use Customer Data, except as necessary to provide the Services to Customer.
Deprecation of Services
1. Discontinuance of Services. CloudSoftware may discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
Confidential Information.
1. Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
2. Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and Customer End Users’ use of the Services.
Term and Termination.
1. Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated or until all terms of any Order expire and are not renewed.
2. Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
3. Termination for Convenience. Customer may stop using the Services at any time unless a time frame is otherwise specified in an Order.
4. Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees owed by Customer to CloudSoftware are immediately due upon receipt of the final electronic bill; (iii) Customer will delete the Software, any Application, Installation, Clouds, and any Customer Data; and (iv) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
Publicity. Customer is permitted to state publicly that it is a customer of the Services, consistent with the Trademark Guidelines.
1. Nondisparagement. Both parties expressly acknowledge and agree that neither party will make, or induce or assist others in making, either directly or indirectly, any public or private statements, comments or communications in any form that would constitute libel, defamation, slander, or disparagement of the other party, its employees, officers or directors. This prohibition includes any negative statements, comments or communications that are either derogatory or detrimental to the business reputation of the other party. However, this prohibition shall not apply to any truthful testimony provided under oath in connection with a legal proceeding arising under this Agreement. Failure to adhere to the terms of this Section constitutes a material breach of this Agreement. In the event that either party violates the provisions of this Section, the nonbreaching party shall be entitled to injunctive relief because damages for a violation of this Section would be too difficult to accurately measure and in any litigation over the breach the nonbreaching party shall be reimbursed by the breaching party for all of its costs and reasonable attorney fees in connection with said breach.
Representations and Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. CloudSoftware warrants that it will provide the Services in accordance with the applicable SLA (if any).
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUDSOFTWARE AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. NEITHER CLOUDSOFTWARE NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE PLATFORM NOR THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
Limitation of Liability.
1. Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR CLOUDSOFTWARE SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
2. Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR CLOUDSOFTWARE SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO CLOUDSOFTWARE UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
3. Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, indemnification obligations, or Customer’s payment obligations.
Miscellaneous.
1. Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
2. Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
3. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
4. No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
5. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
6. Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
7. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
8. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
9. Amendments. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
10. Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order, SKU Service Specific Terms then this the Platform Terms of Service.
11. Definitions.
  1. “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
  2. “Allegation” means an unaffiliated third party’s allegation.
  3. “Application(s)” means any web or other application Customer creates using the Platform or Services, including its metadata and any source code written by Customer to be used with the Services, or hosted in an Installation. An Application can only be accessed by a Customer End User if it is installed onto an Installation.
  4. “AUP” means the acceptable use policy set forth here for the Services: https://www.cloudsoftware.us/acceptable-use-policy
  5. “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
  6. “Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer’s Confidential Information.
  7. “Control” means control of greater than fifty percent of the voting rights or equity interests of a party.
  8. “Customer Data” means content provided to CloudSoftware by Customer (or at its direction) via the Services licensed by the Customer. Customer Data includes the metadata, user data and any custom code that comprise any Application created by Customer using the Services.
  9. “Customer End Users” means the individual’s whom the Customer permits and/or enables to use the Application.
  10. “Data Processor” and “Data Controller” have the meanings set forth in Section 1 of this Agreement.
  11. “Emergency Security Issue” means either: (a) Customer’s or Customer End Users’ use of the Services in violation of the AUP, which could disrupt: (i) the Services; (ii) other customers’ or their customer end users’ use of the Services; or (iii) the network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
  12. “Feedback” means feedback or suggestions about the Services provided to CloudSoftware by Customer.
  13. “Fees” means the applicable fees for each Service and any applicable Taxes. The Fees for each Service are set forth here: https://www.cloudsoftware.us/legal.
  14. “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
  15. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.
  16. “Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
  17. “Installation” means a virtual machine installation, configured and managed by Customer using the Admin Platform, which runs on the Services. Installations are more fully described in the Documentation. An Installation configured in either a Development, Test or Production role and with an installed Application is necessary for a Customer End User to access the Application.
  18. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
  19. “Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
  20. “Order” means a separate Agreement that details a purchase of specific Services by SKU and incorporates Service Specific Terms by SKU, and is hereby incorporated into this Agreement.
  21. “Clouds” means a grouping of computing, storage, and API resources for Customer, and via which Customer may use the Services. Clouds are more fully described in the Documentation.
  22. “Service Specific Terms” means the terms specific to one or more Services found at https://www.cloudsoftware.us/legal.
  23. “SLA” means each of the current service level agreements as determined by an Order and detailed in their Service Specific Terms at: https://www.cloudsoftware.us/legal.
  24. “Taxes” means any duties, customs fees, or taxes (other than CloudSoftware’s income tax) associated with the purchase of the Services, including any related penalties or interest.
  25. “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or governmental tribunal (including any appellate proceeding).