THIS AGREEMENT APPLIES TO:
(1) ALL SUBSCRIPTIONS FOR 2FOUNDATIONS’ HOSTED SOFTWARE AS A SERVICE (SAAS) SOLUTIONS
(2) ANY OTHER RELATED SERVICES THAT 2FOUNDATIONS MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SAAS SOLUTION.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING YOUR SUBSCRIPTION REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM REFERENCING THIS AGREEMENT, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE “CANCEL” BUTTON AND YOU SHALL NOT BE PERMITTED TO USE THE SOFTWARE SERVICE.
“Authorized Users” means you, your employees or third party individuals that are accessing the Software on your behalf. Third-Party users may Use the Software/(s) subject to Confidentiality obligations in this Agreement.
“Documentation” means the user guides or any other technical documentation published on the website https://help.clouderizer.com about the applicable Product that is provided by 2Foundations to Customer together with access to the Product.
Quote: means a written quotation of 2Foundations’ offerings provided to the Customer by 2Foundations, which is accepted by Customer and considered an “order” by signing and returning quotation to 2Foundations.
Relationship Data: any personal information collected by the 2Foundations during the activation and maintenance of Customer’s account. It may include names and other details of Customer involved in maintaining or using the software and/or Hosted service.
“Software” 2Foundations’ product Clouderizer, consisting of Server application hosted on cloud, agent application installed on Customer’s machine and the associated documentation, provided to Customer by 2Foundations pursuant to this Agreement, in object code format and as such Software is updated from time-to-time.
Software related services: means service performed by the 2Foundations as reflected in Order such as installation, activation, training, software configuration, modification, integration, reconfiguration, assessment, optimization or other software related services and excludes professional services for the development of custom software or other intellectual property (which would be governed by a separate agreement).
Software Update: means any patches and modifications, enhancements, improvements and revisions of the Software, including new releases of Software, made available by 2Foundations at its discretion from time to time.
Term: means the term during which the Customer is granted the access rights to use the product, the term shall commence when 2Foundations delivers to Customer the relevant user credentials to access and use the Product.
Third Party Software: means software which is created or developed by a party other than the 2Foundations and includes open source software.
Website: means the website nominated from 2Foundations Inc from time to time, currently at clouderizer.com
(i) 2Foundations offers free usage of the product with certain restrictions. Details of these restrictions can be found on 2Foundations website. 2Foundations can modify details of these restrictions from time to time on its own discretion. (i) the free usage period shall commence on the date when 2Foundations delivers to Customer the relevant user credentials to access and use the Product. (iii) Free Usage version of the Product is provided “AS IS” without warranty of any kind, and 2Foundations disclaims all warranties, indemnities, and all other liabilities for the product under such term; (iv) Customer will not be not entitled to any support and maintenance services or any Updates for the Free Usage of the Product; and (v) either party may terminate the Agreement for the Product under Free Usage upon five (5) days’ written notice to the other party.
Access Grant : Subject to the terms and conditions of this Agreement, 2Foundations grants to Customer, upon full payment of applicable fees, a worldwide, revocable, nonexclusive and nontransferable license to use only the object code version of the Software for the period of payment of subscription Fees during the Term of this Agreement, solely to perform those functions defined in the corresponding Documentation (“Use”). The Software provided by 2Foundations is for single Authorized User. Customer must ensure that the Software is not used by any person who is no longer authorized by the Customer.2Foundations reserves all rights in the Software not expressly granted to Customer in this Agreement.
Customer’s obligations: To be responsible for providing and maintaining the required terminal equipment, the data line and shall ensure that Customer’s configuration and technical condition comply with the current requirements of 2Foundations as stated in 2Foundations’ website clouderizer.com (check technical facts for each product).
To name the users and contact partners at the signing of the agreement and to protect his or her account and customer password from unauthorized access and to not disclose it to third parties.
Customer may not: (i) modify, disassemble, de-compile, reverse engineer, or otherwise attempt to determine the source code from the object code of the Software or knowingly permit or encourage any third party to do so; (ii) use the Software in any manner to provide service bureau, time-sharing or other computer services to third parties; (iii) use the Software, or allow the transfer, transmission, export, or re-export of the Software or portion thereof in violation of any export control laws or regulations administered by any government agency; or (iv) copy or replicate the Documentation provided in relation to the Software in any form; (v) use the Software for competitive analysis, evaluating or viewing the Software or Documentation for the purpose of designing, modifying, or developing software or services similar in purpose, scope, or function to the Software unless the same is notified to the 2Foundations in advance pursuant to the Agreement.
Customer may make a copy of the Software solely for backup purposes or system maintenance, ensuring the continued availability of the Software to authorized users or is otherwise expressly permitted by law. Any copy of the Software must clearly show all titles, trademark, copyright notices, legends, and other proprietary markings of the 2Foundations without modifications.
Customer agrees that 2Foundations may, once in a calendar year and upon thirty (30) days prior written notice, enter Customer’s premises to audit Customer’s compliance with the provisions of this Agreement. 2Foundations’ inspections shall be conducted during Customer’s normal business hours and will be restricted to the records pertaining to the Software provided hereunder or other 2Foundations Confidential Information. 2Foundations’ rights of inspection shall remain in effect through the period ending six (6) months from the termination or expiration of this Agreement.
Customer acknowledges and agrees that the Software may only be installed and used only on machines, which meets or exceeds the minimum system requirements identified and notified by the 2Foundations to Customer from time to time. Customer acknowledges and agrees that it is solely responsible for obtaining, installing, operating and maintaining all hardware, other equipment and third party software required for use of the Software. All functionality, operating system, network services, hardware maintenance and data backup are the responsibility of the Customer.
The Customer agrees to use reasonable endeavour to safeguard the Software to ensure that no unauthorized person has access to them and that there is no unauthorized copying or distribution of the Software.
2Foundations grants no ownership rights to Customer and is not a sale of any rights in the Software or the Documentation. 2Foundations shall own and retain ownership of all right, title, and interest in and to (i) the Software and any copies thereof; the Documentation and any copies thereof; (iii) any ideas, suggestions, or feedback relating to the Software and Documentation (“Feedback”); and (iv) all intellectual property rights embodied within the foregoing (i)-(iii). Customer hereby irrevocably assigns and agrees to assign all of Customer’s right, title, and interest in and to any Feedback to 2Foundations. To the extent such Feedback cannot be assigned, Customer hereby grants and agrees to grant to 2Foundations at no charge a perpetual, irrevocable, royalty-free, worldwide right to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit the Feedback without restriction. By signing this Agreement Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Software provided to Customer. 2Foundations shall own all right, title, and interest in such Software/(s), subject to any limitations associated with intellectual property rights of third parties. 2Foundations reserves all rights not specifically granted herein.
Fees : The monthly subscription fees due for use of the Software is specified in the 2Foundations’ website (in case of direct purchase from 2Foundations), fees quoted by 2Foundations’ authorized reseller (if Software is purchased from 2Foundations’ authorized reseller). 2Foundations may offer discounts, at its discretion in case Customer makes a bulk purchase of the Software. Fees will be calculated based on usage of the Software (Pay-As-You-Go) and the pricing plan opted by the customer. Software usage rates and pricing plan details can be found on 2Foundations website. The fees are exclusive of applicable taxes and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of 2Foundations. This provision does not apply to any taxes for which Customer is exempt, provided Customer has furnished 2Foundations with a valid tax exemption certificate.
Payment Due Date : The applicable fees is due for payment before accessing the commercial version of the Software. In case Customer is approved a payment credit period by 2Foundations in writing, Customer has to pay the fees due within the credit period.
2Foundations does not provide training for the use of the Software unless requested by the Customer or otherwise provided by this Agreement. To the extent 2Foundations is requested to provide any Software related services, the same will be provided pursuant to the then current prices for the software related services and will be invoiced to the Customer.
In the course of performance of this Agreement, either party (“Discloser”) may find it necessary to disclose to the other party (“Recipient”), or Recipient may otherwise obtain from Discloser, certain proprietary information or materials, which are in tangible form and labelled “confidential” or the like, or, information which a reasonable person knew or should have known to be (“Confidential Information”) The following information shall be considered Confidential Information whether or not marked or identified as such: information regarding 2Foundations’ pricing, product roadmaps or strategic marketing plans; and non- public materials relating to the Software.
Exclusions to Confidential Information :
Confidential Information does not include information that: (a) was in the public domain at the time of Discloser’s communication thereof to Recipient, (b) becomes part of the public domain after the time of disclosure, through no improper action of Recipient; (c) was in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication thereof to Recipient; (d) can be shown by documentation to have been independently developed by the Recipient without the use of or reference to any Confidential Information; (e) is not treated as confidential by Discloser; or (f) is approved for release by Discloser in writing. Recipient shall use any Confidential Information received (or derivatives thereof) solely for the purpose of performing its obligations under this Agreement.
Obligations to Confidential Information :
Recipient shall not disclose or permit any non-Affiliate party access to any Confidential Information, except Recipient’s officers, directors, employees, contractors, representatives, or agents on a need to know basis and where all such officers, directors, employees, contractors, representatives, or agents have confidentiality obligations at least as restrictive as those set forth in this Section. Recipient agrees to use reasonable efforts to protect the confidential or proprietary nature of such Confidential Information (and any derivatives thereof), using at least the same degree of care it utilizes for the protection of its own strictly confidential and proprietary information. The obligations under this Agreement will continue: (i) with respect to Confidential Information (and/or derivatives thereof) that does not constitute a trade secret, in perpetuity after the termination of this Agreement; and (ii) for any Confidential Information (and/or derivatives thereof) that constitutes a trade secret, for so long as such information remains a trade secret under applicable law. Notwithstanding the foregoing, in the event disclosure is required by court, government order, or law (such as state open records or freedom of information acts), Recipient shall promptly notify Discloser of such order or requested disclosure so that it may seek a protective order or other appropriate remedy and only disclose such Confidential Information to the extent required.
Return/ Deletion of Confidential Information :
All Discloser Confidential Information and derivatives thereof shall remain the property of Discloser and will be deleted or returned to Discloser within ten (10) days following the termination of this Agreement. Without limiting the foregoing or the Software Restrictions, Customer shall not disclose or display any Confidential Information of 2Foundations, including the Software, to any Competitor of 2Foundations.
Authorized Representative. Customer and 2Foundations warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
2Foundations’ warranty. 2Foundations hereby warrants that to its knowledge it has the necessary rights and title to provide the Software to the Customer.
Customer’s warranty. Customer hereby warrants that it has the necessary rights to share and upload all Customer data shared with the 2Foundations or uploaded into the Software. Customer data shall mean any materials or data provided by Customer to 2Foundations pursuant to this Agreement, including information or data that is uploaded into the Software. 2Foundations may store Customer data solely for storage, retrieval, backup purposes.
EXCEPT AS EXPRESSLY SET FORTH HEREIN THE SOFTWARE IS PROVIDED BY 2FOUNDATIONS ON AN “AS IS” BASIS AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THE SOFTWARE OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH BY 2FOUNDATIONS. 2FOUNDATIONS DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE SOFTWARE, WHICH ARE NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY, CONDITION OR REPRESENTATION BY 2FOUNDATIONS.
2Foundations shall at its expense defend any third party cause of action brought against Customer based on a claim that the Software, as delivered by 2Foundations to Customer, infringes any patent, copyright, or trade secret of such third party. 2Foundations will pay those costs and damages finally awarded by a court of final jurisdiction against Customer pursuant to any such claim or paid in settlement of any such claim. 2Foundations shall have no liability for any claim of infringement if (i) the Software is modified by parties other than 2Foundations; (ii) Customer uses the Software in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer uses the Software with non-2Foundations software or hardware, where use with such other software or hardware gave rise to the infringement claim.
Customer Obligations: 2Foundations shall have no liability under this Section unless :
Remedies: Should the Software become, or in 2Foundations’ opinion is likely to become, the subject of a claim of infringement, 2Foundations may, at its option, (i) obtain the right for Customer to continue using the Software; (ii) replace or modify the Software so it is no longer infringing; or (ii) if neither of the foregoing options is commercially reasonable, terminate the license for the Software. Upon such termination and Customer’s return of the Software, 2Foundations will refund to Customer, as Customer’s sole remedy for such termination, all fees paid by Customer for the such Software, less an amount equal to the fees for each month or any portion thereof which has elapsed from the Term of such Software.
THIS SECTION STATES THE ENTIRE LIABILITY OF 2FOUNDATIONS WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SOFTWARE.
The 2Foundations shall provide maintenance and support for the Software during the Term of the Agreement and for the applicable fees as specified on 2Foundations website. Exclusions to Maintenance and Support: 2Foundations’ Maintenance and Support do not include the rectification of errors, defects or problems caused or contributed to by :
2Foundations reserves the right to charge Customer additional fees (at its then current rates) for the rectification of any errors, defects or problems caused or contributed to by any of the reasons listed above.
Limitation : IN NO EVENT WILL 2FOUNDATIONS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, STATUTORY OR COMMON LAW ATTORNEY FEES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE WHETHER SUCH ACTION IS BASED IN CONTRACT OR IN TORT INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND WHETHER OR NOT 2FOUNDATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Aggregate Liability : NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, 2FOUNDATIONS’ AGGREGATE LIABILITY PURSUANT TO THIS AGREEMENT, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE SHALL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES (ALL CLAIMS), IN NO CIRCUMSTANCES EXCEED THE FEES PAID BY CUSTOMER TO 2FOUNDATIONS, FOR THE SOFTWARE, OVER THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE RECEIPT BY 2FOUNDATIONS OF THE RELEVANT NOTIFICATION OF CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
The agreement shall commence on the date the Customer agrees to the terms of this Agreement by clicking the “I Accept” button and download/install the Software and continues until the hosted Software as a Service is granted in accordance with the Agreement have expired or been terminated.
Termination by Customer: Customer may terminate this Agreement at any time by giving 30 days written notice to 2Foundations and complying with the conditions of clause.
Termination by 2Foundations: 2Foundations may terminate this Agreement immediately by giving written notice to Customer if :
(a) Customer fails to pay any fees which are due and payable under this within 30 days;
(b) Customer fails to comply with any term or condition of this AGREEMENT;
(c) Customer becomes bankrupt or insolvent; or
(d) 2Foundations is required to do so by law (e.g. where the provision of the Software or Support and Maintenance to Customer is or becomes unlawful).
Consequences of Termination: Upon termination or expiry of this Agreement for any reason the Customer must :
(a) immediately pay any outstanding amounts owed to 2Foundations under this Agreement
(b) remove the Software from each server and each computer or terminal on which it is installed;
(c) cease all use or exploitation of any intellectual property or confidential information of 2Foundations relating to the Software; and
(d) deliver up or destroy (at 2Foundations’ option) all copies of the Software and Documentation that are in the possession of Customer.
Customer must ensure that users comply with the obligations under this Agreement Customer will duly observe all of its’ obligations under any relevant data protection law or regulation that may apply to the relationships contemplated under this Agreement, including specifically, any obligation for Customer to configure the software and/or Hosted service in accordance with all applicable laws and regulations . Further, as required by applicable law or regulation, Customer will notify users that any customer content/Customer data provided as part of the Software and/or Hosted service will be made available to a third party i.e (2Foundations) as part of the 2Foundations providing the software and/or Hosted Service.
As the performance of the Agreement and delivery of the Services implies the delivery of the personal data, 2Foundations shall comply with the applicable data protection laws and regulations. For the avoidance of doubt :
2Foundations and any third-party service provider that 2Foundations may engage shall employ commercially reasonable physical, administrative, and technical safeguards to secure any Customer Data in its possession, custody, or control from unauthorized use or disclosure.
2Foundations has documented its processing and publishes this in its privacy notice. This can be found on the 2Foundations website, or provided to Customer on request.
You are aware that the function of the Software provided by 2Foundations hereunder is to provision, configure, access and work on local and cloud machines, running prescribed versions of Linux / MacOS / Windows operating system, provide easy way to manage Customers Cloud resources. 2Foundations is not aware of Customer’s intended use of the Software and does not make any representation that the Software will meet the requirements of the Customer. Customer alone is responsible to determine the Software’s suitability for Customer’s intended usage. Customer is expressly forbidden from using any part of the Software in life saving or life critical applications without the expressed written permission from 2Foundations. 2Foundations will not be responsible for any excessive cloud service charges due to any user action or application error in the Software. Notwithstanding anything to the contrary in this Agreement, 2Foundations will not be liable for any damages (direct, indirect or consequential) arising from machine malfunction caused by the operation of the Software.
2Foundations and Customer are independent and no partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
2Foundations refrain from engaging another sub-processor without the prior written consent of the Customer.
2Foundations shall not be liable to Customer for any delay or failure of 2Foundations to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of 2Foundations. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delay by the Customer in providing required resources or support or performing any other requirements hereunder the Agreement.
Any claim or dispute arising out of or relating to, including without limitation, the Agreement shall be settled by binding arbitration, by a sole arbitrator, in accordance with the applicable/governing laws of the State of Delaware. Any such claim or dispute shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any other claim or dispute of any other party. The arbitration shall be conducted in Delaware, and judgment on the arbitration award may be entered into any State Court in the State of Delaware having jurisdiction thereof. Neither 2Foundations nor the Customer may seek any interim or preliminary relief, from any court without serving the other party with a notice of intention to seek such relief (including details of relief sought and of the case to be made out in court) of not less than three (3) working days at its registered or known address. 2Foundations and the Customer agree that any dispute regarding the validity or scope of this clause shall be commenced in any State Court in the State of Delaware and shall be governed by the laws of the State of Delaware. The fees of the arbitrator shall be borne by the parties equally.
This Agreement and any relationship between 2Foundations and the Customer, unless otherwise stated in a separate agreement between 2Foundations and Customer, shall be governed by and construed in accordance with the laws of the State of Delaware and the State Court of the State of Delaware shall have exclusive jurisdiction without regard to conflict of law provisions.
No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent excusing the breach shall be in writing and signed by an authorized officer of the waiving Party. A waiver by a Party of any provision of this Agreement shall not be construed as a waiver of the further breach of the same provision. Failure by 2Foundations to insist on strict performance or to exercise a right when entitled does not prevent 2Foundations from doing so at a later time, either in relation to that default or a later one.
Expiry or termination of this Agreement for any reason does not affect the rights and obligations of either party arising prior to termination. Clauses under heading
If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision or part thereof which is necessary to render the provision valid, legal and enforceable, shall be severed from the Agreement and the other provisions and the remaining part of that provision shall remain in full force and effect.
This Agreement and the rights granted hereunder shall not be assigned or transferred, by operation of law or otherwise, by Customer without the prior written consent of 2Foundations. 2Foundations may assign this Agreement at any time.
This Agreement contains the entire agreement and understanding between 2Foundations and Customer with respect to the subject matter hereof and supersedes and replaces all prior agreements or understanding whether written or oral, with respect to the same subject matter that are still in force between 2Foundations and Customer.