By submitting an application for trial use of or by using the CloudHelm™ platform, you hereby agree that these CloudHelm™ Demo Terms of Service (including the Terms below and the Acceptable Use Policy posted at www.cloudhelm.com/legal/contracts, the “Agreement”) form a legally binding agreement between you (“Client”) and nCloud, LLC (“nCloud”), and you agree to be bound by all the terms and conditions stated in this Agreement. If you are trying to access the CloudHelm services (the “Services”) on behalf of your employer or as a consultant or agent of a third party (your “Company”), you represent and warrant that you have the authority to act on behalf of and bind your company to the terms of this Agreement, and you agree that everywhere in this Agreement that refers to “you”, “your”, or “Client” shall also include your Company. If you do not agree to these terms, do not submit a demo application and do not use the Services. nCloud may change the terms of this Agreement upon posting them to the Service or the website through with you access the Service, and your continued use of the Service constitutes your acceptance of the changed terms of this Agreement. In consideration of the rights and obligations set forth below, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. License to Use Services. This is an agreement under which Client is licensed to test the Services. In testing the Services, Client agrees to abide by this Agreement and the CloudHelm Acceptable Use Policy posted at www.cloudhelm.com/legal/contracts. Client may use the Services for thirty days from the start date communicated by nCloud for the sole purpose of Client’s internal evaluation of the Service and not for any commercial or production purpose. Except for the limited rights granted herein, nCloud reserves all rights, title and interests in and to the Service. Client agrees that it will not and will not direct others to reverse engineer or copy any part of the Service.
2. Confidentiality. Client acknowledges and agrees that the Service and the technical information contained therein and all information generated through the Service, including ticketing, trouble reports and test results such as but not limited to benchmarking tests, are highly proprietary and confidential to nCloud. All data inputted into the Service by Client shall be the confidential information of Client. The Service shall only be used by Client for non-production use in accordance with this Agreement. Except as (i) permitted by this Agreement, or (ii) required by law or by any competent government authority, Client shall not use the Service or disclose the Service to any third party, either during the term of this Agreement or thereafter, without the prior written consent of nCloud. Client shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of the Service to protect it from falling into the public domain or the possession of unauthorized persons, which measure shall include the highest degree of care that Client uses to protect Client’s own information of a similar nature, but in no event less than a reasonable degree of care. Client shall not cause or permit the reverse engineering or disassembly or decompilation or translation into humanreadable form of the Service (or any portion thereof). Client shall promptly notify nCloud in writing of any misuse or misappropriation of the Service, which may or should come to Client’s attention.
2.2 Return of Materials. Upon written request form nCloud at any time or upon termination of this Agreement, Client shall promptly return all tangible information provided by nCloud and to certify to nCloud in writing that the same has been destroyed. Client acknowledges that nCloud may terminate Client’s access to the Services at any time.
2.3 Injunctive Relief. Client acknowledges and agrees that unauthorized disclosure or use of the Service, or any information contained therein, will diminish the value thereof to nCloud. Therefore, if Client breaches any obligations set forth in this Section 3, nCloud shall be entitled to equitable relief to protect its interests in the Service, or any information contained therein, including but not limited to injunctive relief, as well as any other remedies available to nCloud in equity or law.
3. Publicity/Suggestions. In consideration of the evaluation license granted under Section 1, Client agrees that nCloud may approach Client for reference quotes for nCloud products related to the Service. Client also agrees to reasonably cooperate with nCloud in the evaluation of the Service and to provide feedback to nCloud upon nCloud’s request. Client hereby assigns to nCloud all right, title and interest in and to any invention, discovery, improvement or derivative works, made, conceived or reduced to practice by Client alone or jointly with others, in connection with the evaluation of the Service. While nCloud intends to commercially release a version of the Service product described in the Service, nCloud reserves the right to not release such version or to release a version with altered features, specifications, capabilities, functions or other characteristics. Any license or purchase of any nCloud products, if any, shall be subject to a separate agreement to be negotiated between Client and nCloud.
4. Disclaimer of Warranties and Limitation of Liabilities. THE SERVICE IS BEING PROVIDED BY NCLOUD TO CLIENT, AND ONLY TO CLIENT, ON AN “AS IS” BASIS. NCLOUD MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
IN NO EVENT SHALL NCLOUD BE LIABLE TO CLIENT OR ANY CUSTOMER OR AFFILIATE OR AGENT OF CLIENT FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS’ OR EXPERTS’ FEES) ARISING FORM THE USE OF THE SERVICE UNDER THIS AGREEMENT OR OTHERWISE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER OR NOT NCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
5. Term. Client may terminate this Agreement at any time prior to the termination date by notifying nCloud. nCloud may terminate this Agreement at any time upon written notice to Client. This Agreement will automatically terminate upon 30 days from Service availability. Termination of this Agreement shall not relieve Client of any obligations set forth in this Agreement with respect to the protection of the Service, and all such obligations shall continue in accordance with the terms of the Agreement in perpetuity.
6. Governing Law and Venue. This Agreement will be governed by and construed I accordance with the laws of the State of Illinois, irrespective of its choice of laws principles, and any legal action taken to enforce this Agreement shall be brought in a court of competent jurisdiction in Lake County, IL.
7. No Assignment. Client shall not assign, transfer or pledge this Agreement, or any interest, license or rights of any kind herein, in any manner without the prior written consent of nCloud.
8. Independent Contractors. This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between the parties. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever.
9. Severability. If any provision of this Agreement or portion thereof is determined by a court of competent jurisdiction, or declared under any law, rule or regulation of any government having jurisdiction over the parties hereto, to be invalid, illegal or otherwise unenforceable, then such provision will, to the extent permitted by the court or government not be voided but will instead be construed to give effect to its intent to the maximum extent permissible under applicable law and the remainder of this Agreement will remain in full force and effect according to its terms.
10. Entire Agreement; waiver. This Agreement constitutes the entire agreement between Client and nCloud concerning its subject matter and supersedes any and all prior or contemporaneous, written or oral negotiations, correspondence, understandings and agreements between Client and nCloud respecting the subject matter of this Agreement. No waiver of any of the provisions of the Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
11. Survival of Rights and Obligations. The rights and obligations of the parties contained in Sections 2 – 4, and 6-12 will survive any termination of this Agreement.
12. GENERAL. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all communications relating to the subject matter. This Agreement may be modified only in an agreed upon writing between nCloud and Client. Client may not assign its rights or obligations under this Agreement without the prior written consent of nCloud. If any provision of this Agreement is held by a court to be contrary to law, the remaining portions of this Agreement will remain in full force and effect. The waiver by any party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights. Any action taken by a party to enforce this Agreement shall be brought in a court of competent jurisdiction located in Chicago, Illinois, and Illinois law shall apply (excluding conflicts of law. Client agrees that any breach or potential breach of Sections 4, 5, 8, or 10 of this Agreement will cause irreparable damage to nCloud and that in the event of such breach or potential breach nCloud shall have, in addition to any and all remedies of law, the right to seek an injunction, specific performance or other equitable relief without the posting of a bond, and ), and nCloud shall be entitled to reimbursement of reasonable attorney fees and court costs incurred in enforcing these provisions.