MAKE SURE YOU READ THESE TERMS AND CONDITIONS (INCLUDING ANYTHING THEY REFERENCE) AND THE ORDER. THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS TO USE THE CloudKeyz SYSTEM AND RECEIVE THE CloudKeyz SERVICES.
In addition to the terms otherwise defined in this Agreement or in an Order, the following terms have the meanings set forth below:
A.1 Customer Data - means any data or information that is provided by or stored by a User via the CloudKeyz Services, including, but not limited to, Personal Data.
A.2 Defect - means a material defect caused by defective material or workmanship resulting in a failure of the Hardware to substantially conform to the specifications provided in hardware documentation.
A.3 Hardware - means hardware and/or equipment that CloudKeyz supplies in connection with the “CloudKeyz System” as specified in the applicable Order, such as sensors, controllers, etc. but does not include any hardware or equipment not specifically set forth in an Order.
A.4 Improper Use - means (1) use of a CloudKeyz System, or in the case of Hardware, use, storage or treatment of a Hardware device that could reasonably be foreseen as resulting in, or (2) conditions occurring to a Hardware device that result in: defects to such CloudKeyz Service or Hardware device, including (a) improper operation, (b) any combination, operation or use with equipment, software, services, technologies or processes not furnished or approved by CloudKeyz; (c) harmful exposure to corrosive or other chemicals, electric shock, excessive temperature, impact or vibration, water, weather conditions or other elements; (d) involvement in any Force Majeure Condition; and (e) tampering, alteration, improper Installation, or repair by any party other than one authorized by CloudKeyz.
A.4 Laws - means all applicable federal, state, and local statutes, rules, regulations, and ordinances.
A.6 Order(s) - means the ordering documents sometimes referred to as “Pricing Proposal” for purchases by Customer under this Agreement, that are entered into between Customer and CloudKeyz from time to time.
A.8 Personal Data - means all information relating to a person that identifies such person or could reasonably be used to identify such person, including but not limited to, first and last name, addresses, email address, telephone number.
A.9 Professional Services - means all software and/or hardware implementation, training, configuration, consulting and professional services performed by or on behalf of CloudKeyz for Customer pursuant to the applicable Order
A.10 CloudKeyz Services - means the provision of the CloudKeyz System, Support Services, and Professional Services, as more specifically set forth in the applicable Order.
A.11 CloudKeyz System -means the CK Cloud-Based Mobile, Web Software Service working in conjunction with CLoudKeyz Hardware components.
A.12 Software - means CloudKeyz’s proprietary SaaS platform and user interfaces as set forth in an Order and made available to Customer by CloudKeyz as part of the CloudKeyz System. The Software may contain third-party components licensed to CloudKeyz.
A.13 Subscription Term - means the initial or any subsequent Support Services and the technical support services provided to Customer during the Subscription Term pursuant to the CloudKeyz Support Policy.
A.14 Taxes - means any duties, customs fees, or taxes (other than CloudKeyz’s income tax) associated with the provision of the CloudKeyz Services, including any related penalties or interest.
A.15 User Guide -means the applicable and most current technical instructions for the CloudKeyz System ordered by Customer’s and available online at https://www.CloudKeyz.com, as may be amended by CloudKeyz from time to time.
A.16 Users - means individuals who are authorized by Customer to use the CloudKeyz System, including but not limited to, Customer employees, administrators, consultants, contractors and agents.
B.1 License Grant
Subject to the terms and conditions of this Agreement, CloudKeyz hereby grants to Customer and Customer hereby accepts from CloudKeyz a limited, non-exclusive, revocable, non- transferable (except as permitted in Section L.2), non-sublicensable right during the applicable Subscription Term to allow Users to access and use the CloudKeyz System in accordance with the scope of use specified in this Agreement and the applicable Order.
B.2 Use limitations
Customer's right to use the CloudKeyz System is subject to and contingent upon Customer's compliance with the limitations on Customer's use of the CloudKeyz System specified in this Agreement, the User Guide and the applicable Order.
B.3 Reservation of Rights
CloudKeyz and its licensors retain all right, title, and interest to all software, products, works, and other intellectual property created, used, or provided by CloudKeyz for the purposes of this Agreement, including, but not limited to, the Software, User Guide and any modifications derivatives and changes to such intellectual property.
B.4 Customer Data
CloudKeyz hereby acknowledges and agrees that all rights, title and interest in and to Customer Data are and will remain the property of Customer. Customer hereby grants to CloudKeyz, throughout the Term of this Agreement and after the term as necessary for any of CloudKeyz's post-termination obligations to Customer, the necessary rights or license to use Customer Data solely as necessary for CloudKeyz to perform its obligations under this Agreement. CloudKeyz agrees to secure Customer Data consistent with industry standards for such Customer Data and to comply with applicable privacy Laws with respect to Personal Data.
If Customer provides any feedback to CloudKeyz concerning the features, functionality or performance of the CloudKeyz System or CloudKeyz Services (including identifying potential errors and improvements) (“Feedback”), Customer hereby grants to CloudKeyz a perpetual, unlimited right to use the Feedback for any purposes related to the CloudKeyz Systems and/or CloudKeyz Services without payment or restriction.
For each request for Professional Services, the parties will reference such Professional Services in the Order and may specify the scope of work and specific terms of the project(s) to be performed by CloudKeyz.
Customer represents, covenants, and warrants that Customer will use the CloudKeyz Services only in compliance with CloudKeyz’s standard published policies then in effect and all Laws. Customer will (i) be responsible for Users' compliance with this Agreement; (b) maintaining the confidentiality of the administrator and User logon identifications, passwords, and account information; (c) use commercially reasonable efforts to prevent unauthorized access to, or use of, the CloudKeyz System and immediately notify CloudKeyz in writing of any such unauthorized access or use or violation by Customer or its Users of this Agreement and/or an Order; (iv) use the CloudKeyz System only in accordance with the User Guide; and (v) use each CloudKeyz System in compliance with all applicable Laws and CloudKeyz’s standard published policies then in effect. If there is unauthorized use of any CloudKeyz System by anyone who obtained access to the CloudKeyz System directly or indirectly through Customer, the Customer will take all steps necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by CloudKeyz to prevent or terminate unauthorized use of the CloudKeyz System. Customer may not (1) make the CloudKeyz System available to anyone other than Users; (2) use the CloudKeyz System to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (3) use the CloudKeyz System to store or transmit malicious code; (4) interfere with or disrupt the integrity or performance of the CloudKeyz System; or (5) attempt to gain unauthorized access to the CloudKeyz System or its related systems or networks. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable Law, Customer will not, and will not permit or authorize third parties to directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know- how or algorithms relevant to the Secure System or any software, documentation or data related to the CloudKeyz Services; modify, translate, or create derivative works based on the CloudKeyz Services (except to the extent expressly permitted by CloudKeyz or authorized within the CloudKeyz System); use the CloudKeyz System for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Customer hereby agrees to defend, indemnify and hold CloudKeyz harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of CloudKeyz Services. Although CloudKeyz has no obligation to monitor Customer's use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
E.1 Technical Requirements
Throughout the Term of this Agreement, Customer will use the CloudKeyz Services in accordance with the applicable specifications set forth in the User Guide.
E.2 Customer Provided Equipment
Except as otherwise set forth in an Order, the Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the CloudKeyz System, including, without limitation, modems, hardware, servers, software, operating systems, networking, internet connectivity, web servers and the like (collectively, “Equipment”). Customer will also be responsible for maintaining the security of the Equipment, Hardware Customer account, passwords (including but not limited to administrative and user passwords) and files, and for Customer’s use of the CloudKeyz System, Customer’s account, the Equipment or Hardware, with or without Customer’s knowledge or consent. If the Equipment does not permit, or restricts access to, the Customer Systems and/or the CloudKeyz Services, Customer acknowledges that the CloudKeyz Services may be impacted as a result and CloudKeyz will not be responsible for any delays or damages resulting from such inability to access the Customer Systems or CloudKeyz Services to the extent caused by the use or failure of any Equipment.
E.3 Access to Customer Systems
Customer acknowledges and agrees that in order to provide the CloudKeyz Services, CloudKeyz must access Customer’s systems, Equipment and Customer’s use of the CloudKeyz Services. Customer expressly consents and grants CloudKeyz and its employees, agents, representatives, independent contractors, and third party service providers’ permission to access and use any Customer System to the extent necessary to implement the CloudKeyz System and/or provide the CloudKeyz Services.
Customer will pay the fees and charges as set out in an Order (“Fees”) and any applicable Taxes. If Customer’s use of the Services exceeds the service capacity set forth on the Order or otherwise requires the payment of additional fees (per the terms of this Agreement or the applicable Order), Customer will be billed for such usage and Customer agrees to pay such additional fees. CloudKeyz reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of a Subscription Term or then‑current renewal Subscription Term, upon 30 days prior notice to Customer (which may be sent by email). If Customer believes that CloudKeyz has billed Customer incorrectly, Customer must contact CloudKeyz no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to CloudKeyz’s customer support department at email@example.com
F.2 Timely Payment
In the event that any payment due under this Agreement or an Order is overdue, CloudKeyz reserves the right to suspend the rights granted to Customer under this Agreement and/or an Order until such delinquency is corrected. Customer will pay all of CloudKeyz’s costs of collection including, without limitation, reasonable attorneys’ fees and costs, if any amounts payable under this Section require collection efforts.
Customer is responsible for collecting, withholding, reporting, and remitting any Taxes to the appropriate tax authority, and Customer will pay CloudKeyz for the CloudKeyz Services without any reduction for Taxes. If for any reason, CloudKeyz is obligated to collect or pay Taxes related to the CloudKeyz Services, the Taxes will be invoiced to Customer, unless Customer provides CloudKeyz with a valid tax exemption certificate authorized by the appropriate taxing authority. CloudKeyz is not obligated to, nor will it determine, whether taxes apply, or calculate, collect, report, or remit any taxes to any tax authority arising from any transaction. All federal, state, local, value-added, transfer, sales and use taxes ("Taxes") arising out of this Agreement will be paid by the party required to pay such taxes under applicable Law. The party that is required by Law to make the filings, reports or returns and to handle any audits or controversies with respect to any such taxes will do so, and the other party will cooperate with to the extent reasonably necessary.
Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of this Agreement.
G.2 CloudKeyz Services
CloudKeyz will make the CloudKeyz System available and support the CloudKeyz System pursuant to the applicable Order and User Guide in accordance with the Support Services policy and the CloudKeys Service Level Agreement in a manner consistent with general industry standards. If Customer is reasonably dissatisfied with the support provided for, or hosting of, the CloudKeyz System under an applicable Order, Customer's sole and exclusive remedy and CloudKeyz's sole obligation for a breach of the warranties in this Section, will be the correction or re-performance of the nonconforming portion of the CloudKeyz System. If after repeated efforts, neither remedy is reasonably commercially available, either party may cancel the applicable Order and CloudKeyz will refund Customer, a pro-rata portion of the Fees that have been paid for the CloudKeyz System under the applicable Order but not used by Customer from the date of notice by Customer of such breach and Customer will be relieved of any further payment obligations under the applicable Order. Cancellation of one Order under this Agreement will not result in the cancellation of other Orders.
CloudKeyz warrants, for a period of one (1) year from shipment of Hardware (“Warranty Period”), which period will not be extended by any Hardware repair or replacement, that it will repair or replace, at its discretion, Hardware, by CloudKeyz, which have Defects, provided that Customer delivers proper notification to CloudKeyz during the Warranty Period. Such warranty shall not apply to Hardware that CloudKeyz reasonably determines is not functioning properly as a result of (a) Customer’s Improper Use or (b) a Force Majeure Condition; or Hardware installations performed by a party other than a CloudKeyz authorized, licensed designated installer. If Customer believes a Defect has occurred, Customer will: work in good faith with CloudKeyz’s Support Team to evaluate, troubleshoot and test any Hardware that appears to have a Defect, and if the Support Team determines that the Hardware appears to have a warranted Defect requiring CloudKeyz’s physical intervention: uninstall the affected Hardware, attach the Return Material Authorization Number (“RMA”) assigned by the Support Team in a clearly visible location on a package that includes the affected Hardware, and, return such Hardware, securely packaged, to the address designated by CloudKeyz for repair with the assigned RMA clearly visible on each shipping form and carton. Hardware returned to CloudKeyz for repair under warranty that CloudKeyz reasonably determines not to be covered by this warranty will be charged to Customer at a flat, reasonable diagnostic/repair rate established by CloudKeyz. Repair services for Hardware that is outside the Warranty Period may not be available and replacement may be required. Repaired or replaced Hardware will be warranted for the remainder of the original Warranty Period or 30 days whichever is longer. Notwithstanding the above, Customer is responsible for any charges or costs to uninstall, install or replace Hardware under this warranty in addition to actual shipping and return shipping charges.
G. 4 Professional Services
For a period of thirty (30) days from performance of Professional Services, CloudKeyz warrants that the Professional Services have been performed in a good and workmanlike manner. If during such 30 days period, Customer notifies CloudKeyz of a breach of this Professional Services warranty, Customer's sole and exclusive remedy and CloudKeyz's sole obligation for a breach of this warranty will be the correction or re-performance of the nonconforming Professional Services. If after repeated efforts, neither remedy is reasonably commercially available, CloudKeyz will refund Customer, the Fees paid for the non-compliant Professional Services.
G. 5 Exclusions
The warranties in this Section G exclude non-performance issues that result from third-party hardware or firmware malfunction, including but not limited to the Equipment, oversight or defect; software not developed by CloudKeyz; incorrect data or incorrect procedures used or provided by Customer or a third party; substantial changes or CloudKeyz’s inability to access the CloudKeyz Services due to factors outside of CloudKeyz’s control, that makes it impossible to perform the CloudKeyz Services; or defects or problems that are outside the reasonable control of CloudKeyz. Customer will reimburse CloudKeyz for its reasonable time and expenses for any Services provided at Customer’s request to remedy excluded non-performance issues. The warranty in Section G will not apply if Customer or any third party modifies any portion of the CloudKeyz System and/or modifies Customer’s system in any way that adversely affects the functionality or appropriateness of the CloudKeyz System.
EXCEPT AS SET FORTH IN THIS SECTION G, THE CloudKeyz SYSTEM AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR AN ORDER ARE PROVIDED ON AN “AS IS” BASIS, AND CloudKeyz AND ITS AFFILIATES, AGENTS, SUPPLIERS AND SERVICE PROVIDERS (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO ANY CloudKeyz SYSTEM WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH THE CloudKeyz SYSTEM IS ACCURATE, COMPLETE OR FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; (C) WILL IN NO EVENT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION IN, OR LOSS, INJURY OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS, OR INTERRUPTIONS OF THE CloudKeyz SYSTEM OR SERVICES. CloudKeyz EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S USE OR INABILITY TO USE THE SECURE SYSTEM OR SERVICES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES. IN SUCH JURISDICTIONS, CloudKeyz’s LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
CloudKeyz shall indemnify defend and hold Customer harmless from and against any and all claims, demands, suits, or proceedings ("Claim") made or brought against Customer by a third party alleging that the use of any CloudKeyz System as permitted hereunder infringes or misappropriate the intellectual property rights of a third party; provided, that Customer (i) promptly gives CloudKeyz written notice of the Claim; (ii) gives CloudKeyz sole control of the defense and settlement of the Claim (provided that CloudKeyz may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (iii) provides to CloudKeyz all reasonable assistance, at CloudKeyz's expense.
H.2 Exclusions from Obligations
CloudKeyz will have no obligation under this Section H for any infringement or misappropriation to the extent that it arises out of or is based upon (i) use of a CloudKeyz System in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (ii) use of an CloudKeyz System by Customer for purposes not intended or outside the scope of the license granted to Customer; (iii) Customer's failure to use a CloudKeyz System in accordance with instructions provided by CloudKeyz, if the infringement or misappropriation would not have occurred but for such failure; or (iv) any modification of an CloudKeyz System not made or authorized in writing by CloudKeyz where such infringement or misappropriation would not have occurred absent such modification.
H.3 Mitigation of Infringement Action
If Customer's use of any CloudKeyz System is, or in CloudKeyz's reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under this Section H, then CloudKeyz will either: (i) procure the continuing right of Customer to use the CloudKeyz System; (ii) replace or modify the CloudKeyz System in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, CloudKeyz is unable to do either (i) or (ii), CloudKeyz will terminate Customer's right with respect to the CloudKeyz System and refund to Customer all unused Subscription Fees pre-paid by Customer with respect to such CloudKeyz System.
H.4 Limited Remedy
This Section H states CloudKeyz's sole and exclusive liability, and Customer's sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by any CloudKeyz System.
I.1 Confidential Information
Each party may provide (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain confidential, proprietary, and trade secret business or technical information of the Disclosing Party in connection with or in performance of the services under this Agreement and/or the Order (“Confidential Information”). Whether Confidential Information is disclosed orally or in writing, such information will be considered to be confidential if it is marked confidential, if it is accompanied by a verbal indication that it is confidential, or to the extent the nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential.; provided, however, Confidential Information will not include, and this Section will not apply to, any information that the Receiving Party can establish: (a) was, at the time of disclosure, generally available to the public through no fault of the Receiving Party; (b) was in the Receiving Party’s possession on the Effective Date and was not obtained from the Disclosing Party; or (c) was lawfully received from a third party who rightfully acquired it and did not obtain it in violation of any confidentiality agreement. For purposes of clarity, the CloudKeyz System will constitute CloudKeyz’s Confidential Information without the requirement of marking it as Confidential Information
I.2 Confidentiality Obligations; Permitted Disclosures
The Receiving Party will preserve the confidentiality of all Confidential Information that is provided by the Disclosing Party, and will not, except as expressly permitted in this Agreement, disclose or make available Confidential Information to any person or use for its own or any other person’s benefit, other than in furtherance of performance of each party’s respective obligations under this Agreement. The Receiving Party will exercise a commercially reasonable level of care to safeguard Confidential Information against improper disclosure or use but not less than it uses for its own confidential information. The Receiving Party may disclose the Confidential Information of Disclosing Party to employees, agents, or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement or who have a need to know such information for the Receiving Party’s internal business purposes and, in each case, who are bound by an obligation to maintain such information in confidence. Receiving Party will be liable for the acts and omissions of the Representatives to the same extent as Customer would be liable if such acts or omissions were by Customer. A Receiving Party may disclose Confidential Information of Disclosing Party in response to a subpoena, court order, or other legal process served upon the Receiving Party or where Laws require the disclosure of such Confidential Information; provided that, if not prohibited under Laws, the Receiving Party will give reasonable prior notice to the Disclosing Party sufficient to permit the Disclosing Party to seek a protective order if it so chooses and the Receiving Party discloses only that information that is legally required to be disclosed.
I.3 Return of Materials
Upon the request of either party, and upon any termination or expiration of this Agreement, each party will return all Confidential Information to the other and erase and remove all copies of all Confidential Information from any computer equipment and media in such party’s possession, custody, or control.
J.1 Initial Term; Renewal
This Agreement will commence upon the Effective Date and continue for as long as there is an Order still in effect unless this Agreement is terminated earlier as set forth below (“Term”).
J.2 Suspension or Termination of Orders
An Order may be terminated by either party prior to its expiration: (i) by notice if the other party has materially breached the Agreement and the other party has not cured such material breach within 30 days of receipt of notice to the party identifying such breach; (ii) continuation of a Force Majeure Event that prevents CloudKeyz from delivering the CloudKeyz Services for a period of thirty (30) days or longer; (iii) by notice if the other party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against the other party, or if a receiver or trustee is appointed for all or any part of the property or assets of the other party (each a “Bankruptcy Event”); or (iv) by mutual agreement of the parties. If all Orders have been terminated or have expired, either party may terminate this Agreement upon notice to the other party and compliance with this Section J. CloudKeyz may suspend provision of CloudKeyz Services pursuant to an Order immediately: (i) in the event of a security incident involving Customer until such time as Customer is able to certify to CloudKeyz, in CloudKeyz’s reasonable discretion, that the causes of such security incident have been remedied in full; or (ii) if Customer fails to timely pay any CloudKeyz invoice until Customer pays all amounts then due and owing pursuant to such Order and this Agreement. If this Agreement or an Order is terminated by: (a) CloudKeyz for Customer’s material, uncured breach, or (b) Customer for any reason not specified in Section J.2(a), Customer will pay all amounts accrued and owed to CloudKeyz for all CloudKeyz Services through the effective date of termination or expiration, plus the recurring Fees remaining in the Initial Term, within thirty (30) days of termination.
J.3 Effect of Termination
Upon the termination or expiration of this Agreement, including all Orders, for any reason: (a) CloudKeyz’s obligations under this Agreement will cease; (b) Customer will cease all use of the CloudKeyz Services; and (c) each party will return any Confidential Information if requested by the other party in accordance with Section H.3. If an Order is terminated, then the foregoing will apply only to those matters relevant to such Order.
Those provisions of this Agreement which by their nature are meant to survive termination or expiration of this Agreement will survive termination or expiration of this Agreement including, but not limited to Sections A, B.5, F, G.6, H, I, J.3, J.4, K and L.
K.1 Disclaimer of Indirect Damages
NOT WITH STANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, CloudKeyz DOES NOT HAVE ANY LIABILITY TOWARDS CUSTOMER FOR ANY DAMAGES CAUSED BY (i) THE USE OR INABILITY TO USE THE CloudKeyz SYSTEM OR SERVICE, (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, (iii) ACCURACY OF DATA TRANSFERRED TO ANY OTHER SOFTWARE OR SERVICE, OR (iv) INSTANCES IN WHICH CUSTOMER DATA STORED OR COMMUNICATED THROUGH THE CloudKeyz SYSTEM IS ACCESSED BY THIRD PARTIES THROUGH ILLEGAL OR ILLICIT MEANS; INCLUDING WITHOUT LIMITATION SITUATIONS IN WHICH CUSTOMER DATA IS ACCESSED THROUGH THE EXPLOITATION OF SECURITY GAPS, WEAKNESSES OR FLAWS THAT MAY EXIST. EXCEPT FOR BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER INCURRED BY A THIRD PARTY OR CUSTOMER, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
K.2 Cap on Liability
EXCEPT FOR LIABILITY ARISING OUT OF BREACHES OF SECTION C, SECTION E OR SECTION F, A PARTY’S INDEMNIFICATION OBLIGATION OR BREACH OF A CloudKeyz’s CONFIDENTIALITY OBLIGATIONS WHICH WILL BE SUBJECT TO A CAP OF TWICE THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT, IN NO EVENT WILL CloudKeyz’s AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT.
K.3 Independent Allocations of Risk
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CloudKeyz TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
L.1 Independent Contractors; No Third-Party Beneficiary
The parties and their respective personnel are and will be independent contractors and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. This Agreement is for the benefit of the parties only, and there are no third-party beneficiaries of this Agreement.
Neither party may assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, without the consent of the other party; provided, however, that either party may assign this Agreement to a successor of that party as a result of a merger, reorganization or sale of all or substantially all of the assets to which this Agreement pertains. Any attempted assignment in violation of the foregoing is void and will be a material breach of this Agreement. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of the parties’ respective successors, heirs and assigns.
L.3 Force Majeure
Neither party is responsible for delays or failures in performance (other than payment) resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes and other disasters, interruption or failure of telecommunications or digital transmission links, hostile network attacks, network congestion, or other failures beyond the reasonable control of such party (each, a “Force Majeure Event”). Neither party is entitled to relief under this Section to the extent that any event otherwise constituting a Force Majeure Event results from the negligence or fault of such party or its employees or agents.
No waiver of any provision hereof or of any right or remedy hereunder will be effective unless in writing and signed by the party against which such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder will constitute a waiver of any other right or remedy, or future exercise thereof.
If any provision of this Agreement is determined to be invalid under any Laws or by a governmental, legal, or regulatory authority with jurisdiction over the parties, it is to that extent to be deemed omitted, and the balance of the Agreement will remain enforceable. In such event, the party that has been deprived of any material benefit of such provision may notify the other and the parties promptly thereafter will use commercially reasonable efforts to replace or modify the invalid provision with a provision that, to the extent not prohibited by Laws, achieves the purposes intended under the invalid provision.
All notices will be in writing and sent by (a) certified mail (postage prepaid, return receipt requested), (b) nationally-recognized, traceable delivery service, or (c) facsimile with machine-generated confirmation of transmission without notation of error. Notice will be deemed properly given upon receipt or rejection by the addressed recipient. All notices will be directed to the parties at the respective addresses or facsimile numbers set forth at the beginning of the Agreement or to such other address or facsimile number as either party may designate by notice to the other party.
CloudKeyz may identify you as a CloudKeyz customer in our promotional materials. Customer may request that CloudKeyz stop doing so by submitting an email to support@CloudKeyz.com at any time. Please note that it may take us up to 14 days to process your request.
L.8 Entire Agreement; Amendment
This Agreement, together with all Exhibits attached hereto and any subsequent Orders accepted by CloudKeyz, which are incorporated herein by reference, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. To the extent that the terms of this Agreement or any Order are inconsistent with the terms of this Agreement, the express terms of the Order will control. No amendment or change will be valid unless in writing and signed by both parties.
L.9 Governing Law
The interpretation, validity and enforcement of this Agreement, and all legal actions brought under or in connection with the subject matter of this Agreement, will be governed by the law of the State of California. Any legal action brought under or in connection with the subject matter of this Agreement will be brought only in the United States federal courts or California state courts located in Los Angeles, California. Each party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH A DISPUTE ARISING OUT OF OR UNDER THIS AGREEMENT.
L.10 Counterparts; Electronic Signature
The parties agree to conduct business under this Agreement using electronic means including using electronic records and electronic signatures, except as provided with respect to notices in Section L.6. This Agreement may be executed in any number of counterparts and each such executed counterpart will be deemed to be an original instrument, but all such executed counterparts together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., PandaDocs or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
L.11 Further Assurances
Each Party agrees at its own expense, to execute, acknowledge, and deliver any further documents and instruments reasonably requested by the other Party, and to take any other action consistent with the terms of this Agreement that may reasonably be requested by the other Party, for the purpose of consummating the transactions contemplated by this Agreement.
L.12 Changes to this Agreement
We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, or through your CloudKeyz account). If we modify the Agreement during your Subscription Term, the modified version will be effective upon your next renewal of a Subscription Term. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew no later than the renewal date. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.