By registering for and using the CloudHelm® platform, you agree that these CloudHelm® Terms and Conditions of Use (including the terms below and the Acceptable Use Policy, the “Terms”) form a legally binding agreement between you and nCloud, LLC, and you agree to be bound by these Terms.
Your use of the CloudHelm® Services is governed by these Terms. If you are accessing the CloudHelm® Services on behalf of your employer or as a consultant, contractor, or agent of any organization, you represent and warrant that you have the authority to act on behalf of and bind your employer or such organization to these Terms, and you agree that everywhere in these Terms that refers to “you”, or “your” shall also include your employer or Organization. The CloudHelm® Services are not targeted toward, nor intended for use by, any person under the age of 13. By using the CloudHelm® Services, you represent and warrant that you are not under the age of 13. If you are under the age of 13, you may not use the CloudHelm® Services.
If you do not agree to these Terms, do not do register for or use the CloudHelm® Services. nCloud may change these Terms upon posting an updated version at www.cloudhelm.com, and your continued use of the CloudHelm® Services constitutes your acceptance of the changed Terms. You agree to use the CloudHelm® Services for legal purposes only, and to permit, and if applicable, require your employees and agents and customers to permit, only use by persons authorized by you who agree to be bound by these Terms. You are responsible for any violations of these Terms by you, your agents, or your End Users.
Some jurisdictions have consumer protection and other legislation which may apply to the CloudHelm® Services, and which do not allow certain provisions such as limitations of liability and exclusion of certain warranties, among others. To the extent that a limitation, exclusion, restriction, or other provision set out in these Terms is prohibited by applicable law, such limitation, exclusion, restriction or provision may not apply to you.
THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND NCLOUD WILL BE RESOLVED BY BINDING ARBITRATION. PLEASE REVIEW SECTION P(8) BELOW. BY REGISTERING FOR AND/OR USING THE CLOUDHELM® SERVICES, YOU ACKNOWLEDGE AND AGREE THAT ALL DISPUTES WILL BE RESOLVED ON AN INDIVIDUAL BASIS THROUGH BINDING ARBITRATION.
B. DEFINED TERMS.
Some words used in these Terms have particular meanings:
“Acceptable Use Policy” or “AUP” means the acceptable use policy available at www.cloudhelm.com/legal/acceptable-use-policy.
“API” means application programming interface.
“Business Day” means Monday to Friday, excluding public and nCloud holidays.
“Business Hours” means 8:00 a.m. – 5:00 p.m. Central Standard Time on a Business Day.
“CloudHelm® Services” means the CloudHelm® software and related services licensed to you, and any nCloud services which you self-provision through administrative access or which you utilize via an API.
“Confidential Information” means all information disclosed by one party to the other, whether before or after the effective date of the Terms, that the recipient should reasonably understand to be confidential, including: (i) unpublished prices and other terms of service, audit and security reports, benchmarking tests, product development plans, non-public information of the parties relating to their business activities or financial affairs, data center designs (including non-graphic information Client may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is publicly available, or independently developed by a recipient without reference to the disclosing party’s Confidential Information, or that becomes available to the receiving party other than through breach of the Terms or applicable law, shall not be “Confidential Information” of the disclosing party.
“End User” means any person you allow to access your instance of the CloudHelm® Services, or who otherwise accesses the Hosted System through your account or credentials.
“Hosted System” means a combination of hardware, software and networking elements that comprise the CloudHelm® Services.
“nCloud” means nCloud, LLC.
“Product Terms” means the additional terms and conditions, if any, for the third party tools used by nCloud to provide the CloudHelm® Services.
“Support” means the nCloud support system for CloudHelm® Services that will be available twenty-four (24) hours per day, seven (7) days per week.
“Your Data” means all data of any kind (including your software, if any), and all other content that is provided by you or your End User(s) for use with the Hosted System, or otherwise processed by you or your End User(s), through the CloudHelm® Services.
C. ACCESS TO THE CLOUDHELM® SERVICES
1. License to Use Services. Subject to these Terms, nCloud grants you a worldwide, non-exclusive, revocable, non-sublicensable and non-transferable license to use the CloudHelm® Services. Except for the limited rights granted herein, nCloud reserves all rights, title and interests in and to the CloudHelm® Services and Hosted System. You agree to: (i) comply with applicable laws and these Terms, (ii) pay the fees for the CloudHelm® Services when due, (ii) ensure that your user account and administrator information is true, accurate, current and complete; and (iii) cooperate with nCloud’s reasonable investigation of Service outages and any suspected breach of the Terms. You are solely responsible for your use of the Services in compliance with laws, rules, regulations or directives applicable to data privacy and security.
2. Access to the CloudHelm® Services. You may access the CloudHelm® Services via an nCloud-provided user interface. nCloud may modify its user interface at any time. You agree that nCloud may establish new procedures for your use of the CloudHelm® Services, including as nCloud deems necessary for the optimal performance of the CloudHelm® Services. You acknowledge that you do not acquire any ownership interest in or right to possess any part of the Hosted System or the CloudHelm® Services, and you have no right of physical access to the Hosted System. You agree that nCloud may migrate the Hosted System or Your Data within or between locations, including if nCloud determines in its reasonable judgment that migration is required to remediate service degradation or shared resource constraints. nCloud may limit traffic speed to maximum of 5 Mbs in and 5 Mbs out sustained traffic at any time and without notice.
2. Your Data. Except as provided in this section, nCloud obtains no rights under these Terms to Your Data. You consent to nCloud’s use of Your Data to provide the CloudHelm® Services to you and your End Users. You represent and warrant that (a) you or your licensors own all right, title and interest in and to Your Data and all other materials you or your End Users store or transmit through the Hosted System; (b) you have all rights in Your Data and all other materials you or your End Users store or transmit through the Hosted System to grant the rights contemplated by these Terms; and (c) Your Data and all other materials you or your End Users store or transmit through the Hosted System will at all times comply with the AUP. You agree that you will comply in all respects with the nCloud Intellectual Property Rights Policy, which can be found at www.cloudhelm.com.
3. Support. nCloud will only provide Support to you through the authorized contacts identified in your nCloud control panel. You will be the first line of support for your End Users, including basic troubleshooting for the CloudHelm® Services, and you agree that you will not refer your End Users to nCloud for direct support.
4. Third Party Software. Depending on your chosen services, the CloudHelm® Services may include installation of software from third party providers, including Microsoft. nCloud reserves the right to modify, change, or discontinue any third party software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the third party software. The third party software is neither sold nor distributed to you, and you may use the third party software solely as part of the CloudHelm® Services. You may not use the third party software outside of the CloudHelm® Services. We may provide your personal information to third party providers as required to provide the third party software. You acknowledge and agree that your use of the third party software is subject to our agreement(s) with the third-party providers. In addition, if the third party software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the third party software is subject to such service or license agreement. You may not download, install, or use any third party software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the third party software. You may not reverse engineer, decompile, or disassemble the third party software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third party providers (and their affiliates and suppliers) make no representations or warranties about any third party software offered in connection with the CloudHelm® Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the third party software. You acknowledge and agree that any third party software will be supported by us and not by the third-party providers (or their affiliates or suppliers).
D. PAYMENT TERMS
1. Payment Method. nCloud accepts credit card payments through a third party payment processor. Processing of payments may be subject to the terms, conditions, and privacy policies of the payment processors in addition to these Terms. nCloud is not responsible for the acts, errors, and omissions of these payment processors. You must provide current, complete, and accurate payment information throughout the term of your services.
2. Billing. The CloudHelm® Services are charged to your selected payment method on a monthly basis. By selecting your desired level of service during registration, or later through the CloudHelm® administrative interface, you agree that nCloud may charge your provided credit card all charges at the prices then in effect for your use of the Services. nCloud may increase its prices at any time, which will take effect 30 days after notice of the pricing change.
E. TERM AND TERMINATION.
1. Term. The term of service for the CloudHelm® Services shall automatically review on a month-to-month basis, unless you cancel your service through the CloudHelm® administrative interface. Charges for any partial months of service will be billed on a prorated basis based on actual usage.
2. Responsibilities upon Termination. Before termination or expiration of your subscription, you must retrieve a copy of Your Data and delete Your Data from the Hosted System. You will not have access to the Hosted System or to Your Data stored on the CloudHelm® Services during a suspension or following termination or expiration. You acknowledge that if you terminate the CloudHelm® Services or delete instances through the control panel, API or other means, Your Data contained thereon may no longer be recoverable. Upon expiration or termination of the Terms, you must discontinue use of the CloudHelm® Services and relinquish use of the IP addresses and server names assigned to you by nCloud in connection with CloudHelm® Services, including pointing the DNS for your domain name(s) away from nCloud services. You agree that nCloud may, as it determines necessary, make modifications to DNS records and zones on nCloud managed or operated DNS servers and services.
F. SUSPENSION OF SERVICES.
1. Grounds for Suspension. nCloud may suspend the CloudHelm® Services without liability if:
a. nCloud believes that the CloudHelm® Services are being used (or have been or will be used) in breach of these Terms (including the AUP);
b. nCloud discovers that you are or are affiliated in any manner with, a person or entity who has used similar services abusively in the past;
c. you fail to cooperate with nCloud’s reasonable investigation of any suspected breach of the AUP;
d. nCloud believes that the CloudHelm® Services have been accessed or manipulated by a third party without your consent;
e. nCloud believes the suspension of the CloudHelm® Services is necessary to protect the Hosted System or any nCloud clients;
f. nCloud is not receiving payment for the CloudHelm® Services; or
g. nCloud is required by law or a regulatory or government body to suspend your services.
2. Notice of Suspension. nCloud will give you at least 5 days’ advance notice of a suspension and a chance to cure the grounds on which the suspension are based, unless nCloud determines in its sole discretion that an immediate suspension is necessary to protect nCloud or its other clients from imminent and significant operational, legal, or security risk. In such event, nCloud will provide notice as promptly as reasonably practicable following suspension.
3. Fees and Remedies. If the suspension was based on your breach of the Terms, then nCloud may continue to charge you the fees for the CloudHelm® Services during the suspension, and may charge a reasonable reinstatement fee at nCloud’s discretion upon reinstatement of the CloudHelm® Services. If the suspension was based on a vulnerability or defect that is within your environment or otherwise within your control, then you must address the vulnerability or defect prior to nCloud placing your services back in service. nCloud’s exercise of its right to suspend service does not prejudice or waive any other rights it may have under this Terms.
G. TERMINATION FOR BREACH.
1. NCloud right to terminate. nCloud may terminate your subscription for breach upon notice if:
a. nCloud discovers that any information you provide is materially inaccurate or incomplete and impairs nCloud’s ability to provide the CloudHelm® Services, as applicable;
b. Payment of any amount is overdue and remains unpaid four or more Business Days following receipt of notice;
c. You fail to comply with any obligation stated in the Terms and does not remedy the failure within thirty (30) days of notice by nCloud describing the failure;
d. You breach these Terms more than once even if you remedy each breach;
e. a credit report indicates that you no longer meet nCloud’s reasonable credit criteria, provided that nCloud will give you at least ten days to migrate your environment out of nCloud before nCloud terminates on these grounds; or
f. Your use of the CloudHelm® Services is in violation of these Terms and you fail to remedy the breach within ten (10) days of written notice.
2. Termination for insolvency. Either party may terminate the Terms with immediate effect on written notice if the other party (i) is unable to pay its debts; (ii) enters into compulsory or voluntary liquidation; (iii) holds or disregards a meeting of its creditors; (iv) has a receiver or manager or an administrator appointed (or an application is made to the court for the same); or (v) ceases for any reason to carry on business or takes or suffers any action which means that it may be unable to pay its debts (each an “Insolvency Event”). Notwithstanding anything to the contrary in the Terms, in the event of a termination by nCloud the fees for the CloudHelm® Services shall become due immediately upon the occurrence of an Insolvency Event.
H. CONFIDENTIAL INFORMATION. Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its respective legal rights under the Terms, or as may be required by law. Each party may disclose the other’s Confidential Information (a) to a law enforcement or government agency if requested or if the receiving party reasonably believes, in good faith, that the other’s conduct may violate applicable criminal law; (b) as required by law; (c) in response to a subpoena or court SOW or other compulsory legal process, provided that the receiving party agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information (or prompt notice in advance of disclosure, if seven (7) days’ advance notice is not reasonably feasible), unless the law forbids such notice; or to its respective employees, service providers, Affiliates, suppliers, agents and representatives (“Representatives”), provided such Representatives agrees to confidentiality measures that are at least as stringent as those stated in this Terms.
I. DISCLAIMERS. NCLOUD DISCLAIMS ALL WARRANTIES NOT EXPRESSLY STATED IN THESE TERMS TO THE MAXIMUM EXTENT PERMITTED BY LAW INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Any services that nCloud is not contractually obligated to provide but that nCloud may perform for Client at your request are provided on an AS IS basis without warranties of any kind, express or implied, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Some of the Services may be designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the legal and regulatory requirements applicable to you and your use of the CloudHelm® Services, and for selecting and using those services in a manner that complies with your obligations under the applicable legal and regulatory requirements. You shall not hold nCloud or any nCloud affiliate liable for any failure of nCloud to comply with laws applicable to you but not to nCloud’s business generally, including but not limited to data privacy and protection laws. nCloud personnel may from time to time recommend third party software or other products and services for your consideration and may also make available to you third-party products or services, including third-party applications through deployment or implementation tools. nCloud makes no representation or warranty regarding third party products and services but shall instead pass through available manufacturer warranties, if any. All third party software and other products and services will at all times remain subject to the relevant third party terms.
J. LIMITATION ON DAMAGES. Neither nCloud nor its affiliates shall be liable for any indirect, special, incidental, exemplary, or consequential loss or damages of any kind; any loss of profit or income or business or business opportunity; any loss or corruption of data; any anticipated savings or revenue; any punitive damages; any loss of goodwill or reputation; or any other loss that could have been avoided by the damaged party’s use of reasonable standards of care, even if nCloud has been advised or should be aware of the possibility of such damages. The maximum aggregate liability of nCloud and any of its affiliates for claims of loss or damages in connection with the CloudHelm® Services under any theory of law shall not exceed the lesser of (i) the amount of fees paid to nCloud for the Service causing the claim in the six (6) months prior to the occurrence of the event giving rise to the claim, or (ii) five hundred US dollars (US$500.00). The parties agree that the limitations on damages above are agreed allocations of risk constituting in part the consideration for nCloud’s provision of the services, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy. Nothing in this Terms limits or excludes either party’s liability for (i) death or personal injury caused by its gross negligence; (ii) fraud or fraudulent misrepresentation; and (iii) any loss or damages where such limitation or exclusion is expressly prohibited by applicable law.
K. INDEMNIFICATION. In the event of a claim against nCloud, its affiliates, or their respective employees, agents, or suppliers (collectively, the “Indemnitees”) arising out of: your actual or alleged negligence; your or your End Users’ breach of law or these Terms, including the AUP and Intellectual Property Rights Policy; your or your End Users’ breach of any legally required security obligation; your or your End Users’ violation of any copyright, patent, trademark, trade dress, or other intellectual property right; your failure to meet your privacy or data protection obligations under applicable law; any claim by an End-User; any claim by a third party arising out of your instance of the Hosted System; or breach of any terms between you and your End-Users, then you shall hold harmless, defend and indemnify the Indemnitees (including payment of reasonable legal fees) and pay any damages award, fine, or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this section include claims arising out of the acts or omissions of your employees, End-Users or agents, 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 are not authorized by you. 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. In the event an Indemnitee determines that you are unwilling or unable to provide an adequate defense, each Indemnitee may choose legal counsel to defend the claim, and you shall pay such expenses directly provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with nCloud’s reasonable requests for assistance and cooperation in the defense of the claim. If you provide the defense, you may not settle the claim without Indemnitees’ consent, although such consent may not be unreasonably withheld, delayed or conditioned. You must pay reasonable legal fees, and expenses, due under this section as Indemnitees incur them. You shall also pay reasonable legal fees and other expenses Indemnitees incur in connection with any dispute between persons having a conflicting claim to control your CloudHelm account, or any claim by your End-Users arising from an actual or alleged breach of your obligations to them.
L. INTELLECTUAL PROPERTY.
1. Ownership of Intellectual Property. Each party retains all rights, titles and interests in and to its respective trade secrets, inventions, trademarks, copyrights, and other intellectual property. Any intellectual property developed by nCloud during the performance of the CloudHelm® Services shall belong to nCloud. nCloud does not acquire any ownership interest in or right to Your Data except as expressly provided in these Terms.
2. Third Party Products. All third party products that nCloud provides for your use are subject to the relevant third party terms, as applicable. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear through the CloudHelm® Services. You may not reverse engineer, decompile or disassemble any software nCloud provides except and to the extent that you are expressly permitted by applicable law to do so, and then only following at least ten (10) days’ advance written notice to nCloud. In the event that nCloud distributes any open source software to Client as part of the CloudHelm® Services (including for example Linux based software, OpenStack software, and software licensed under the Apache, GPL, MIT or other open source licenses) then such open source software is subject to the terms of the applicable open source license. There are no warranties provided with respect to any open source software and all implied warranties are disclaimed. In the event of any conflict between these Terms and the applicable open source license with respect to any open source software, the terms of the applicable open source license shall control.
3. Customer Provided Licenses. If you use any non-nCloud provided software on your portion of the Hosted System, you represent and warrant to nCloud that you have the legal right to use the software in that manner. If nCloud has agreed to install, patch or otherwise manage software provided by you in reliance on your license therefore, then you represent and warrant that your agreement with the software vendor permits nCloud to perform these activities. On nCloud’s request, you will certify in writing that you are in compliance with the requirements of this section and any other software license restrictions that are part of the Terms, and will provide evidence of your compliance as nCloud may reasonably request. If you fail to provide the required evidence of licensing, nCloud may, at its option, either: (i) charge you its standard fee for the use of the software in reliance on nCloud’s licensing Terms with the vendor, if any, until such time as the required evidence is provided; or (ii) suspend or terminate the impacted services.
4. Intellectual Property Infringement. If nCloud or any of its clients is faced with a credible claim that the CloudHelm® Services infringe the intellectual property rights of a third party, and nCloud is not reasonably able to obtain the right to use the infringing element or modify the CloudHelm® Services such that they do not infringe, then nCloud may terminate the CloudHelm® Services on notice of at least thirty (30) days, and will not have any liability on account of such termination except to refund amounts paid for unused CloudHelm® Services, if any, as of the time of termination.
M. SECURITY OF HOSTED SYSTEM AND PRIVACY
1. Security of Hosted System. Subject to your responsibilities under these Terms, nCloud shall implement reasonable and appropriate technical and organizational measures to protect your instance of the Hosted System against unauthorized access. Client acknowledges that it is solely responsible for implementing appropriate security measures within its own environment in the CloudHelm® Services. nCloud’s security obligations with respect to Your Data are limited to those obligations described in this section. nCloud makes no other representation regarding the security of Your Data. nCloud is not responsible to you for unauthorized access to Your Data or the unauthorized use of the CloudHelm® Services that does not directly result from nCloud’s failure to meet its security obligations stated in the Terms.
2. Your Data Privacy Obligations. You warrant that you will process Your Data in compliance with all applicable data protection or privacy laws and regulations. You must, or you must require your End User(s) to, implement those technical and organizational measures required by the applicable data protection and privacy laws applicable to your use of the CloudHelm® Services and the nature and the volume of Your Data stored on the Hosted System or processed through your use of the CloudHelm® Services. You are responsible for providing any necessary notices to individuals and for obtaining any legally required consent from individuals in relation to provision of any services to you or your processing of Your Data. You are responsible for any losses or other consequences arising from your failure to implement reasonable security measures as set forth herein. You agree not to provide nCloud with regulated data (including personally identifiable or health information) via email, support ticket, or other means other than by uploading such data into its instance unless nCloud has agreed otherwise in writing.
3. Your Data Security Obligations. nCloud does not have knowledge of or access to Your Data stored on the Hosted System. You are solely responsible for:
a. determining the suitability of the CloudHelm® Services in light of the type of data stored by you or your End-Users or otherwise processed by you or your End User(s) through your use of the CloudHelm® Services;
b. your use of the Hosted System and the CloudHelm® Services by any person utilizing your passwords or who gains access to the Hosted System or the CloudHelm® Services as the result of your failure to utilize reasonable security precautions;
c. taking all reasonable steps to mitigate the risks inherent in transmitting Your Data to and from and while stored on the Hosted System using the CloudHelm® Services, including for any data loss or corruption;
d. maintaining reasonable and appropriate security measures within your environment; and
e. ensuring against bots and any other malicious use of your account.
Any malicious use of CloudHelm® Services may result in suspension or rate limiting of your services, at nCloud’s sole option and without notice.
“Reasonable security precautions” include, but are not limited to:
a. encrypting any of Your Data covered by any data privacy or protection law, rule, directive or regulation to which you or Your Data is subject; and any other regulated financial, health or sensitive data, in each case while it is transmitted and while stored on the Hosted System,
b. maintaining current backups of Your Data,
c. implementing and maintaining privacy protections and security measures within any applications provided by you or on your behalf, for use in your instance of the Hosted System, including but not limited to establishing appropriate access control and intrusion prevention mechanisms, and
d. designating authorized administrators and End Users under your account and establishing controls for appropriate access and use of login credentials associated with your account.
You agree to immediately notify nCloud of any unauthorized use of your account or the Hosted System, or of any other breach of security. You also agree to timely cooperate with any investigation of security-related breaches.
4. Data Backup/Archiving. You acknowledge that the CloudHelm® Services do not include data backup services, and that nCloud is not responsible for lost or corrupted data. You should maintain at least one current offsite backup copy of Your Data and programs stored on the Hosted System.
N. SERVICES MANAGEMENT AGENT. The CloudHelm® Services include an optional service management agent which nCloud uses to track system information so that it can more efficiently manage various service issues, or to identify security vulnerabilities. You may elect to disable the services management agent. Your services will become “Unsupported”, as described below, if you disable or interfere with nCloud’s services management agent(s).
O. ADDITIONAL TERMS FOR ELECTED ADDITIONAL SERVICES.
1. Cloud Server Images. The CloudHelm® Services utilized standard server images. If you provision a cloud server or other service using your own image snapshot or other non-standard installation, then nCloud shall have no obligation to provide support for that service, and any support provided shall be on an AS IS and hourly basis at additional charge. You agree that if you use the CloudHelm® Services to share or receive an image, then such image sharing or receipt is at your sole risk. You agree to indemnify and hold harmless the Indemnitees for any loss (whether direct or indirect/consequential), damage, injury or other costs or expense (including reasonable legal fees) suffered by the Indemnitees arising from your unlawful or unlicensed sharing or receipt of the image, including in respect of unlawful or unlicensed sharing or receipt of software, Your Data or personally identifiable or personal health information. You may not import or export images without permission of the image owner.
2. Access Control. Your designated account administrator is responsible for role administration. You may self-manage role administration via the nCloud control panel or API. When making permission changes with role-based access control services, there may be a delay before the implementation of changes, including self-managed changes. nCloud is not responsible for any loss that may occur due to the delayed implementation of changes.
3. Test Services. If you use any services that have been designated as a “beta” service, limited release, pilot test, early access program, preview or with similar designation, then your use of that service is subject to the terms of nCloud’s Beta Test Agreement, a copy of which is available upon request.
4. Unsupported Configuration Elements or Services. If you request implementation of hardware, software or a cloud-related service in a manner that is not customary at nCloud, or that is in “end of life” or “end of support” status nCloud may designate the item or service as “unsupported”, “non-standard” or “as is,” or using a similar term (an “Unsupported Service”). nCloud makes no representation or warranty whatsoever regarding the Unsupported Service, and you agree that nCloud shall not be liable to you for any loss or damage arising from the provision of the Unsupported Service. Service level guarantees shall not apply to the Unsupported Service, or to any other aspect of the services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with nCloud’s other services, including backup or monitoring.
1. Complete Terms. These Terms constitute the complete and exclusive understanding between you and nCloud and supersede and replace any prior understanding or communication, written or oral. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of nCloud which is not set out in the Terms.
2. Force Majeure. Neither party will be in breach of the Terms if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
3. Notices. Your routine communications to nCloud regarding the CloudHelm® Services, including any notice of non-renewal, should be sent to your nCloud cloud account team using Client’s nCloud cloud control panel. If you want to give a notice to nCloud, it must be sent by electronic mail to firstname.lastname@example.org and via overnight delivery prepaid with delivery receipt to: Anthony Donato and General Counsel, Netrix, LLC, 2801 Lakeside Drive, Bannockburn, IL 60015. nCloud’s routine communications regarding the CloudHelm® Services and legal notices will be sent to the individual(s) Client designate as Client’s contact(s) on Client’s account either by electronic mail or overnight courier. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day as of the beginning of the first Business Day following the time delivered, except that notices of AUP revisions are deemed delivered at the time that revised AUP is posted. 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.
4. Interpretation. The headings or captions in the Terms are for convenience only and are not part of the Terms. The use of the word “including” in the Terms shall be read to mean “including without limitation”.
5. No Partnership. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other, nor does either party has the right to bind the other to any Terms with a third party.
6. Export Matters. You represent and warrant that you are not located in or a national of any country that is embargoed or restricted under export regulations or are otherwise a person or entity to whom nCloud is legally prohibited to provide the CloudHelm® Services. You represents and warrants and undertake that you will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the CloudHelm® Services or any information or technical data provided by nCloud, or any of Your Data, in any manner which would cause nCloud or its affiliates or other clients or end users to breach any applicable export control laws, rules, or regulations of any jurisdiction worldwide. Without limitation, you represent and warrant and undertake that you will not provide or facilitate administrative access to or permit use of the CloudHelm® Services by any persons (including any natural person, government or private entity or other form of body corporate) located in or is a national of any country that is embargoed or restricted under applicable export laws, rules or regulations worldwide.
7. Governing Law. These Terms are governed by the laws of the State of Illinois, exclusive of any choice of law principles, and the USA. The Terms shall not be governed by the United Nations Convention on the International Sale of Goods. Each party agrees that any dispute or claim, including, statutory, contract or tort claims, relating to or arising out of the Terms or the alleged breach of the Terms, shall, upon timely written request of either of us, be resolved first by at least one meeting between an officer of both parties within 30 days from the notice of the dispute, and if that is unsuccessful, any legal action shall be filed in a court of competent jurisdiction located in Chicago, Illinois, and each party hereby waives it’s right to assert any other venue. Each party waives any right to a trial by jury. In the event of a dispute between the parties regarding the interpretation of applicable law or the AUP, nCloud’s reasonable determination shall control.
8. Disputes. Any dispute or claim relating in any way to these Terms or your use of the Hosted System or the CloudHelm® Services will be resolved by binding arbitration rather than in court, except that you may assert claims in small claims court if your claims qualify. Arbitration proceedings will be conducted in Chicago, Illinois by the American Arbitration Association under its rules, which are available at www.adr.org. Each party agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Each party agrees that it will not bring a claim under the Terms more than one year after the time that the claim accrued. Each party shall pay its own attorney fees, except that in an action to collect amounts due hereunder, Client shall reimburse nCloud’s costs of collection including reasonable attorney fees and court costs. In the event of any breach of these Terms by nCloud, you agree to enforce these terms and take action solely against nCloud, LLC.
9. No Waiver. Each party may enforce its respective rights under the Terms even if it has waived the right or failed to enforce the same or other rights in the past.
10. Survival. All provisions of the Terms that by their nature are intended to survive expiration or termination of the Terms shall survive expiration or termination of the Terms.
11. Unenforceable Provisions. If any part of the Terms is found unenforceable by a court or other tribunal, the rest of the Terms will nonetheless continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable but still consistent with the business and financial objectives of the parties underlying the Terms.