By subscribing, accessing or using the Services you agree to the terms of this Agreement. If you are accepting these terms on behalf of another person, corporation or other legal entity, you represent and warrant that you have full authority to bind that person, corporation, or legal entity to these terms.
ÜMAknow and Customer agree to the following Agreement and any Confirmation.
1.1. Except to the extent expressly provided otherwise, in this Agreement:
“Account” means an account enabling a User to access and use the Cloudockit Services;
“Agreement” means this agreement including the and any Confirmation;
“Cloudockit Services” means the Cloudockit Services, as specified in the Cloudockit Services Specifications;
“Cloudockit Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Cloudockit Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any User using or accessing the Platform or the Cloudockit Services;
(b) any use of the Platform or the Cloudockit Services contrary to the Cloudockit Services Specifications, whether by the Customer or by any User;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; or
(d) an incompatibility between the Platform or Cloudockit Services and any other system, network, application, program, hardware or software not specified as compatible in the Cloudockit Services Specifications.
“Cloudockit Services Specifications” means the latest version of the specifications, including any user guide or reference manual developed by ÜMAknow for the Platform and the Cloudockit Services, as may be amended from time to time and made available at http://www.cloudockit.com/blog/ ;
“Business Day” means any weekday other than a statutory holiday in Montreal, Canada;
“Confirmation” means a confirmation notice issued electronically by ÜMAknow, or any other person on its behalf, to the Customer, confirming the subscription to the Services, the Term of the subscription, the number of Users allowed, the payment details and access credentials;
“Customer” means the person that subscribed to the Services as detailed in the Confirmation;
“Customer Confidential Information” means any information disclosed by or on behalf of the Customer to ÜMAknow at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been reasonably understood by ÜMAknow to be confidential and the Customer Data;
“Customer Data” means all data, works and materials uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to ÜMAknow for uploading to the Platform; transmission by or storage on the Platform or generated by the Platform as a result of the use of the Cloudockit Services by the Customer in order to issue a Report;
“Effective Date” means the date of the subscription and payment to the Cloudockit Services;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights and patents);
“Maintenance Services” means the general maintenance of the Platform and Cloudockit Services, and the application of Updates;
“Personal Data” has the meaning given to it in the Personal Information Protection and Electronic Documents Act (Canada) or any other similar law or regulation applicable to Customer;
“Platform” means the platform managed by ÜMAknow and used by ÜMAknow to provide the Cloudockit Services, including the application and database software for the Cloudockit Services and the system and server software used to provide the Cloudockit Services;
“Purchase Price” means the price, excluding applicable taxes, paid for a subscription for the Cloudockit Services for the Term and number of Users as specified in the Confirmation and any Confirmation issued form the automatic renewal of the Cloudockit Services;
“Report” means a report generated by the use of the Cloudockit Services based on Customer Data;
“Services” means the Cloudockit Services, the Support Services and the Maintenance Services;
“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Cloudockit Services, but shall not include the provision of training services;
“Term” means the length of time period specified in the Confirmation during which any User has the right to benefit from the Services;
“ÜMAknow” means ÜMAknow Solutions inc. a corporation duly organized under the laws of Canada with its principal place of business at 4349, Saint-Denis Street, Montreal, Quebec, Canada, H2J 2K9;
“Update” means a hotfix, patch or minor version update to any Platform software;
“User” means one, many, an unlimited number of users, an Azure subscription ID or AWS account as specified in the Confirmation and for which the Customer granted authorization to access the Platform and the Cloudockit Services ;
- Cloudockit SERVICES
2.1. ÜMAknow shall ensure that the Platform will, on the Effective Date, automatically generate an Account for the Customer and for the specific User.
2.2. ÜMAknow hereby grants to the Customer a worldwide, non-exclusive, non-transferable access to use the Cloudockit Services for the internal business purposes of the Customer and for Customer’s clients during the Term.
2.3. The access granted by ÜMAknow to the Customer under Clause 2.2 is subject to the following limitations:
(a) the Cloudockit Services may only be used by the officers and employees, of the Customer that have been authorized by the Customer; and
(b) the Cloudockit Services must not be used at any point in time by more than the number of concurrent Users specified in the Confirmation, if any.
2.4. Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the access granted by ÜMAknow to the Customer under Clause 2.2 is subject to the following prohibitions:
(a) the Customer must not assign its right to access and use the Cloudockit Services;
(b) the Customer must not permit any unauthorized person or User to access or use the Cloudockit Services;
(c) the Customer must not use the Cloudockit Services to provide services to third parties in a manner that can compete with ÜMAknow and Cloudockit as a software provider;
(d) the Cloudockit Services may be used by the Customer to provide accessory consulting services part of its consulting activities to its current or future clients but in no way shall be used as a specific service or as its main business service to its clients;
(e) the Customer must not make any alteration to the Platform; and
(f) the Customer shall not copy, reverse engineer, disassemble, decompile, translate, or try to modify the Cloudockit Services or Platform.
2.5. The Customer will not receive, review, or otherwise use or have access to the source code for the Cloudockit Services or Platform.
2.6. At no time shall the Customer or any User engage in any illegal, deceptive or unfair trade or other practice that may adversely affect the image or reputation of the Cloudockit Services or ÜMAknow or make any false, misleading or disparaging statement or representation regarding the Cloudockit Services or ÜMAknow. The Customer shall use only sound business methods and ethical trade practices in promoting, marketing and distributing the Report resulting from the use of the Cloudockit
2.7. The Customer shall use reasonable endeavors, including reasonable security measures relating to Account access details, to ensure that no unauthorized User may gain access to the Cloudockit Services using an Account.
2.8. ÜMAknow shall use reasonable endeavors to maintain the availability of the Cloudockit Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Cloudockit Services, but does not guarantee 100% availability.
2.9. In the event of any downtime, ÜMAknow will use reasonable commercial efforts in order to solve the issue and keep the Customer informed of the expected repair period.
2.10. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer’s computer systems or networks;
(d) any breach by the Customer or any User of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
2.11. The Customer or any User must not use the Cloudockit Services in any way that causes, or may cause, damage to the Cloudockit Services or Platform or impairment of the availability or accessibility of the Cloudockit Services.
2.12. The Customer must not use the Cloudockit Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.13. Customer may use the Cloudockit trademark, service marks, logos, or slogans on any Report. Any other use of the trademark shall be authorized in writing by ÜMAknow. Customer shall not use the trademark in any unlawful manner or in any manner that tends directly or indirectly to lessen the value or goodwill thereof, is likely to confuse, mislead, or deceive the public, or to be adverse to the best interests of ÜMAknow.
2.14. The performance of the Cloudockit Services may vary from computer to computer, and device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection. The Customer is responsible for all Internet access charges, including download extra charges exceeding its internet package following the use of the Cloudockit Services. Please check with your Internet provider for information on possible Internet data usage charges. ÜMAknow makes no representations or warranties about the quality and performance of the download speed and process time of the Cloudockit Services as it will vary based on a number of factors, including the Customer location, available bandwidth at the time and the configuration of the computer of the Customer or User.
- MAINTENANCE SERVICES
3.1. ÜMAknow shall provide the Maintenance Services to the Customer during the Term.
3.2. ÜMAknow shall, where practicable, give to the Customer a prior written notice trough the Cloudockit website of scheduled Maintenance Services that are likely to materially affect the availability of the Cloudockit Services or are likely to have a material negative impact upon the Cloudockit Services.
3.3. ÜMAknow shall provide the Maintenance Services with reasonable skill and care.
- SUPPORT SERVICES
4.1. ÜMAknow shall provide the Support Services to the Customer during the Term.
4.2. ÜMAknow shall provide the Support Services with reasonable skill and care.
4.3. The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services. The Customer must not use the helpdesk for any other purpose.
4.4. ÜMAknow shall respond within the delay of one Business Day to all requests for Support Services made by the Customer through the helpdesk.
5.1. This Agreement shall come into force upon the Effective Date.
5.2. This Agreement shall continue in force for the Term, subject to termination in accordance with this Agreement. The initial Term of this Agreement is specified in the Confirmation. This Agreement will automatically renew for successive terms of equal length as the initial Term unless Customer provides ÜMAknow a notice of non-renewal at least five (5) days prior to the end of the then current Term.
5.3 For any Term to be renewed, Customer must have paid in advance the Purchase Price, in force at such time, for the renewed Services.
- PURCHASE PRICE AND PAYMENT
6.1. The Customer shall pay the Purchase Price to ÜMAknow at the time of the subscription, or any renewal, through its online payment platform.
6.2. ÜMAknow shall issue an invoice for the Purchase Price to the Customer on or shortly following the subscription to the Cloudockit Services.
6.3. All payment obligations are non-cancelable and non-refundable.
6.4. The Purchase Price for any renewal Term will be the Purchase Price advertised on the Cloudockit web site, referred at clause 6.5 hereinbelow, at the time of the renewal Term. To that effect, the Purchase Price is payable by Paypal or by credit card. The Customer allows ÜMAknow to charge its credit card or Paypal account with the Purchase Price and applicable taxes for the subscription renewal under the terms of this Agreement, and this shall constitute a sufficient and valid authorisation by the Customer to do so.
6.5 The Purchase Price available at http://www.cloudockit.com/pricing/ is stated in United States Dollars and is exclusive of all taxes and Customer is responsible for payment of all such taxes.
6.6 Payment processing services for UMAknow SOlutions inc. on Cloudockit Services are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms , you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Cloudockit Services enabling payment processing services through Stripe, you agree to provide Cloudockit Services accurate and complete information about you and your business, and you authorize Cloudockit Services to share it and transaction information related to your use of the payment processing services provided by Stripe.
- CUSTOMER DATA
7.1. The Customer hereby grants to ÜMAknow a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of ÜMAknow’s obligations and the exercise of ÜMAknow’s rights under this Agreement in providing the Cloudockit Services, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, to the extent reasonably required for the performance of ÜMAknow’s obligations and the exercise of ÜMAknow’s rights in providing the Cloudockit Services.
7.2. The Customer warrants to ÜMAknow that the use of the Customer Data by ÜMAknow in accordance with this Agreement will not breach the provisions of any law, statute or regulation, infringe the Intellectual Property Rights or other legal rights of any person; or give rise to any cause of action against ÜMAknow, in each case in any jurisdiction and under any applicable law.
- NO ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
8.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from ÜMAknow to the Customer, or from the Customer to ÜMAknow.
- ÜMAKNOW‘S CONFIDENTIALITY OBLIGATIONS
(a) must keep the Customer Confidential Information strictly confidential;
(b) must not disclose the Customer Confidential Information to any person without the Customer’s prior written consent;
(c) must use the same degree of care to protect the confidentiality of the Customer Confidential Information as ÜMAknow uses to protect ÜMAknow’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) must act in good faith at all times in relation to the Customer Confidential Information; and
(e) must not use any of the Customer Confidential Information for any purpose other than for the purpose to provide the Services.
(f) may keep Non-Personally Identifiable Information and Non-Confidential Information and may share information to show trends about the general use of services.
9.2. Notwithstanding Clause 9.1, ÜMAknow may disclose the Customer Confidential Information to ÜMAknow’s officers and employees, for debugging purpose who have a need to access the Customer Confidential Information for the performance of their work with respect to the provision of the Services and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
9.3. This Clause 9.1 imposes no obligations upon ÜMAknow with respect to Customer Confidential Information that:
(a) is known to ÜMAknow before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of ÜMAknow; or
(c) is obtained by ÜMAknow from a third party in circumstances where ÜMAknow has no reason to believe that there has been a breach of an obligation of confidentiality.
9.4. Notwithstanding Clause 9.1, ÜMAknow may also be required to disclose by law or by order of any court of competent jurisdiction or pursuant to any rule or requirement of any regulatory authority or government body to which they may be subject, in which case notice and details of any such requirement must be given by ÜMAknow to the Customer as soon as ÜMAknow has been informed of such disclosing order or legal requirement. In the absence of a protective order or ÜMAknow’s receipt of a waiver from Customer, ÜMAknow is permitted to disclose only that portion of Information that it is legally compelled to disclose. In this case, all reasonable legal fees incurred by ÜMAknow in relation with a response to such court order or rule shall be assumed by Customer.
- DATA PROTECTION
10.1. The Customer warrants to ÜMAknow that it has the legal right to provide Personal Data to ÜMAknow in connection with provision of the Services, and that the processing of that Personal Data by ÜMAknow in connection with the provision of the Services will not breach any applicable data protection or data privacy laws.
11.1. ÜMAknow warrants to the Customer that:
(a) the Platform and Cloudockit Services will conform in all material respects with the Cloudockit Services Specifications;
(b) the Cloudockit Services will be free from Cloudockit Services Defects;
(c) the application of Updates to the Platform by ÜMAknow will not introduce any Cloudockit Services Defects into the Cloudockit Services; and
(d) the Platform will incorporate security features reflecting the requirements of good industry practice.
11.2. The Customer warrants to ÜMAknow that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
11.3. All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
- ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS
12.1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, ÜMAknow gives no warranty or representation that the Cloudockit Services will be wholly free from defects, errors and bugs.
12.2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, ÜMAknow gives no warranty or representation that the Cloudockit Services will be entirely secure.
12.3. The Customer acknowledges that the Cloudockit Services are designed to be compatible only with that software and those systems specified as compatible in the Cloudockit Services Specification; and ÜMAknow does not warrant or represent that the Cloudockit Services will be compatible with any other software or systems.
12.4 The Customer acknowledges that ÜMAknow will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Cloudockit Services; and, except to the extent expressly provided otherwise in this Agreement, ÜMAknow does not warrant or represent that the Cloudockit Services or the use of the Cloudockit Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
12.5. The Customer acknowledges that the accuracy of the content of the Report is not guaranteed in all material respects and that it is based on the quality and accuracy of the Customer Data and the Microsoft Azure or AWS APIs data;
- LIMITATIONS AND EXCLUSIONS OF LIABILITY
13.1. Nothing in this Agreement will:
(a) limit or exclude any liability for fraud or fraudulent misrepresentation;
(b) limit any liabilities in any way that is not permitted under applicable law; or
(c) exclude any liabilities that may not be excluded under applicable law.
13.2. The limitations and exclusions of liability set out in this Clause 13 and elsewhere in this Agreement:
(a) are subject to Clause 13.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
13.3. ÜMAknow shall not be liable to the Customer in respect of:
(a) any losses arising out of a Force Majeure Event;
(b) loss of profits or anticipated savings;
(c) any loss of revenue or income;
(d) any loss of use or production;
(e) any loss of business, contracts or opportunities;
(f) any loss or corruption of any data, database or software; and
(g) any special, indirect or consequential loss or damage.
13.4. The liability of ÜMAknow to the Customer under this Agreement in respect of any event or series of related events shall not exceed the Purchase Price for the then current Term where a fault may have caused a damage to the Customer.
14.1. Customer agrees to indemnify, defend, and hold ÜMAknow harmless from all claims, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any: (i) Customer breach of this Agreement; (ii) Customer Data passing to or from Customer through the Cloudockit Services or the Platform; (iii) taxes arising from the Purchase Price whether now in effect or imposed in the future; (iv) failure by Customer to obtain all necessary consents related to Customer Data; (v) claims by third parties arising from Customer’s use of the Cloudockit Services; and (vi) any reasonable costs and attorneys’ fees required for ÜMAknow to respond to a subpoena, court order or other official government inquiry regarding Customer Data or Customer’s use of the Cloudockit Services.
14.2. ÜMAknow shall defend and hold Customer harmless from any claim by a third party that the Cloudockit Services infringe any patent, copyright or trade secret of that third party. The foregoing obligation of ÜMAknow does not apply with respect to Cloudockit Services: (i) not supplied by ÜMAknow; (ii) used in a manner not expressly authorized by this Agreement (iii) made in accordance with Customer’s specifications; (iv) modified by anyone other than ÜMAknow, if the alleged infringement relates to such modification; (v) combined with other products, processes or materials where the alleged infringement would not exist but for such combination; or (vi) where Customer continues the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement.
14.3. The parties may request indemnification under this provision, provided they: (a) promptly give written notice of the claim to the indemnifying party; (b) give sole control of the defense and settlement to the indemnifying party (provided any settlement relieves the indemnified party of all liability in the matter); (c) provide all available information and reasonable assistance; and (d) have not previously compromised or settled such claim.
- FORCE MAJEURE EVENT
15.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
15.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
15.3. A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
16.1. ÜMAknow may terminate this Agreement for cause immediately and without notice to Customer if: (a) Customer commits a breach of this Agreement; (b) Customer becomes insolvent; or (c) Customer makes an unauthorized assignment of this Agreement. Upon termination of this Agreement, Customer agrees that its Account and all Customer Data or Customer Confidential Information will not be accessible anymore and ÜMAknow shall not have any obligation to retain such Customer Data or Customer Confidential information, which may be irretrievably deleted.
- EFFECTS OF TERMINATION
17.1. Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save for the provisions that shall survive by their nature.
17.2. The termination of this Agreement shall not affect the accrued rights of either party.
17.3. Upon termination, any Purchase Price paid by Customer for the Services may not be refund and the Customer agrees that such amount is a reasonable estimate of ÜMAknow’s damages and represent a counterparty for the Service and not a penalty. Notwithstanding the terms of article 2125 of Québec Civil Code, the Customer acknowledges and accepts that the Agreement may not be terminated before the Term or any renewal Term unless ÜMAknow is paid for the entirety of such Term.
18.1. Any notice from one party to the other party under this Agreement may be given, for the Customer by email to ÜMAknow at the following email address: email@example.com and by ÜMAknow to Customer at its email address specified in the Confirmation.
19.1. No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
19.2. If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
19.3. ÜMAknow reserves the right to modify the terms and conditions of this Agreement at any time, effective upon the posting of an updated version at http://www.cloudockit.com/terms/. Customer is responsible for regularly reviewing this Agreement. Continued use of the Services after any such change shall constitute Customer’s consent to the changes.
19.4. Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
19.5. This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
19.6. Subject to Clause 19.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
19.7. This Agreement shall be governed by and construed in accordance with the laws of the Province of Québec (Canada).
19.8. Any dispute in regards of this Agreement shall be instigated at the proper court in the judicial district of Montréal (Canada), to the exclusion of any other.