BY EXERCISING ANY RIGHTS PROVIDED BELOW OR BY OTHERWISE USING OR OTHERWISE ACCESSING ANY EXPERTREC SERVICES AND/OR EXPERTREC SOFTWARE (EACH AS DEFINED BELOW) OFFERED BY Cloud Infra LLC, located at 2711 Centerville Road, Suite 400, Wilmington, Delaware, 19808, United States. THIS ENTITY, INDIVIDUAL OR ORGANIZATION (“CUSTOMER”) CONSENTS TO BE BOUND BY THIS AGREEMENT, OR, IF APPLICABLE, BY THE TERMS OF A CURRENTLY EFFECTIVE WRITTEN AGREEMENT REGARDING THE USE OF THE PRODUCT AND SIGNED BY AN AUTHORIZED AGENT OF CUSTOMER AND BY EXPERTREC.
1. LICENSE
1.1 DEFINITIONS
“Expertrec Software” shall mean: (a) the object code version of any Expertrec Software, and (b) any associated user documentation provided to Customer (“Documentation”) as modified by Expertrec from time to time, and (c) any updates, upgrades, and/or modifications of the forgoing which are provided to the Customer pursuant to the terms of this Agreement. “Expertrec Services” shall mean the online Expertrec applications and platform which are made accessible to Customer by Expertrec, which offers the Expertrec Software on an outsourced basis. “Expertrec Offline SDK” shall mean the software development kit component of the Expertrec Software which Customer may use offline without being connected to the Expertrec Services.
1.2 LIMITED LICENSE
Subject to these Terms and Conditions, during the term of this Agreement, Expertrec grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Expertrec Software and the Expertrec Services solely for Customer’s internal business purposes, solely in accordance with the Documentation and solely for the scope for which Customer pays the applicable fees and subject to the limitations on Expertrec’s website.
1.3 USERS
If Customer is an individual, Customer or otherwise, any employee of Customer who seeks to use the Expertrec Services (each a “User”) must complete the registration form on Expertrec’s website. Upon completing the registration, Expertrec will open an account (the “Account”) for the User and create a hosted space for the User (the “Personal Space”). Each Account and Personal Space are specific to the registered User and it is a violation of these Terms and Conditions to share an Account or Personal Space access with any other individual. Users must contact Expertrec immediately if they discover that their account has been used by any other individual. Customer and User shall indemnify and hold Expertrec harmless from any improper or unauthorized use of the Expertrec Services resulting from any act or omission of Customer or User.
1.4 RESTRICTIONS
Customer shall not, and shall not authorize any third party to: (i) sublicense, use or duplicate the Expertrec Software, or any portion thereof, except as expressly authorized in these Terms and Conditions; (ii) use the Expertrec Software and/or the Expertrec Services by, or for the benefit of any third party (provided that Customer shall be entitled to use the Expertrec Services in the course of providing services to its customers and clients); (iii) modify, translate, or prepare derivative works based upon the Expertrec Software and/or the Expertrec Services; (iv) reverse-compile or decompile, disassemble or otherwise reverse engineer the Expertrec Software, except to the extent expressly required to be permitted by applicable law; (v) rent, lease, loan, sell, transfer, or distribute the Expertrec Services, or any copy or portion thereof, to any other person or entity (provided that Customer shall be entitled to use the Expertrec Services in the course of providing services to its customers and clients); (vi) alter, remove, or obscure any copyright, trademark, or other proprietary notices or confidentiality legend on or in the Expertrec Services or the Expertrec Software; (vii) use the Expertrec Services to store or transmit fraudulent, infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; and/or (viii) use the Expertrec Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. Except for the license expressly granted by Expertrec to Customer under these Terms and Conditions, Expertrec reserves all right, title and interests in and to the Expertrec Services and the Expertrec Software and any derivative works derived therefrom, and all intellectual property rights therein.
1.5 CUSTOMER DATA
Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights in all data, information or material that Customer may process or submit to the Expertrec Services (“Customer Data”). Customer shall own all Customer Data which shall be Customer’s Confidential Information (as defined below). Expertrec will maintain appropriate and adequate security measures and policies designed to protect the Customer Data from disclosure to third parties. Expertrec will promptly notify Customer as soon as is reasonably practicable if it discovers or suspects any security vulnerabilities or unauthorized access to the Expertrec Services and will provide such information and cooperation as may be reasonably required to enable Customer to mitigate, remediate, and address such vulnerabilities, unauthorized access, or breach. In the event of an actual security breach, and at the recommendation of Expertrec’s legal counsel, Expertrec will issue a report at such time that describes: (i) the date of the security breach; (ii) a description of the disclosures involved in the security breach; and, (iii) the steps Expertrec has taken to investigate the security breach, and mitigate potential harm. Expertrec may use or access Customer Data (a) to manage Customer access to the Expertrec Services; (b) to manage Expertrec’s relationship with Customer, including the administration of contracts, orders and invoices; and (c) to comply with any legal or regulatory obligations.
1.6 CUSTOMER OBLIGATIONS
Customer understands that, in order to deliver the Expertrec Services in a timely and accurate manner, Expertrec may need to rely on Customer for access to certain customer hardware, software, systems, data and personnel. Customer shall (i) be responsible and liable for any action or inaction of Customer’s employees or contractors which is in violation of these Terms and Conditions, (ii) be solely responsible for the accuracy, quality, integrity and legality of any data or materials processed by the Expertrec Services and of the means by which Customer acquires, uploads, transmits and processes those materials, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Expertrec Services, and notify Expertrec promptly of any such unauthorized access or use; (iv) make any disclosures to and obtain any consents (including from any Customer employees and contractors) as required by any applicable law, rule or regulation for the use, processing, transfer, disclosure, or access to Customer materials in or for the Expertrec Software and the Expertrec Services or as otherwise contemplated by these Terms and Conditions; (v) be responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Expertrec Software and the Expertrec Services, including, without limitation, computers, computer operating system and internet access; and (vi) ensure that all User information is accurate and updated as necessary. Customer shall be liable for any breach of this Agreement by any User.
1.7 SUPPORT
Expertrec shall use reasonable efforts to provide Support for the Expertrec Software and the Expertrec Services as during the License Term.
2. PAYMENT
The Fee for the Expertrec Software and the Expertrec Services shall be as set forth on Expertrec’s website. Expertrec may change the Fee by providing Customer not less than thirty (30) days’ prior notice. All fees paid under these Terms and Conditions (collectively “Fees”) shall be payable in US Dollars or, at Customer’s option, in Euros with the Fees converted from U.S. Dollars at the rate specified on Expertrec’s website, which Expertrec may change upon two (2) days’ notice and are payable immediately by credit card or wire transfer upon the issuance of Expertrec’s invoice. Excluding taxes based on Expertrec’s income, Customer is liable for all taxes, duties and customs fees associated with the Fees, whether or not Expertrec invoices Customer for such taxes, duties or customs fees. Past due accounts shall be charged interest on a monthly basis, calculated at one and one-half percent (1.5%) per month of the unpaid balance or the maximum rate allowable by law. Except as otherwise expressly provided in these Terms and Conditions, Customer shall not be entitled to any refund of any Fees paid for the Expertrec Software and/or the Expertrec Services. If Customer upgrades its usage plan, the change in Fees will be effective immediately. If Customer downgrades its usage plan, the change in Fees will be effective as of the commencement of the next full billing cycle.
3. TERM AND TERMINATION
These Terms and Conditions will commence on the earlier of the date these Terms and Conditions are accepted by the Customer or the date Customer installs or otherwise accesses the Expertrec Software and/or the Expertrec Services (the “Effective Date”).
3.1 FOURTEEN DAY TRIAL
Upon Customer’s initial sign-up for an Account, Customer will have a free, fourteen (14) day evaluation period (the “Evaluation Period”) for the Expertrec Services commencing on the Effective Date, subject to the limitations on Expertrec’s website. If, at the end of the Evaluation Period, Customer fails to sign up for a longer term plan, the Terms and Conditions will automatically terminate unless Expertrec agrees, in its sole discretion, to extend the Evaluation Period.
3.2 AFTER THE EXPIRATION OF THE EVALUATION PERIOD
After the expiration of the Evaluation Period, the term of these Terms and Conditions shall continue for a one (1) month term, unless Customer signs up for a longer term through the Expertrec website, subject to termination as set forth in this Section 3. Upon the expiration of each term, these Terms and Conditions shall automatically renew for the same duration as the prior term unless either party provides thirty (30) days’ notice prior to the end of the then-current term.
3.3 THESE TERMS AND CONDITIONS MAY BE TERMINATED BY EITHER PARTY
These Terms and Conditions may be terminated by either party: (i) upon five (5) days written notice if the other party materially breaches any provision of these Terms and Conditions and the breach remains uncured within the five (5) day period; or (ii) effective immediately on written notice, if the other party ceases to do business, or otherwise terminates its business operations; or (iii) effective immediately on written notice, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it; (iv) effective immediately, upon any breach of Section 1.4 or Section 7 of these Terms and Conditions; (v) by either party, upon thirty (30) days written notice provided that if Customer terminates without cause prior to the end of the then-current term, Customer shall be immediately liable for the balance of the Fees for the remainder of that term; or (vi) by either party upon notice for any reason during the Evaluation Period. Upon any expiration or termination of these Terms and Conditions: (i) all licenses and rights granted by Expertrec to Customer hereunder shall terminate; and (ii) Customer will cease all use of the Expertrec Software and the Expertrec Services; (iii) Customer shall immediately return to Expertrec the Expertrec Software and the Expertrec Services, all duplicates, and any Expertrec Confidential Information; and (iv) all amounts shall become immediately due and payable. The provisions of Sections 1.4, 2, 3, 4, 6, 7 and 8 shall survive and remain effective after the effective date of termination or expiration of these Terms and Conditions.. Expertrec reserves the right but does not have an obligation to suspend the provision of the Expertrec Services prior to exercising its termination rights under these Terms and Conditions.
4. INDEMNIFICATION
4.1 CUSTOMER
Customer shall defend, indemnify, and hold harmless Expertrec from and against any claims, demands, liabilities, or expenses (excluding incidental, consequential, fines, penalties punitive, or exemplary damages) for any injury or damage (including but not limited to any personal or bodily injury or property damage resulting from any misrepresentation, fraud, violation of law or any breach of these Terms and Conditions arising out of or resulting in any way from any conduct of Customer’s employees, contractors or agents.
4.2 EXPERTREC
Expertrec, at its own expense (including payment of attorneys’ fees, expert fees and court costs), shall defend Customer from any and all third party claims that the Expertrec Software and/or the Expertrec Services infringes any patent or copyright or misappropriates any third party’s trade secret and shall indemnify Customer from any amounts assessed against Customer in a resulting judgment or amounts to settle such claims, provided that Customer: (a) gives Expertrec prompt written notice of any such claim; (b) permits Expertrec to control and direct the defense or settlement of any such claim; and (c) provides Expertrec all reasonable assistance in connection with the defense or settlement of any such claim. If Customer’s use of the Expertrec Software and/or the Expertrec Services is (or in Expertrec’s opinion is likely to be) enjoined, Expertrec, at its expense and in its sole discretion, may terminate these Terms and Conditions and Customer’s right to use the Expertrec Software and the Expertrec Services. Notwithstanding the foregoing, Expertrec shall have no obligations under this Section to the extent any infringement claim is based upon or arising out of: (i) any modification or alteration to the Expertrec Software or the Expertrec Services not made by Expertrec; (ii) any combination or use of the Expertrec Software or the Expertrec Services with products or services not approved by Expertrec in writing; (iii) Customer’s continuance of allegedly infringing activity after being notified thereof; and/or (iv) use of the Expertrec Software or the Expertrec Services not in accordance with the terms of these Terms and Conditions. The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and Expertrec’s entire liability, with respect to infringement or misappropriation of third party intellectual property.
5. SERVICE LEVEL AGREEMENT
Expertrec provides Customer with the guarantee for the Expertrec Services as set forth in the Service Level Agreement (“SLA”).
We deliver 99.99% uptime as our standard SLA.
The SLA does not apply (a) to unavailability of Expertrec Services caused by factors outside of Expertrec’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Expertrec employees); or (b) to unavailability of Expertrec Services that result from equipment and/or software of third parties where such equipment and/or software is not within the control of Expertrec; or (c) to unavailability of Expertrec Services caused by abuse or misuse of Expertrec Services (or any component thereof) by Customer or Users or Customer’s employees, contractors or those operating under Contractor’s direction or control; or (d) to unavailability of Expertrec Services caused by use or maintenance of the Expertrec Services (or any component thereof) by Customer in a manner not conforming to the requirements described in the Documentation or in the Agreement; or (e) to unavailability of the Expertrec Services caused by modifications or alterations to the Expertrec Software by Customer or Users or Customer’s employees, contractors or those operating under Contractor’s direction or control; or (f) to unavailability due to reaching the maximum capacity of the contracted infrastructure; or (g) for any usage where Customer has not used Expertrec’s API client.
6. DISCLAIMER; LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE PROVIDED HEREIN, THE EXPERTREC SOFTWARE AND THE EXPERTREC SERVICES AND ANY MATERIALS PROVIDED BY EXPERTREC HEREUNDER ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. EXPERTREC DOES NOT GUARANTEE THAT THE EXPERTREC SERVICES, DOCUMENTATION OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. FURTHER, EXPERTREC AND ITS SUPPLIERS DO NOT WARRANT THE RESULTS OF USE OF THE EXPERTREC SOFTWARE OR EXPERTREC SERVICES ARE BUG/ERROR FREE OR THAT ITS USE WILL BE UNINTERRUPTED. IN ADDITION, DUE TO CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR INTRUDING UPON/ATTACKING NETWORKS, HARDWARE AND SOFTWARE, EXPERTREC DOES NOT WARRANT THAT THE EXPERTREC SOFTWARE OR EXPERTREC SERVICES OR ANY EQUIPMENT, SYSTEM, OR NETWORK ON WHICH THE EXPERTREC SOFTWARE OR EXPERTREC SERVICES ARE USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. EXPERTREC DOES NOT WARRANT THAT ANY SERVICES CONNECTING TO THE EXPERTREC SOFTWARE OR EXPERTREC SERVICES PROVIDED BY THIRD PARTIES OR ANY DATA PROVIDED BY SUCH THIRD PARTIES WILL BE FREE FROM ERRORS OR INTERRUPTIONS OF SERVICE. EXCEPT FOR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTIONS 1.4 OR 7 OF THESE TERMS AND CONDITIONS, (A) CUSTOMER’S SOLE REMEDY AND EXPERTREC’S SOLE LIABILITY FOR ANY BREACH OF THESE TERMS AND CONDITIONS SHALL BE TO TERMINATE THE AGREEMENT, CEASE ALL USE OF THE EXPERTREC SOFTWARE AND THE EXPERTREC SERVICES; AND IMMEDIATELY RETURN TO EXPERTREC THE EXPERTREC SOFTWARE AND THE EXPERTREC SERVICES, ALL DUPLICATES, AND ANY EXPERTREC CONFIDENTIAL INFORMATION; (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS, INCLUDING LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS; (C) IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY, OR ANY THIRD PARTY LICENSORS UNDER THESE TERMS AND CONDITIONS (UNDER ANY THEORY OF LIABILITY) EXCEED THE GREATER OF THE FEES ACTUALLY PAID BY CUSTOMER OR ONE THOUSAND DOLLARS ($1,000), WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.
7. CONFIDENTIAL INFORMATION
Each party (the “Receiving Party”) acknowledges that it may receive from the other (the “Disclosing Party”) confidential information relating to the Disclosing Party. Such information shall belong solely to the Disclosing Party and includes, but is not limited to, the terms of these Terms and Conditions and other technical, business, marketing and financial information, and any data not previously known that could reasonably be considered confidential or proprietary (“Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure; or (iv) is approved for release by written authorization of the Disclosing Party. During and after the term of these Terms and Conditions, the Receiving Party shall: (a) not use (except as expressly authorized by these Terms and Conditions) or disclose Confidential Information without the prior written consent of the Disclosing Party; and (b) take all reasonable measures to maintain the Confidential Information in confidence. Information shall not be deemed confidential if it becomes public without breach of these Terms and Conditions by the Receiving Party. The Expertrec Services and all technical information relating thereto shall be considered Confidential Information of Expertrec. Either party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and the opportunity to obtain appropriate confidential treatment for such confidential information. Expertrec may disclose aspects of these Terms and Conditions to its licensors to the extent such information is required under the agreement with such licensor. In the course of providing the Expertrec Services, Expertrec may have access to a User’s Personal Space and may acquire information regarding Customer’s usage. Expertrec will use any data in aggregate manner only. Individual disclosing party data would be protected and used only for enhancing that specific disclosing party requirements. Any personal data, including but not limited to personal data which is a part of the Customer Data, shall be governed by Expertrec’s Privacy Policy.
8. GENERAL
8.1 COMPLIANCE WITH LAWS; EXPORT CONTROL
Customer shall use the Expertrec Software and the Expertrec Services in compliance with all applicable laws, statutes, rules and regulations. Except as expressly permitted in these Terms and Conditions, Customer shall not export or import the Expertrec Software and the Expertrec Services (including without limitation any Documentation) or any technical information provided under these Terms and Conditions.
8.2 ASSIGNMENT
Neither these Terms and Conditions, nor any rights, licenses nor any obligations hereunder, may be assigned by Customer without the prior written consent of Expertrec. Any attempted assignment in violation of these Terms and Conditions shall be void and without effect.
8.3 FORCE MAJEURE
Expertrec shall not be liable for any breach of this Agreement as a result of any event or circumstances beyond its reasonable control, including without limitation, war, invasion, act of foreign enemy, hostilities, civil war or rebellion (whether war be declared or not), strike, lockout or other industrial dispute.
8.4 U.S. GOVERNMENT END-PURCHASER
As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Expertrec Software and Expertrec Services and accompanying documentation provided by Expertrec are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms.
8.5 EUROPEAN DATA TRANSFER
To the extent Customer is located within the European Union, Customer and Expertrec agree to the Standard Contractual Clauses located at Expertrec’s Clickthrough Standard Data Clauses.
8.6 PUBLICITY
Customer consents to Expertrec’s use of Customer name and logo and general description of Customer’s relationship with Expertrec in press releases and other marketing materials and appearances.