Cloudie Technologies
Cloudie Technologies Terms of Service.
CLOUD TERMS OF USE between Cloudie Technologies Services (Pty) Ltd. Reg No: 2013/127224/07 ("we" or "Cloudie Technologies") and the customer who orders Cloudie Technologies solutions and services ("you" or "Customer").
THE AGREEMENT. Your use of Cloudie Technologies services is governed by these Cloud Terms of Use.
1. DEFINED TERMS.
Some words used in the Agreement have specific meanings:
"Affiliate" means any and all legal entities which now or hereafter the ultimate parent of Cloudie Technologies controls. For the purpose of this definition, "control" shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity. "Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) special pricing agreements and other terms of use, audit and security reports, product development plans, non public information of the parties relating to its business activities or financial affairs, , server configurations, and any other proprietary information or technology, and (ii) information that is marked as confidential. Information that is developed by one of us on our own, without reference to the other's Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party. Confidential Information shall not include Customer Data.
"Order" means: (i) the written order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by Cloudie Technologies for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and (iii) your use or provisioning of the Services through the Cloudie Technologies Cloud control panel.
"Business Day" means 8:00 a.m. - 5:00 p.m. Monday to Friday, excluding public holidays in the South Africa.
"Customer Data" means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Services.
"Services" means the software and services described in the Order and includes any services which you self-provision.
"Support" means (i) Cloudie Technologies employees with training and experience relative to the Services will be available ‘live' by telephone, chat, or ticket 8 hours per day, five days per week, excluding South African public holidays and (ii) any additional level of support offered by Cloudie Technologies applicable to the specific custom Services ordered by you.
2. CLOUDIE TECHNOLOGIES'S OBLIGATIONS.
Subject to Cloudie Technologies's acceptance of your Order, and subject to these Cloud Terms of Service, Cloudie Technologies agrees to provide the Services and Support described in your Order. Cloudie Technologies agrees to follow security procedures at least as stringent, in Cloudie Technologies's reasonable judgment, or as agreed with the customer.
3. YOUR OBLIGATIONS.
You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy (ii) use software in compliance with Section 19 (ii) pay when due the fees for the Services,
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. Cloudie Technologies's security obligations with respect to Customer Data are limited to those obligations described in Section 2 above. Cloudie Technologies makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
4. ACCESS TO THE SERVICES.
You may access the Services via the Cloudie Technologies Cloud control panel, or via specific methods indicated to you by Cloudie Technologies. Cloudie Technologies may modify its control panel or access methods at any time.
5. SERVICE LEVEL AGREEMENTS.
Cloud Service Level Agreements are available on request. The terms there are incorporated herein by reference as to the applicable Services.
6. TERM.
The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other 30 days written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You are required to submit a written service cancellation to Cloudie Technologies and receive an acknowledgment in receipt.
7. CHARGES.
Cloudie Technologies will charge you fees in accordance with your Order. Unless you have made other arrangements, Cloudie Technologies will charge you with invoice as follows: (i) for recurring fees, in advance, on or around the first day of each month, and (ii) for non-recurring fees (such as fees for initial set-up, overages, additional resources, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Cloudie Technologies's option. Unless otherwise agreed in the Order, your billing cycle will be monthly in advance, beginning on the date that Cloudie Technologies first makes the Services available to you. Cloudie Technologies may suspend all Services (including Services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to you are rejected for any reason. In order to ensure continuous services to customers in the event of non-payment by the reseller, Cloudie Technologies reserves the right to bill the customer directly until such time as the account with Cloudie Technologies is rectified and brought up to date. A reasonable rectification period of 7 days after official communication to the reseller will apply before any such action will be taken. Cloudie Technologies may charge interest on overdue amounts at the Prime
Lending Rate, plus 1.5% per month. If any amount is overdue by more than thirty (30) days, and Cloudie Technologies brings a legal action to collect, or engages a collection agency, you must also pay Cloudie Technologies's reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in South African Rands. Any "credit" that we may owe you, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You authorise Cloudie Technologies to obtain a credit report at any time during the term of the Agreement.
8. PRICE INCREASES.
For those Services provided on a month-to-month term, we may increase prices at any time on thirty (30) days advance written notice. If your Order contains Services with a specified term longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins thirty (30) days from the day of our written notice of a fee increase.
9. SUSPENSION OF SERVICES.
We may suspend the Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that the Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Cloudie Technologies or our other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed R1500) upon reinstatement of the Services.
10. EARLY TERMINATION FEE.
If you terminate the Agreement prior to contractual commitment concludes, in addition to other amounts you may owe, an early termination fee will be charged equal to any minimum monthly financial commitment you have made for the remaining portion of the then-current term.
11. BREACH.
We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an entity, the individual submitting the Order did not have the legal right or authority to enter into the Agreement on behalf of the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within seven (7) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Cloudie Technologies in an orderly fashion, (v) you use the Services in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide
the Services as agreed and do not remedy that failure within fourteen (14) days of your written notice describing the failure, or (ii) we materially fail to meet any other
obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
12. DATA ACCESS.
12.a You will have access to your data for Thirty Days (30) following termination. You will not have access to your data stored on the Services during a suspension that may arise due to a breach of this agreement.
12.b You will be charged for any use of backup services as listed in your Order.
12.c The Cloudie Technologies Cloud services may be used as a backup service. You agree that you will maintain at least one additional copy of your programs and data stored on the Cloud platform somewhere other than on the Cloud system. If you utilise Cloudie Technologies Cloud backup services, we are not responsible for performing and testing restores and monitoring the integrity of your data.
13. USE OF CONFIDENTIAL INFORMATION.
Both parties agree not to use the other's Confidential Information except in connection with the performance or law may require use of the Services. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
14. DISCLAIMERS.
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information, and property. Cloudie Technologies has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the service chosen, including the suitability as it relates to your Customer Data. The Services are provided AS IS, subject to any applicable Service Level Agreement (as described in Section 5 above). Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS, including any services that are deemed Unsupported.
15. ACCESS TO YOUR CUSTOMER DATA OR USE OF THE SERVICES.
Cloudie Technologies is not responsible to you for unauthorised access to your data or the unauthorised use of the Services unless the unauthorised access or use results from Cloudie Technologies's failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorised by you. Cloudie Technologies agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
16. LIMITATION ON DAMAGES.
Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of an applicable Service Level Agreement. The credits stated in any applicable Service Level Agreement are your sole and exclusive remedy for our failure to meet those guarantees for which credits are provided.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, the maximum aggregate monetary liability of Cloudie Technologies and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Ten Thousand Rands (R10 000.00).
17. INDEMNIFICATION.
If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the "Cloudie Technologies Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is
imposed on the Cloudie Technologies Indemnitees as a result of the claim. Your obligations under this Section include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorised by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
18. CHANGES TO THE ACCEPTABLE USE POLICY.
We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP, or
19. RESALE OF SERVICES.
You may resell the Services, but you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. If you resell any part of the Services that includes Microsoft software, then you are required to include the Microsoft terms described in Section 20 (Microsoft Software) below in a written agreement with your customers as well as the content of Section 22 (High Risk Use). Cloudie Technologies will provide support only to you, not to your end customer.
20. MICROSOFT SOFTWARE
In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft's license terms.
If you make use of Microsoft software on the Services that is not relicensed to you by Cloudie Technologies under the under the Microsoft Service Provider License Agreement ("SPLA"), then you warrant that you have a written license agreement that permits you to use the Microsoft software in conjunction with the Services. While utilizing the Services, your rights and obligations relating to the software licensed by Microsoft to you are identical to those imposed on you under this Agreement if you utilized software relicensed to you by Cloudie Technologies under the Microsoft SPLA. You agree that you will provide Cloudie Technologies with evidence of such licensing as Cloudie Technologies may reasonably require prior to the commencement of the Services, and from time to time as necessary to update the status of the license. If you fail to provide the required evidence of licensing Cloudie Technologies may, at its option, either (i) suspend the Services that were to include such software until the evidence is provided, (ii) provide the Services in reliance on Cloudie Technologies's licensing agreement with the vendor, and charge you its standard fee for the use of the software until such time as the required evidence is provided, or (iii) suspend or terminate this Agreement.
If you wish to exercise License Mobility through Software Assurance rights, you must execute the Mobility Verification Form located at http://www.microsoft.com/licensing/software-assurance/license-mobility.aspx or at its successor site, and submit it to Microsoft for verification within ten (10) days of your deployment of such Microsoft software. Licenses under the License Mobility through Software Assurance program must remain on Cloudie Technologies's shared servers within a single data center for no less than ninety (90) days. You may not reassign a particular license within ninety (90) days of the last assignment.
You must cooperate with Cloudie Technologies in the event that Microsoft requests Cloudie Technologies's participation in an audit of the software services. You agree that Cloudie Technologies can provide Microsoft with (a) the number of Windows Virtual Machine instances provided to you by Cloudie Technologies (b) a list of the Microsoft software products which run in such Windows Virtual Machine instances and (c) all copies of your validated Mobility Verification Forms. If Microsoft determines that you are non-compliant with the program requirements for License Mobility through Software Assurance and you do not cure the non-compliance within a time period specified by Microsoft, then Cloudie Technologies may terminate this Agreement, the provision of any or all Services to you, or both.
21. NOTICES.
Your routine communications regarding the Services should be sent to your Cloudie Technologies Cloud account team. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail or registered post:
Email: info@cloudie.co.za
Managing Director
Cloudie Technologies Services (Pty) Ltd
PO Box 1938, Rivonia
2128
Cloudie Technologies's routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, or courier, by posting the notice on the Cloudie Technologies website or Cloud
control panel. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language. 22. HIGH RISK USE.
You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation or nuclear or chemical facilities.
23. IP ADDRESSES.
Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Cloudie Technologies in connection with Services, including pointing the DNS for your domain name(s) away from Cloudie Technologies Services. You agree that Cloudie Technologies may, as it determines necessary, make modifications to DNS records and zones on Cloudie Technologies managed or operated DNS servers and services.
24. INTELLECTUAL PROPERTY.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Cloudie Technologies during the performance of the Services shall belong to Cloudie Technologies unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
25. MANAGEMENT SOFTWARE.
You agree that you will not interfere with any management software that Cloudie Technologies installs on your Services. Cloudie Technologies agrees that its agents not interfere with your use of your Services. Cloudie Technologies will use the agents to track system information so that it can more efficiently manage various service issues. Your Services will become "Unsupported" as described in Section 33 if you disable or interfere with our services management software.
26. SUBCONTRACTORS.
Cloudie Technologies may use third party service providers to perform all or any part of the Services, but Cloudie Technologies remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Cloudie Technologies performed the Services itself.
27. FORCE MAJEURE.
Any delay or failure in the performance by either Party hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure. For purposes of this Agreement, Force Majeure shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the Party claiming Force Majeure, including acts of God, fires, floods, explosions, riots, wars, hurricane, sabotage terrorism, vandalism. Accident, restraint of government, governmental acts, injunctions, labor strikes, other than those of Seller or its suppliers, that prevent Seller from furnishing the services or equipment, and other like events that are beyond the reasonable anticipation and control of the Party affected thereby, despite such Party's reasonable efforts to prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a Party's failure to
perform its obligations under this Agreement
28. AGREEMENT AMMENDMENTS.
Any amended Cloud Terms of Use will become effective the earlier of either your acceptance of the amended Cloud Terms of Service, your continued use of the Services after notice of the amended Terms of Service, or 21 working days after the date Cloudie Technologies posts such amended Terms of Service via the communication channels stipulated in your order. If multiple Orders for a single account are signed, then the Cloud Terms of Use incorporated in the latest Order will govern the entire account. Cloudie Technologies may accept or reject any Order you submit in its sole discretion. Cloudie Technologies's provisioning of the Services described in an Order shall be Cloudie Technologies's acceptance of the Order.
An Order may be amended by written agreement signed by both parties, or by an exchange of correspondence, including email, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
This Agreement is the complete and exclusive agreement between you and Cloudie Technologies regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
29. UNSUPPORTED SOLUTIONS.
If you ask us to implement a configuration element (hardware or software) or other service in a manner that is not customary at Cloudie Technologies, or that is in "end of life" or "end of support" status, we may designate the element or service as "unsupported," "non-standard," "best efforts," "reasonable endeavor," "one-off," "EOL," "end of support," or with like term in the Order (referred to in this Section as an "Unsupported Service"). Cloudie Technologies makes no representation or warranty whatsoever regarding any Unsupported Service, and you agree that Cloudie Technologies will not be liable to you for any loss or damage arising from the provision of the Unsupported Service. The Service Level Agreement will not apply to the Unsupported Service, or any other aspect of the Services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with Cloudie Technologies's other services.
30. CLOUD SERVER IMAGES.
If you provision a Cloudie Technologies Cloud Server or other Service using a non-standard or non-Cloudie Technologies image, then Cloudie Technologies shall have no obligation to provide Support for that Service, and any Support provided shall be on an Ad Hoc basis.
31. MANAGED SERVICES.
If you purchase a Managed Service for your account, then additional Support fees will apply. Cloudie Technologies must have full root/administrator access to your Services in order to provide Managed Services. If you use Managed Services, you are responsible for updating Cloudie Technologies about password changes that limit Cloudie Technologies's ability to manage or monitor the Services.
32. DOMAIN REGISTRATION SERVICES.
If you register, renew, or transfer a domain name through Cloudie Technologies, Cloudie Technologies will submit the request to its domain name services provider (the "Registrar") on your behalf. Cloudie Technologies's responsibility is to submit the request to the Registrar. Cloudie Technologies is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the Registrar's applicable legal terms and conditions. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
33. MAIL SERVICES.
33.a Privacy. The content of your email is your Confidential Information. However, you agree that we may use the message routing data for our general business and support purposes,
33.b Management of the Service. Cloudie Technologies will provision your initial mail environment, but unless specified in your order, you are responsible for managing your mail service.
33.c Filtering. Cloudie Technologies will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses. Cloudie Technologies recommends that you employ additional security, such as a PC virus scanner and personal firewall, on computers that connect to the Internet. Cloudie Technologies will use commercially reasonable efforts to deliver your email messages as per the Service Level Agreements associated with your order. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service may result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release Cloudie Technologies and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of Cloudie Technologies's filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient's email service provider.
33.d Access. To Mail Services You may access your Mail Services over the web or via the control panel stipulated in your order confirmation or deployment guide, through any supported Cloudie Technologies supported email client or by connecting directly to the IP address provided for the purposes of a Remote Desktop Session.
33.e Mailbox Limitations. Mail that exceeds the storage limits as stipulated in your order may be permanently lost. You may request a storage capacity upgrade of your mailboxes via the Cloudie Technologies support function, and it is your obligation to monitor and request the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit of 20 MB (including attachments) may also be lost if Mimecast has not been deployed with your email solution.
33.f Bulk Emails. You agree that you will not send bulk or commercial e-mail to more than four-thousand (4,000) users per day, at a rate of two-hundred and fifty (250) messages every twenty minutes.
Cloudie Technologies Terms of Service.
CLOUD TERMS OF USE between Cloudie Technologies Services (Pty) Ltd. Reg No: 2013/127224/07 ("we" or "Cloudie Technologies") and the customer who orders Cloudie Technologies solutions and services ("you" or "Customer").
THE AGREEMENT. Your use of Cloudie Technologies services is governed by these Cloud Terms of Use.
1. DEFINED TERMS.
Some words used in the Agreement have specific meanings:
"Affiliate" means any and all legal entities which now or hereafter the ultimate parent of Cloudie Technologies controls. For the purpose of this definition, "control" shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity. "Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) special pricing agreements and other terms of use, audit and security reports, product development plans, non public information of the parties relating to its business activities or financial affairs, , server configurations, and any other proprietary information or technology, and (ii) information that is marked as confidential. Information that is developed by one of us on our own, without reference to the other's Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party. Confidential Information shall not include Customer Data.
"Order" means: (i) the written order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by Cloudie Technologies for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and (iii) your use or provisioning of the Services through the Cloudie Technologies Cloud control panel.
"Business Day" means 8:00 a.m. - 5:00 p.m. Monday to Friday, excluding public holidays in the South Africa.
"Customer Data" means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Services.
"Services" means the software and services described in the Order and includes any services which you self-provision.
"Support" means (i) Cloudie Technologies employees with training and experience relative to the Services will be available ‘live' by telephone, chat, or ticket 8 hours per day, five days per week, excluding South African public holidays and (ii) any additional level of support offered by Cloudie Technologies applicable to the specific custom Services ordered by you.
2. CLOUDIE TECHNOLOGIES'S OBLIGATIONS.
Subject to Cloudie Technologies's acceptance of your Order, and subject to these Cloud Terms of Service, Cloudie Technologies agrees to provide the Services and Support described in your Order. Cloudie Technologies agrees to follow security procedures at least as stringent, in Cloudie Technologies's reasonable judgment, or as agreed with the customer.
3. YOUR OBLIGATIONS.
You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy (ii) use software in compliance with Section 19 (ii) pay when due the fees for the Services,
- use reasonable security precautions in light of your use of the Services, including encrypting any confidential information transmitted to and from, and while stored on, the Services (including the underlying servers and devices) (v) cooperate with Cloudie Technologies's reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (vi) keep your billing contact and other account information up to date; and (vii) immediately notify Cloudie Technologies of any unauthorised use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Cloudie Technologies's reasonable determination shall control.
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. Cloudie Technologies's security obligations with respect to Customer Data are limited to those obligations described in Section 2 above. Cloudie Technologies makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
4. ACCESS TO THE SERVICES.
You may access the Services via the Cloudie Technologies Cloud control panel, or via specific methods indicated to you by Cloudie Technologies. Cloudie Technologies may modify its control panel or access methods at any time.
5. SERVICE LEVEL AGREEMENTS.
Cloud Service Level Agreements are available on request. The terms there are incorporated herein by reference as to the applicable Services.
6. TERM.
The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other 30 days written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You are required to submit a written service cancellation to Cloudie Technologies and receive an acknowledgment in receipt.
7. CHARGES.
Cloudie Technologies will charge you fees in accordance with your Order. Unless you have made other arrangements, Cloudie Technologies will charge you with invoice as follows: (i) for recurring fees, in advance, on or around the first day of each month, and (ii) for non-recurring fees (such as fees for initial set-up, overages, additional resources, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Cloudie Technologies's option. Unless otherwise agreed in the Order, your billing cycle will be monthly in advance, beginning on the date that Cloudie Technologies first makes the Services available to you. Cloudie Technologies may suspend all Services (including Services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to you are rejected for any reason. In order to ensure continuous services to customers in the event of non-payment by the reseller, Cloudie Technologies reserves the right to bill the customer directly until such time as the account with Cloudie Technologies is rectified and brought up to date. A reasonable rectification period of 7 days after official communication to the reseller will apply before any such action will be taken. Cloudie Technologies may charge interest on overdue amounts at the Prime
Lending Rate, plus 1.5% per month. If any amount is overdue by more than thirty (30) days, and Cloudie Technologies brings a legal action to collect, or engages a collection agency, you must also pay Cloudie Technologies's reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in South African Rands. Any "credit" that we may owe you, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You authorise Cloudie Technologies to obtain a credit report at any time during the term of the Agreement.
8. PRICE INCREASES.
For those Services provided on a month-to-month term, we may increase prices at any time on thirty (30) days advance written notice. If your Order contains Services with a specified term longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins thirty (30) days from the day of our written notice of a fee increase.
9. SUSPENSION OF SERVICES.
We may suspend the Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that the Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Cloudie Technologies or our other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed R1500) upon reinstatement of the Services.
10. EARLY TERMINATION FEE.
If you terminate the Agreement prior to contractual commitment concludes, in addition to other amounts you may owe, an early termination fee will be charged equal to any minimum monthly financial commitment you have made for the remaining portion of the then-current term.
11. BREACH.
We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an entity, the individual submitting the Order did not have the legal right or authority to enter into the Agreement on behalf of the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within seven (7) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Cloudie Technologies in an orderly fashion, (v) you use the Services in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide
the Services as agreed and do not remedy that failure within fourteen (14) days of your written notice describing the failure, or (ii) we materially fail to meet any other
obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
12. DATA ACCESS.
12.a You will have access to your data for Thirty Days (30) following termination. You will not have access to your data stored on the Services during a suspension that may arise due to a breach of this agreement.
12.b You will be charged for any use of backup services as listed in your Order.
12.c The Cloudie Technologies Cloud services may be used as a backup service. You agree that you will maintain at least one additional copy of your programs and data stored on the Cloud platform somewhere other than on the Cloud system. If you utilise Cloudie Technologies Cloud backup services, we are not responsible for performing and testing restores and monitoring the integrity of your data.
13. USE OF CONFIDENTIAL INFORMATION.
Both parties agree not to use the other's Confidential Information except in connection with the performance or law may require use of the Services. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
- to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement.
- in response to a summons or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.
14. DISCLAIMERS.
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information, and property. Cloudie Technologies has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the service chosen, including the suitability as it relates to your Customer Data. The Services are provided AS IS, subject to any applicable Service Level Agreement (as described in Section 5 above). Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS, including any services that are deemed Unsupported.
15. ACCESS TO YOUR CUSTOMER DATA OR USE OF THE SERVICES.
Cloudie Technologies is not responsible to you for unauthorised access to your data or the unauthorised use of the Services unless the unauthorised access or use results from Cloudie Technologies's failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorised by you. Cloudie Technologies agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
16. LIMITATION ON DAMAGES.
Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of an applicable Service Level Agreement. The credits stated in any applicable Service Level Agreement are your sole and exclusive remedy for our failure to meet those guarantees for which credits are provided.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, the maximum aggregate monetary liability of Cloudie Technologies and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Ten Thousand Rands (R10 000.00).
17. INDEMNIFICATION.
If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the "Cloudie Technologies Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is
imposed on the Cloudie Technologies Indemnitees as a result of the claim. Your obligations under this Section include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorised by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
18. CHANGES TO THE ACCEPTABLE USE POLICY.
We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP, or
- thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate the Services because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term
19. RESALE OF SERVICES.
You may resell the Services, but you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. If you resell any part of the Services that includes Microsoft software, then you are required to include the Microsoft terms described in Section 20 (Microsoft Software) below in a written agreement with your customers as well as the content of Section 22 (High Risk Use). Cloudie Technologies will provide support only to you, not to your end customer.
20. MICROSOFT SOFTWARE
In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft's license terms.
If you make use of Microsoft software on the Services that is not relicensed to you by Cloudie Technologies under the under the Microsoft Service Provider License Agreement ("SPLA"), then you warrant that you have a written license agreement that permits you to use the Microsoft software in conjunction with the Services. While utilizing the Services, your rights and obligations relating to the software licensed by Microsoft to you are identical to those imposed on you under this Agreement if you utilized software relicensed to you by Cloudie Technologies under the Microsoft SPLA. You agree that you will provide Cloudie Technologies with evidence of such licensing as Cloudie Technologies may reasonably require prior to the commencement of the Services, and from time to time as necessary to update the status of the license. If you fail to provide the required evidence of licensing Cloudie Technologies may, at its option, either (i) suspend the Services that were to include such software until the evidence is provided, (ii) provide the Services in reliance on Cloudie Technologies's licensing agreement with the vendor, and charge you its standard fee for the use of the software until such time as the required evidence is provided, or (iii) suspend or terminate this Agreement.
If you wish to exercise License Mobility through Software Assurance rights, you must execute the Mobility Verification Form located at http://www.microsoft.com/licensing/software-assurance/license-mobility.aspx or at its successor site, and submit it to Microsoft for verification within ten (10) days of your deployment of such Microsoft software. Licenses under the License Mobility through Software Assurance program must remain on Cloudie Technologies's shared servers within a single data center for no less than ninety (90) days. You may not reassign a particular license within ninety (90) days of the last assignment.
You must cooperate with Cloudie Technologies in the event that Microsoft requests Cloudie Technologies's participation in an audit of the software services. You agree that Cloudie Technologies can provide Microsoft with (a) the number of Windows Virtual Machine instances provided to you by Cloudie Technologies (b) a list of the Microsoft software products which run in such Windows Virtual Machine instances and (c) all copies of your validated Mobility Verification Forms. If Microsoft determines that you are non-compliant with the program requirements for License Mobility through Software Assurance and you do not cure the non-compliance within a time period specified by Microsoft, then Cloudie Technologies may terminate this Agreement, the provision of any or all Services to you, or both.
21. NOTICES.
Your routine communications regarding the Services should be sent to your Cloudie Technologies Cloud account team. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail or registered post:
Email: info@cloudie.co.za
Managing Director
Cloudie Technologies Services (Pty) Ltd
PO Box 1938, Rivonia
2128
Cloudie Technologies's routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, or courier, by posting the notice on the Cloudie Technologies website or Cloud
control panel. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language. 22. HIGH RISK USE.
You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation or nuclear or chemical facilities.
23. IP ADDRESSES.
Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Cloudie Technologies in connection with Services, including pointing the DNS for your domain name(s) away from Cloudie Technologies Services. You agree that Cloudie Technologies may, as it determines necessary, make modifications to DNS records and zones on Cloudie Technologies managed or operated DNS servers and services.
24. INTELLECTUAL PROPERTY.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Cloudie Technologies during the performance of the Services shall belong to Cloudie Technologies unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
25. MANAGEMENT SOFTWARE.
You agree that you will not interfere with any management software that Cloudie Technologies installs on your Services. Cloudie Technologies agrees that its agents not interfere with your use of your Services. Cloudie Technologies will use the agents to track system information so that it can more efficiently manage various service issues. Your Services will become "Unsupported" as described in Section 33 if you disable or interfere with our services management software.
26. SUBCONTRACTORS.
Cloudie Technologies may use third party service providers to perform all or any part of the Services, but Cloudie Technologies remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Cloudie Technologies performed the Services itself.
27. FORCE MAJEURE.
Any delay or failure in the performance by either Party hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure. For purposes of this Agreement, Force Majeure shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the Party claiming Force Majeure, including acts of God, fires, floods, explosions, riots, wars, hurricane, sabotage terrorism, vandalism. Accident, restraint of government, governmental acts, injunctions, labor strikes, other than those of Seller or its suppliers, that prevent Seller from furnishing the services or equipment, and other like events that are beyond the reasonable anticipation and control of the Party affected thereby, despite such Party's reasonable efforts to prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a Party's failure to
perform its obligations under this Agreement
28. AGREEMENT AMMENDMENTS.
Any amended Cloud Terms of Use will become effective the earlier of either your acceptance of the amended Cloud Terms of Service, your continued use of the Services after notice of the amended Terms of Service, or 21 working days after the date Cloudie Technologies posts such amended Terms of Service via the communication channels stipulated in your order. If multiple Orders for a single account are signed, then the Cloud Terms of Use incorporated in the latest Order will govern the entire account. Cloudie Technologies may accept or reject any Order you submit in its sole discretion. Cloudie Technologies's provisioning of the Services described in an Order shall be Cloudie Technologies's acceptance of the Order.
An Order may be amended by written agreement signed by both parties, or by an exchange of correspondence, including email, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
This Agreement is the complete and exclusive agreement between you and Cloudie Technologies regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
29. UNSUPPORTED SOLUTIONS.
If you ask us to implement a configuration element (hardware or software) or other service in a manner that is not customary at Cloudie Technologies, or that is in "end of life" or "end of support" status, we may designate the element or service as "unsupported," "non-standard," "best efforts," "reasonable endeavor," "one-off," "EOL," "end of support," or with like term in the Order (referred to in this Section as an "Unsupported Service"). Cloudie Technologies makes no representation or warranty whatsoever regarding any Unsupported Service, and you agree that Cloudie Technologies will not be liable to you for any loss or damage arising from the provision of the Unsupported Service. The Service Level Agreement will not apply to the Unsupported Service, or any other aspect of the Services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with Cloudie Technologies's other services.
30. CLOUD SERVER IMAGES.
If you provision a Cloudie Technologies Cloud Server or other Service using a non-standard or non-Cloudie Technologies image, then Cloudie Technologies shall have no obligation to provide Support for that Service, and any Support provided shall be on an Ad Hoc basis.
31. MANAGED SERVICES.
If you purchase a Managed Service for your account, then additional Support fees will apply. Cloudie Technologies must have full root/administrator access to your Services in order to provide Managed Services. If you use Managed Services, you are responsible for updating Cloudie Technologies about password changes that limit Cloudie Technologies's ability to manage or monitor the Services.
32. DOMAIN REGISTRATION SERVICES.
If you register, renew, or transfer a domain name through Cloudie Technologies, Cloudie Technologies will submit the request to its domain name services provider (the "Registrar") on your behalf. Cloudie Technologies's responsibility is to submit the request to the Registrar. Cloudie Technologies is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the Registrar's applicable legal terms and conditions. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
33. MAIL SERVICES.
33.a Privacy. The content of your email is your Confidential Information. However, you agree that we may use the message routing data for our general business and support purposes,
33.b Management of the Service. Cloudie Technologies will provision your initial mail environment, but unless specified in your order, you are responsible for managing your mail service.
33.c Filtering. Cloudie Technologies will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses. Cloudie Technologies recommends that you employ additional security, such as a PC virus scanner and personal firewall, on computers that connect to the Internet. Cloudie Technologies will use commercially reasonable efforts to deliver your email messages as per the Service Level Agreements associated with your order. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service may result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release Cloudie Technologies and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of Cloudie Technologies's filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient's email service provider.
33.d Access. To Mail Services You may access your Mail Services over the web or via the control panel stipulated in your order confirmation or deployment guide, through any supported Cloudie Technologies supported email client or by connecting directly to the IP address provided for the purposes of a Remote Desktop Session.
33.e Mailbox Limitations. Mail that exceeds the storage limits as stipulated in your order may be permanently lost. You may request a storage capacity upgrade of your mailboxes via the Cloudie Technologies support function, and it is your obligation to monitor and request the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit of 20 MB (including attachments) may also be lost if Mimecast has not been deployed with your email solution.
33.f Bulk Emails. You agree that you will not send bulk or commercial e-mail to more than four-thousand (4,000) users per day, at a rate of two-hundred and fifty (250) messages every twenty minutes.