Last Updated On: October 16, 2018
“Our Websites” include www.enablex.io and www.vcloudx.com; “Sales Activities” shall mean our sales and marketing programs, processes and activities. “Customer Support” shall mean our training and support functions, including our customer success programs. “Hardware and Software Solutions” shall mean our communication platform hosted on cloud or on-premise. “Cloud Services” shall mean the cloud services/network operated by or on behalf of VCLOUDX [i.e., the applicable VCloudX Entity providing the Services to you], or by any third-party contractor/service provider of VCLOUDX [i.e., the applicable VCloudX Entity providing the Services to you], or any public cloud services engaged by VCLOUDX [i.e., the applicable VCloudX Entity providing the Services to you], for delivering any SDK(s) and/or API(s) or other software solutions to you.
1. SERVICES: USE
- 1.4 VCLOUDX may provide update, upgrades, to the Services or parts thereof, from time to time, and you agree to install such updates, upgrades, within the timelines notified by VCLOUDX. You agree that your failure or omission to install such updates, upgrades, within the timelines notified to you, may result in VCLOUDX’s inability to make available the Services or the affected part thereof to you.
2. AUTHORITY TO ACCEPT
- 3.1 All access and use of the Services is subject to the payment of the fees applicable to the Service Package, as set forth in the MSA (“Fees”). Your failure to pay any portion of the Fees may, in VCLOUDX’s sole discretion, result in an immediate suspension or termination of your right to use any or all Services, and upon such suspension or termination, you shall immediately cease the use of any Services forming the subject of such suspension or termination pending further notice from VCLOUDX. Your obligation to pay the due portion of the Fees shall not be affected by such suspension or termination. The foregoing shall be without prejudice to VCLOUDX’s rights and remedies.
- 3.2 In the event that your access or usage of the Services, in whole or in part, exceeds the conditions of use associated with the Service Package selected by you under the MSA, you shall pay the fees attached to such excess usage, as per the rates and payment instalments communicated by VCLOUDX. If you fail or omit to pay such fees incumbent upon excess usage of the Services, as set forth herein, then, VCLOUDX reserves the right to suspend or terminate your usage of the Services, in whole or part, without prejudice to its rights and remedies, in accordance with the provisions of paragraph 3.1.
- 3.3 VCLOUDX reserves the right to revise the Fees, and your continued use of the Services shall be deemed to constitute your acceptance of such revision. The Fees paid to VCLOUDX shall be non-refundable except as provided under the applicable laws. No refunds or credits will be granted for partial periods of access or use of Services or unused terms or in the event of a price reduction or promotional offering.
- 3.5 If you have any concerns regarding any aspect of the Fees payable by you during the applicable period, then such concern(s) should be reported in writing to VCLOUDX at [*], no later than within three (3) days from the date on which the incident giving rise to the concern(s) arose. You shall be deemed to have waived your right to raise any concern(s) regarding the applicable payment of the Fees if the same are not brought to VCLOUDX’s notice within the aforesaid timeline. If any refund(s) of the Fees are made to you by VCLOUDX, pursuant to acceptance of any concern(s) in writing, then all such refund(s) shall only be made by way of credit(s) to your User Account or in any other manner deemed appropriate by VCLOUDX.
- 3.6 Your authorization to use the Services shall auto-renew for the period mentioned in the MSA, unless VCLOUDX terminates your right to access and use the Services, or your access to the Services is terminated pursuant to the MSA, or unless you terminate such auto-renewal no later than fifteen(15) days before the designated auto-renewal date, by logging into your User Account and following the instructions to effectuate such termination. Notwithstanding the termination of such auto-renewal, you shall be responsible to pay all Fees that is due, on the basis of your usage of the Services prior to the designated date of auto-renewal.
4. ACCOUNT SET-UP
In order to access and use the Services, you will be required to set-up a ‘user’ account with VCLOUDX (“User Account”). You will be responsible to:
- Provide an acceptable username and password to set-up the User Account;
- Maintain the security and confidentiality of such username and password;
- Ensure that such username and password are at all times correct and accurate.
VCLOUDX is not responsible for, and shall not at any time be construed to be responsible for, preserving or assisting in preserving the security of any username(s) or password(s) associated with a User Account, including any information or contents contained in such User Account.
5. TRIAL USE
- 5.1 VCLOUDX in its sole discretion, shall have the right to make available the Services, in whole or in part, to you, on a free trial or discounted use basis, including any promotional/beta use features of the Services for such duration as may be determined by VCLOUDX in its discretion (“Trial Use Features”).
- 5.2 If any Trial Use Features are made available to you, then you agree to use it in accordance with any additional terms or conditions of use notified by VCLOUDX in relation to such Trial Use Features. Without limiting the generality of the foregoing, you agree that the Trial Use Features may only be utilized for your ‘internal demonstration’ purposes, and may not be made available to any third parties outside your organization/business, including on any public/private website or platform, and/or, for any commercial/non-commercial purpose(s). Further, the Trial Use Features may not be utilized as part of or in conjunction with any third party products, services, features, unless expressly authorized by VCLOUDX in writing in each instance.
- 5.4 VCLOUDX [i.e., the applicable VCloudX Entity] reserves the right to suspend or terminate any or all Trial Use Features, at any time, without any prior notification to you, including pursuant to any breach of the provisions of this Section 5 by you.
6. PRODUCT INTEGRATION
- 6.2 You may use the VCLOUDX Marks [i.e., of the applicable VCloudX Entity] only for the purpose(s) of asserting to third parties including End Users, that the Combined Product comprises the Services or parts thereof, provided that such combination shall not be construed to represent, and you shall not lead a third party including an End User to believe, that VCLOUDX endorses or is in any manner associated with your products/services.
- 6.3 All goodwill emanating from the use of VCLOUDX’s Marks, shall inure to the sole benefit of VCLOUDX [i.e., the applicable VCloudX Entity].
- 6.4 You hereby grant to VCLOUDX, a limited, non-exclusive, sublicensable license, to your trademarks, logos, for the territory of the world, for the purpose of advertising to third parties that you use VCLOUDX’s Services.
7. ADJUNCT INFRASTRUCTURE
The access or use of the Services, including the SDK(s) and/or the API(s), may require the use of additional software or infrastructure products (“Additional Product(s)”). To the extent that any Additional Products are required, you shall be solely responsible for installing and for procuring the rights/license for such Additional Products. The use of the Additional Products shall be governed by the terms of service and additional covenants provided by the third party vendor. VCLOUDX assumes no responsibility for making available such Additional Products, and shall not be construed to be responsible or liable for any errors, defects, viruses, bots, software disabling codes, or incompatibilities, present in such Additional Products.
8. OPEN SOURCE SOFTWARE
9. CONFIDENTIALITY AND NON-DISCLOSURE
- 9.1 1 During the course of access or use of our Services, we may disclose to you, or you may gain access to, certain Confidential Information. You agree to maintain the confidentiality of such information, and to refrain from disclosing or sharing it with a third party unless specifically authorized by VCLOUDX in writing prior to such disclosure. “Confidential Information” shall mean any information that is proprietary to VCLOUDX (unless such information was publicly disclosed by an authorized representative of VCLOUDX), including, inter alia, financial information, details pertaining to VCLOUDX’s products or services, any material, electronic records, proprietary tools, know-how, provided to you by VCLOUDX or that you may obtain knowledge of at any time, whether disclosed orally or in writing and whether marked as ‘confidential’ or not. For the avoidance of doubt, ‘Confidential Information’ shall include all information which by its nature is considered to be confidential or proprietary to VCLOUDX.
- 9.2 The obligations of confidentiality set forth herein shall not apply to any information that:
- is in the public domain through no act or omission on your part, capable of being evidenced through written and dated documentation;
- is obtained by a third party through no act or omission on your part, capable of being evidenced through written and dated documentation;
- is required to be disclosed pursuant to an order of a competent judicial authority provided that you disclose only such portion of the information that is necessitated by the order, and notify VCLOUDX in writing prior to such disclosure
10. REPRESENTATIONS AND WARRANTIES
You hereby agree to indemnify, hold harmless, and defend, VCLOUDX, jointly and severally, and each VCloudX Entity’s directors, employees, officers, and affiliates (“Indemnitees”), from and against, any and all losses, claims, actions, damages, suits, proceedings, liabilities, fees (including reasonable attorneys’ fees), expenses, penalties, costs (“Losses”), arising as a result of, pursuant to, and/or, in relation to:
- any use of the Services in a manner which violates the permission for use granted to you;
- any use of the Services in violation of third party rights and/or the applicable laws.
12. LIMITATION OF LIABILITY
13. NO WARRANTY
14. SECURITY AND SERVICES AVAILABILITY
- 14.1 You shall be responsible for ensuring that your services/products, including any content, data, materials, information, hosted or stored on such products/services, are protected by suitable security processes and measures to prevent any unauthorized access or use of the Services or parts thereof.
- 14.2 VCLOUDX [i.e., the applicable VCloudX Entity] reserves the right to suspend or terminate your access and use of the Services, including the User Account, if VCLOUDX gains knowledge of any actual or threatened unauthorized access or use of the Services or any part thereof. VCLOUDX [i.e., the applicable VCloudX Entity] shall also have the right to suspend or terminate your access or use of the Services, including the User Account, on account of any: (a) scheduled maintenance of the Services; (b) unavailability of any or all of the Services due to the occurrence of a downtime; (c) a Service Unavailability (as defined in the SLA available at [*]); (d) pursuant to the receipt of any claim, action, notice, or the implementation of any governmental order or regulation, or a change in applicable law.
15. TERM AND TERMINATION
- You shall have the right to use the Services, as per the Service Package selected by you under the MSA, and in accordance with the duration of use specified in the MSA.
16. END USER(S)
17. PROHIBITED ACTIVITIES
18. GOVERNING LAW AND JURISDICTION
- 19.3 Survival. The conditions of use of the Services, the indemnity and exclusion of indirect damages, limitation of liability, waivers, your covenants, governing law and jurisdiction, shall survive the efflux of time.
- 19.4 Relationship. You acknowledge that you are not a partner, employee, or agent of VCLOUDX.
“Prohibited Activities” shall include any unlawful acts or omissions including any acts or omissions which are capable of infringing the rights of any third party, and shall specifically comprise the following:
- Using any software or hardware that is capable of introducing any viruses, defects, bots, software disabling codes, malfunctions, in the Services;
- Any act or omission aimed at reverse engineering any part of the Services to understand its capabilities, functionality, shortcomings, or to evade any filtering mechanism or any security requirements, including to develop any product or service that provides standalone functionality that is similar to the Services;
- Any act or omission aimed at circumventing or bypassing any security limitations imposed by VCLOUDX with respect to the use or access of its Services;
- Uploading, providing, making available, sending, any information or details which constitute personal information or data, and/or, sensitive personal information or data, under the applicable laws, if such information does not belong to you;
- Using the Services to engage in or facilitate any fraudulent or unlawful activity;
- Using the Services, or promoting the use of the Services in any manner which is capable of infringing the rights of any third party including rights in any form of intellectual property. Without prejudice to the generality of the foregoing, you shall not upload any content that violates applicable law or regulation or provides instructional materials on any illegal activity, or is obscene, libelous, defamatory, hateful, racially or ethically objectionable, disparaging, harmful to minors, contrary to public policy or otherwise unlawful, promotes or enables gambling or any game(s) of chance, infringes the rights of privacy or contract or tort rights of any individual, or any content that misappropriates a person’s trade secret, name, likeness or identity, any content that disrupts or interferes with the functionality of the Services or any servers or networks of VCLOUDX or any of its service providers, or any other content deemed inappropriate by VCLOUDX in its sole discretion;
- You shall not use any part of the Services to upload or disseminate content that constitutes “spam”, mail fraud, pyramid schemes, or investment opportunities or advice which is not permitted under law, and/or, that contains inappropriate language;
- You shall not use any part of the Services to upload or disseminate content promoting the use of alcohol, tobacco or illegal substances; nudity, sex, pornography, or adult-oriented content;
- You shall not use any part of the Services in a manner which is likely to harm a third party or cause any form of damage or liability to a third party;
- You shall not at any time claim that any proprietary material belonging to VCLOUDX, including the Services, and/or, any trademarks, trade names, logos belonging to VCLOUDX (“VCLOUDX Marks”), belong to you, and/or attempt to register any marks or logos similar to the VCLOUDX Marks in any jurisdiction of the world. You shall not use the Services in a manner which is capable of tarnishing or diluting the reputation or goodwill of VCLOUDX or the VCLOUDX Marks;
- You shall not use or access any part of the Services, and/or, facilitate any use or access of the Services, which is capable of interfering with the operations of VCLOUDX/Services and/or the functionality of any part of the Services;
- Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Services or any other conduct that adversely impacts the availability, reliability, or stability of the Services;
- You shall not use the Services to engage in any unsolicited marketing, advertising, or other such activities, and/or, disseminate any unsolicited mails or communications through the use of the Services;
- You shall not use the Services to procure any information or details, including any personal information, concerning another person;
- You shall not use a false identity or personal information to use any part of the Services;
- You shall not use the Services to reveal any information which is considered confidential or proprietary by a third party.