Last modified: January 10, 2019
The following are the terms and conditions for the use of the disaster recovery and migration services offered and provided by CloudEndure (the “Service”). For the avoidance of doubt, the Service shall be provided via CloudEndure and not by any Reseller (as such term is defined below).
If the Service was obtained from CloudEndure Inc. (a company incorporated under the laws of the state of Delaware) or one of its Resellers, then the Customer’s engagement under these Terms is with CloudEndure Inc., and if the Service was obtained from CloudEndure Ltd. (a company incorporated under the laws of the state of Israel) or one of its Resellers, then the Customer’s engagement under these Terms is with CloudEndure Ltd. (CloudEndure Inc. and CloudEndure Ltd. shall be referred to herein, as applicable, as “CloudEndure“).
1.1 The individual (the “User“) opening an account on CloudEndure’s website (the “Account“) does this on behalf of his/her organization (the “Customer“). In order to use the Service, the User must provide truthful, accurate, and current information about himself/herself, including such User’s email address at the Customer’s domain (it is prohibited to use User’s personal email), as well as additional set-up information (“Registration Data”). The User must maintain and update the Registration Data so that it remains at all times accurate, current and complete.
The User must also provide technical information about the Customer’s servers and cloud account(s) for which the Customer wishes to use the Service (jointly with the Registration Data and additional data generated by the Service: “Customer Configurations”). As part of the Account set-up and registration process, the User (on behalf of the Customer) will choose a username and a password. The User and the Customer will be responsible for maintaining the confidentiality of the User’s password, and agree not to transfer the use of, or access to, the Service to any third party. The Customer will indemnify CloudEndure and the Related Parties (as defined below) from and against any and all Damages (as defined below) that are based on or arise directly or indirectly out of or from any use of, or access to, the Service by any third party.
The Customer is fully and solely responsible for any and all activities that occur through the Account. CloudEndure cannot and will not be liable for any loss and/or damage resulting from the Customer’s failure to comply with this security obligation. The Customer agrees to immediately notify CloudEndure of any unauthorized use of the User’s password or the Account or any other breach of security, and to simultaneously make sure that the User resets his/her password.
1.3 The User accepting these Terms on behalf of the Customer hereby represents and warrants that he/she has the authority to bind the Customer. IF THE USER DOES NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER, THE USER WILL INDEMNIFY, DEFEND AND HOLD CLOUDENDURE AND ITS RELATED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES THAT ARE BASED ON OR ARISE DIRECTLY OR INDIRECTLY OUT OF OR FROM THE USE OF THE SERVICE BY THE USER ON BEHALF OF THE CUSTOMER.
2.1 Non-Exclusive License. Subject to and conditioned upon Customer acceptance of these Terms and Customer ongoing compliance with these Terms, CloudEndure grants the Customer a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Service, solely for the Customer’s own internal business use (except as set forth in Section 11 below), and in strict compliance with these Terms. The license granted herein shall also include the right to use the Service’s documentation and certain software components to be deployed on the Customer’s servers for the provisioning of the Service, and such documentation and software components shall be included in the definition of “Service” for the purpose of these Terms.
2.2 APIs. CloudEndure also provides APIs that can be used to access the Service (“APIs”). The Customer may use the APIs for its own internal use in accordance with the license granted under these Terms. The Customer will not use the APIs in any application accessible by third parties (“Public Application”) without CloudEndure’s prior written consent. The APIs, related documentation, code libraries and code samples are included in the definition of “Service” for the purpose of these Terms.
2.3 Changes in the Service. CloudEndure makes continuous efforts to constantly improve the Service for the benefit of its customers. Therefore, CloudEndure may make changes to the Service from time to time, including removing any feature or functionality of the Service. CloudEndure will use its reasonable efforts to provide the Customer with a reasonable notice prior to any material change in the Service. If CloudEndure makes any material adverse change in the Service related to a functionality that is actually being used by the Customer, and CloudEndure does not cancel such material adverse change within 30 days from Customer’s written request, Customer may, within 30 days from the day of notice, terminate the license granted to use the Service, and CloudEndure will (as its sole liability) provide Customer with a pro rata refund of pre-paid Fees (as such term is defined below) for the unused portion of the licenses purchased by the Customer.
2.4 Restrictions. The Customer will not, nor will Customer allow any third party to: (a) copy, modify, adapt, translate or otherwise create derivative works of the Service; (b) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Service; (c) rent, lease, sell, sublicense, assign or otherwise transfer rights in or to the Service; (d) remove any proprietary notices or labels from the Service; (e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service; (f) develop any other product or service containing any of the concepts and ideas contained in the Service or use the Service for the purpose of building a similar or competitive product; (g) directly or indirectly take any action to contest CloudEndure’s intellectual property rights or infringe them in any way; (h) make the Service available for timesharing, application service provider or service bureau use; and (i) remove, obscure, or alter any notice of copyright, CloudEndure’s Marks (as such term is defined below), or other proprietary right appearing in or on any item included with the Service.
2.5 Benchmarking. Customer may perform benchmarks or comparative tests or evaluations (each, a “Benchmark”) of the Service Offerings. If Customer performs or discloses, or directs or permits any third party to perform or disclose, any Benchmarks of the Service, Customer (i) will include in any disclosure, and will disclose to CloudEndure, all information necessary to replicate such Benchmark, and (ii) agrees that CloudEndure may perform and disclose the results of Benchmarks of Customer’s products or services, irrespective of any restrictions on Benchmarks in the terms governing your products or services.
3.1 Mutual Representations
3.1.1 Each party has the full power, legal capacity, and authority to enter into, deliver and fully perform its respective obligations set forth in these Terms; and
3.1.2 The execution or performance of these Terms will not result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound.
3.2 Customer’s Representations
The Customer represents and warrants that:
3.2.1 He/she will not use the Service for any illegal or unauthorized purpose or infringe or promote the infringement of any intellectual, proprietary or other right of any party, and the Customer will comply with all applicable laws and regulations (including, but not limited to, all applicable import and export laws, copyright and privacy laws) in the Customer’s use of and access to the Service.
3.2.2 The Customer is the owner of, or has the required rights in all of the servers and cloud accounts which the Customer lists under the Account(s), and the Customer is solely responsible for any and all activities that relate to such servers and cloud accounts.
3.2.3 In the event that the Customer’s cloud account(s) contain any personal information (as may be considered as such by any applicable law), the Customer represents and warrants that the Customer holds and maintains such personal information in compliance with any and all applicable laws, and that the Customer is allowed to use the Service in connection with such personal information (e.g. to replicate the personal information from its source location to its target location).
4.1 CloudEndure’s Intellectual Property Rights
4.1.1 The Service and all of the intellectual property rights in the Service (including CloudEndure’s Marks) are, and shall remain, the exclusive properly of CloudEndure and its affiliates, including but not limited to, any modifications or custom features to the Service to be developed by CloudEndure for the Customer’s benefit, whether requested or instructed by the Customer or not, even if the Customer has paid for such modifications, except if CloudEndure and the Customer have a separate written agreement that specifically states otherwise and references this Section.
Any error and bug reports, additional features, ideas, requests, feedbacks, recommendations, comments, concepts and other requests or suggestions related to the Service (collectively “Ideas”) that the Customer may provide to CloudEndure, will be solely owned by CloudEndure. The Customer hereby irrevocably assigns and transfers any intellectual property rights in such Ideas to CloudEndure, free of charge.
All of CloudEndure’s trademarks, including but not limited to, “CloudEndure”, “Business as usual. Always”, “All Systems Go”, any service marks, logos, domain names, copyrights and other proprietary rights associated with CloudEndure and the Service, whether registered or non-registered, shall be collectively be referred to as “CloudEndure’s Marks“. The Customer agrees not to directly or indirectly (and not to allow any third party to): (a) use CloudEndure’s Marks for any purpose (other than as detailed hereunder) without CloudEndure’s express written consent; and (b) register, attempt to register, or assist anyone else to register any CloudEndure’s Marks or marks confusingly similar thereto.
4.2 Customer’s Content
4.2.2 The Customer authorizes CloudEndure to use the Customer’s name, logo and other applicable trademarks, at any time, for the purpose of referencing the Customer as a customer of the Service or in other promotional marketing materials. If the Customer does not wish to be referenced, the Customer may contact CloudEndure at [email protected].
4.2.3 Whereas only the Customer (and not CloudEndure) has control over the source and target infrastructures (such as its data centers, cloud accounts, servers, etc.) as well as of the set-up and configuration of the Service, the Customer shall bear the sole responsibility of complying with all applicable privacy and export control laws and regulations in respect to the transfer of the Customer Content, and shall bear the sole responsibility of securing both the source infrastructure and the target infrastructure.
4.2.4 The Customer hereby agrees that CloudEndure shall not be responsible for any costs and/or expenses with respect to the source and target infrastructures, and all such costs and/or expenses shall be borne solely by the Customer.
5.1 Each party agrees that it will not disclose to any third party or use any Confidential Information disclosed to it by the other party, except to carry out its rights and obligations under these Terms, and that it will take all reasonable measures to maintain the confidentiality of all other party’s Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
“Confidential Information” shall mean any proprietary information of either party, including but not limited to, all computer software (in binary or source code form), programs, designs, concepts, scientific, algorithmic and structural information included in, or related to, the Service, information of a business and commercial nature (such as financial and marketing information disclosed in any form or medium whatsoever). Confidential Information includes all information designated by either party as confidential or proprietary within a reasonable time of its disclosure or which a reasonable person would expect to be treated as confidential. “Confidential Information” will not include information that (a) is in or enters the public domain without breach of this Section; (b) is lawfully obtained by the receiving party from a third party without breach of a nondisclosure obligation; (c) is already in the possession of the receiving party as shown by its dated written records; or (d) is required by law to be disclosed, provided that the receiving party gives prompt written notice of such requirement prior to disclosure, and reasonably assists the disclosing party in avoiding or limiting such disclosure, all subject to applicable law.
5.2 The receiving party acknowledges that the disclosure of Confidential Information could cause substantial harm to disclosing party that may be difficult to remedy by the payment of damages alone. Accordingly, disclosing party may seek injunctive relief for any breach of this Section 5.
5.3 Upon termination of these Terms, each party will immediately return to the other party or destroy all copies of the other party’s Confidential Information in its possession or control, except for copies stored in backups, which shall continue to stay confidential.
6.1 Ordering Document
6.1.1 For the purposes of these Terms, the term “Ordering Document” shall mean CloudEndure’s purchase order form (“Purchase Order”) agreed between CloudEndure and the Customer or between CloudEndure and its authorized resellers (“Reseller(s)“). The parties may agree to use another form of document or instrument to record their agreement on the type and number of licenses purchased by Customer, but such other forms and instruments shall bind CloudEndure only if executed by an authorized officer of CloudEndure; provided however, that in any event whatsoever, any pre-printed/boilerplate terms in such forms issued by the Customer (or by the Reseller) to CloudEndure (for administrative, accounting or other purposes) will be null and void and shall not have any effect on the parties’ rights, and these Terms shall prevail.
6.1.2 Any mutually agreed upon Ordering Document shall be deemed an integral part of these Terms, and these Terms shall apply thereto. In the event of a conflict between these Terms and the applicable Ordering Document, the terms of the applicable Ordering Document shall prevail solely if (a) the applicable Ordering Document expressly identifies and supersedes or modifies a specific provision in these Terms; and (b) the applicable Ordering Document is signed by an authorized signatory of both parties.
6.1.3 The type and scope of the Service will be as set forth in the Ordering Document. Such Ordering Document shall include at least the following information: (a) the type of license (i.e. whether the Service is for Migration, or for DR, as such terms are defined below); (b) the number of licenses to be purchased by the Customer; (c) Customer name; (d) the Fees and the payment terms; (e) subscription term; and (f) any other details to be agreed upon by the parties.
6.1.4 CloudEndure is not obligated to accept any Ordering Document for any reason or for no reason.
6.2.1 In consideration for the Service, the Customer or the Reseller shall pay CloudEndure the fees agreed upon between the Customer and CloudEndure or between CloudEndure and the Reseller, as the case may be (the “Fees”). Unless otherwise explicitly detailed in these Terms, all amounts owed to CloudEndure are non-cancellable and the Fees paid are non-refundable.
6.2.2 CloudEndure will invoice for the Service as set forth in the applicable Ordering Document, and each invoice will be paid via bank wires, checks, or other methods made available by CloudEndure, within thirty (30) days from the date of the invoice. Any Fees unpaid by the due date shall thereafter bear interest at the rate of one percent (1%) per month (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid.
6.2.3 CloudEndure may use various billing service providers. When using such provider’s services, the Customer agrees to follow and comply with the policies of such provider.
6.3 On-Demand Channels. If the Customer obtained the licenses to use the Service via an on-demand channel (such as on-demand marketplaces, or cloud service providers) (“On-Demand Channel(s)“), then Sections 6.1 and 6.2 above shall not apply to the Customer and the relevant fees and terms of payment will be in accordance with the terms agreed upon by CloudEndure and the respective On-Demand Channel. The terms and conditions of these Terms applicable to Resellers (other than Sections 6.1 and 6.2 above) shall also apply to On-Demand Channels, mutatis mutandis.
6.4 Taxes. All Fees payable hereunder, do not include local, state, or federal sales, use, excise, personal property, VAT or other taxes, customs and duties, including, without limitation, any withholding tax. Any such taxes, to the extent legally applicable, shall be borne and paid by the Customer. The Customer will pay all applicable taxes when invoiced by CloudEndure or will supply appropriate tax exemption certificates in a form satisfactory to CloudEndure. In cases wherein the Customer is legally required to withhold any income or remittance tax from amounts payable to CloudEndure, then (a) the Customer will promptly notify CloudEndure; (b) the amounts payable to CloudEndure will be automatically increased to the full extent required to offset such tax, so that the amount remitted to CloudEndure, net of all taxes, equals the amount stated in the invoice; and (c) the Customer will provide CloudEndure with the official receipt of payment of such taxes to the appropriate taxing authority.
7.1 Term and Termination
7.1.1 Term of these Terms. These Terms will enter into effect once accepted by the Customer in the registration process and/or by its actual use of the Service, and shall remain in effect for an indefinite period of time so long as the Customer uses the Service, unless terminated by a mutual agreement of both parties.
7.1.2 Service Term of Disaster Recovery (“DR”) Licenses. Each DR license is valid for a period of 12 months from the effective date set forth in the Ordering Document, or 12 months from the installation date of the software component on the Customer’s source servers (the “Agent“) if the license was obtained through an On-Demand Channel (the “DR Initial Term“). Each DR license is only valid for simultaneous replication of one server (whether physical or virtual).
At the end of the DR Initial Term, and at the end of each DR Renewal Term thereafter, the term of each DR license and any related services shall automatically renew for additional twelve (12) months periods (each, a “DR Renewal Term”), unless either party provides written notice to the other party, not less than sixty (60) days prior to such date of renewal, of its election not to renew the relevant DR license.
7.1.3 Service Term of Migration (“Migration”) Licenses. Each Migration license is valid for a period of 3 months from the Agent installation date, or 12 months from the effective date set forth in the Ordering Document, if any, whichever is earlier. Each Migration license is only valid for installation on one server (whether physical or virtual). For the avoidance of doubt, a Migration license used to install an Agent on one server must not be removed and re-used on another server.
7.1.4 The Customer may cease using the Service at any time, provided however, that upon any such termination of the Service, the Customer will not be entitled to any refund of Fees previously paid, and such termination of the Service will not release the Customer from its obligation to pay all Fees, and such Fees will be immediately due and payable in full.
7.1.5 CloudEndure may terminate these Terms and the licenses granted hereunder, in any case of a material breach by the Customer (including non-payment of Fees) of these Terms and/or any applicable law, which has not been cured by the Customer within fourteen (14) days following a written notice thereof from CloudEndure.
7.1.6 CloudEndure may terminate these Terms and the licenses granted hereunder, in any case of non-payment of the relevant Fees by the Reseller, which has not been cured by the respective Reseller in accordance with the terms agreed upon by CloudEndure and the respective Reseller, provided that, in such cases CloudEndure shall provide the Customer with a fourteen (14) day prior written notice of its intention to do so.
7.1.7 In respect to any free of charge licenses, such as trial licenses, CloudEndure may terminate the license and these Terms at any time by providing the Customer with seven (7) days prior notice.
7.2 Consequences of Termination
Upon any termination of a license to use the Service, the following shall apply:
7.2.1 All rights granted to the Customer under the applicable license shall immediately be terminated.
7.2.2 If the license terminated was the last license used by the Customer, then CloudEndure may suspend or delete the respective Account(s).
7.2.3 The expiration or termination of the license or these Terms shall not relieve the Customer of any obligation intended to survive under these Terms, including but not limited to, Sections 1.1, 1.3, 4.1, 5, 6.2, 7.2, 8, 10, 11.2 and 12.
7.3 Termination Due to Service Availability through Amazon Web Services (“AWS”)
CloudEndure may terminate these Terms and the licenses granted hereunder if the Services are provided by (1) AWS, through either AWS, Inc., or another AWS entity such as AWS EMEA SARL; and (2) the Customer has an existing agreement with an AWS entity governing Customer’s access to and use of AWS services (“AWS Agreement”). If CloudEndure terminates these Terms under this section, then the following shall apply:
7.3.1 Customer’s AWS Agreement will govern Customer’s access to and use of the Services, and the Services will be a Service Offering as defined by Customer’s AWS Agreement.
7.3.2 To the extent that Customer has paid in advance for any Services and has not used the total value paid for the Services, the unused amount will be credited to Customer’s AWS account on a pro-rated basis.
7.3.3 Section 7.2 of these Terms will apply.
The Customer hereby agrees to indemnify, defend and hold CloudEndure and its directors, employees, service providers, agents, sub-contractors, representatives, and anyone on CloudEndure’s behalf (the “Related Parties”) harmless from and against any and all claims, including related judgments, awards, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) and other expenses (collectively “Damages”) that are based on or arise directly or indirectly out of or from (a) Customer breach of these Terms; (b) any misuse of the Account(s) by the Customer and any third party on the Customer’s behalf; (c) any breach of the Customer’s representations and warranties set forth herein; and (d) Customer or Customer employees’ or personnel’s negligence or willful misconduct.
9.1 THE CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE AND ANY RELATED SERVICES PROVIDED TO THE CUSTOMER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CLOUDENDURE AND ITS RELATED PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
9.2 CLOUDENDURE AND ITS RELATED PARTIES DO NOT WARRANT: (A) THAT THE SERVICE AND ANY RELATED SERVICES PROVIDED TO THE CUSTOMER WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS; (B) THAT THE CUSTOMER’S USE OF THE SERVICE AND ANY RELATED SERVICES PROVIDED TO THE CUSTOMER WILL BE UNINTERRUPTED; OR (C) THAT DEFECTS, IF ANY, WILL BE CORRECTED.
9.3 The foregoing exclusions and disclaimers are an essential part of these Terms and formed the basis for determining the price charged for the Service and any related services. Some states do not allow exclusion of an implied warranty, so this disclaimer may not apply to the Customer.
9.4 CloudEndure’s Service and Software contain third-party proprietary software programs, including, but not limited to, open source components (the current list of such open source components is located at https://www.cloudendure.com/3rd-party-open-source/), which are distributed by CloudEndure along with their associated license terms. Open source components are distributed AS IS, without any warranty, express or implied, and in accordance with their respective license terms.
9.5 CloudEndure may provide hyperlinks to other websites or resources. Because CloudEndure has no control over such sites and resources, the Customer acknowledges and agrees that CloudEndure shall not be responsible for the availability of such sites or resources, nor shall CloudEndure be responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. When the Customer accesses these third-party sites, Customer does so at the Customer’s own risk, and Customer should refer to each such website’s individual “Terms of Service” and not rely on these Terms in any way.
10.1 CLOUDENDURE, AND ITS RELATED PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, LOST PROFITS OR OTHER INTANGIBLE LOSSES), UNDER ANY THEORY OF LAW INCLUDING UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER (EVEN IF CLOUDENDURE OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE).
Some jurisdictions may not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above may not apply to the Customer. In such jurisdictions, liability is limited to the fullest extent permitted by law.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CLOUDENDURE’S AND ITS RELATED PARTIES’ TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS ACTUALLY RECEIVED BY CLOUDENDURE OR RESELLER FROM THE CUSTOMER FOR THE SERVICE PROVIDED TO THE CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES FIRST GIVING RISE TO THE CLAIM OF LIABILITY (THE “CAP AMOUNT“); EXCEPT THAT IF SUCH SERVICES WERE PROVIDED TO THE CUSTOMER FREE OF CHARGE, THEN THE CAP AMOUNT SHALL BE LIMITED TO US$1,000.
10.3 CloudEndure provides Customers with an easy tool to test the Service. In the case of using the Service for Disaster Recovery, the Customer shall immediately conduct a DR drill using the Service, after the Customer completes the implementation of its DR plan, and also every six (6) months thereafter. In the case of using the Service for Migration, the Customer shall conduct a Migration test using the Service two (2) weeks before the scheduled Migration cutover time.
10.4 The Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action it may have arising out of or related to use of the Service or otherwise under these Terms must be filed within two (2) years after such claim or cause of action arose or the Customer hereby agrees to be forever barred from bringing such claims.
10.5 These Terms shall not confer any rights or remedies upon any person or entity on behalf of the Customer other than the Customer.
The following provisions shall apply to Customers who use the Service for the benefit of third parties (“Customer Clients”):
11.1 The license granted hereunder shall extend to allow the Customer to use such license, subject to this Section 11, for the benefit of Customer Clients. Such Customer Clients are not, and shall not be, granted any right or license to use the Service, unless they opened their own accounts and accepted these Terms. The Customer shall not allow Customer Clients to use or access its Account(s).
11.2 In addition to Customer’s obligations under Section 8 (titled “Indemnification”) above, the Customer hereby agrees to indemnify, defend and hold CloudEndure and its Related Parties harmless from and against any and all Damages that are based on or arise directly or indirectly out of or from any claims raised by any of Customer Clients towards CloudEndure and its Related Parties.
12.1 No waiver by either party of any default shall be deemed a waiver of any prior or subsequent default of the same or other provisions of these Terms, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
12.2 If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from these Terms.
12.3 CloudEndure may freely assign its rights and responsibilities hereunder without notice to the Customer. These Terms are not assignable, transferable or sublicenseable by the Customer except with CloudEndure’s prior written consent.
12.4 These Terms constitute the entire understanding between the Customer and CloudEndure, and revoke and supersede all prior agreements between the parties, and are intended as a final expression of the parties’ agreement.
12.5 Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
12.6 CloudEndure reserves the right at any time to modify these Terms. Any such modification will be effective immediately upon posting the amended Terms on CloudEndure’s website or by sending an electronic mail to the Customer. The Customer’s continued use of the Service after the effective date of any such modification will be deemed acceptance of such modified Terms.
12.7 If the Service was obtained from CloudEndure Inc. or its Reseller, all disputes arising out of these Terms will be subject to the governing law of New York, NY, United States of America and the exclusive jurisdiction of the competent courts located in the city of New York, NY, United States of America.
If the Service was obtained from CloudEndure Ltd. or its Reseller, all disputes arising out of these Terms will be subject to the governing law of the state of Israel and the exclusive jurisdiction of the competent courts located in the city of Tel Aviv – Jaffa, Israel.
The parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit either party from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
12.8 Arbitration. If Customer obtained the Service from CloudEndure, Inc. any disputes will be resolved by binding arbitration as provided in this section, rather than in court, except that Customer may assert claims in small claims court if Customer’s claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, Customer must send a letter requesting arbitration and describing Customer’s claim to our registered agent Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98501. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. We will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. Customer may choose to have the arbitration conducted by telephone, based on written submissions, or at a mutually agreed location. We and Customer agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we and Customer waive any right to a jury trial. Notwithstanding the foregoing we and Customer both agree that Customer or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
(a) To Customer. CloudEndure may provide any notice to Customer under this Agreement by: (i) posting a notice on www.cloudendure.com and any successor or related site designated by us (the “CloudEndure Site”), as may be updated by us from time to time; or (ii) sending a message to the email address then associated with Customer’s account. Notices we provide by posting on the CloudEndure Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is Customer’s responsibility to keep Customer’s email address current. Customer will be deemed to have received any email sent to the email address then associated with Customer’s account when we send the email, whether or not Customer actually receive the email.
(b) To CloudEndure. To give CloudEndure notice under this Agreement, Customer must contact CloudEndure by personal delivery, overnight courier or registered or certified mail to the mailing address, as applicable, listed for the applicable CloudEndure Contracting Party below. CloudEndure may update the address for notices to CloudEndure by posting a notice on the CloudEndure Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
|CloudEndure Contracting Party||Mailing Address|
|CloudEndure Inc.||General Counsel
244 Fifth Avenue, Suite C134
New York, NY 10001
|CloudEndure Ltd.||General Counsel
12 Abba Hillel Silver Road
Ramat Gan, 5250606
12.10 Trade Compliance. In connection with these Terms, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, Customer is solely responsible for compliance related to the manner in which Customer choose to use the Service. Customer represent and warrant that Customer and Customer’s financial institutions, or any party that owns or controls Customer or Customer’s financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.