CData Cloud Services Agreement
CData Cloud Services Agreement
CData Cloud Services Agreement
This Terms of Service Agreement (the “Agreement”) is made between CData Software, Inc., a Delaware corporation (“CDATA”) and the party (“Customer”) that subscribes for the Cloud Services, as defined in the Order Form. Between CDATA and each Customer the Agreement consists of these terms, each signed order form or online enrollment (including any notes, pricing or other terms listed therein) (the “Order Form”), including any exhibits, and any updates or amendments to each. This Agreement is effective as of the date of Customer’s initial Order Form (the “Effective Date”). By executing the initial Order Form or accessing the Cloud Services, Customer agrees to all the terms set forth below. In the event of a conflict between the Order Form and this Agreement, this Agreement shall control unless the applicable provisions of the Order Form expressly states that it will control.
1. CLOUD SERVICES; SUPPORT
1.1 Cloud Services. CDATA grants Customer a limited, non- exclusive, non-sublicensable, nontransferable (except as specifically permitted in this Agreement) right to access and use the Cloud Services during the applicable Subscription Term, and in scope of use restrictions as set forth in the applicable Order Form, solely for Customer’s internal business purposes. “Cloud Services” means the web-based product developed, provided, and hosted by CDATA as specified on an Order Form. As part of the registration process, Customer will identify an administrative username(s) and password(s) for Customer’s paid user(s) of the Cloud Services (each an “Authorized User”).
1.2 Orders by Affiliates. Customers and Affiliates may each use the Cloud Service pursuant to this Agreement. To the extent Customer’s Affiliates wish to make separate purchases, any of Customer’s Affiliates may execute a new Order Form for Cloud Services purchased specifically for that Affiliate entity and will be subject to this Agreement unless otherwise noted. “Affiliate” means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a current or prospective competitor to CDATA or in the business of developing and offering products or technologies that are substantially similar to the Cloud Services.
1.3 Support. We will provide support in accordance with the policy available at our website. Support is subject to the terms of this Agreement, the Order Form, and the support policy. If Customer chooses to grant the CDATA team access to their account for troubleshooting purposes, Customer acknowledges and agrees that employees or contractors of CDATA or its Affiliates will be granted access to Customer’s account and may query the data accessed by Customer during their usage of the Cloud Services, change the Customer’s settings and otherwise modify Customer’s account for the sole purpose of improving the Customer’s usage of the Cloud Services.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Use of Software Underlying Cloud Services. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Cloud Services or any software, documentation or data related to the Cloud Services (the “Software”); modify, translate, or create derivative works based on the Cloud Services or any Software (except to the extent expressly permitted by CDATA in writing or authorized within the Cloud Services); frame, mirror or use the Cloud Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Appropriate Use of Cloud Services. Customer will not and shall ensure that Authorized Users do not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Cloud Services, any software related the Cloud Services, or the Documentation (collectively, the “CDATA Materials”); (ii) permit any third party to access the CDATA Materials except as permitted herein and in the relevant Order Form, (ii) modify, translate, publish, or create derivate works based on the CDATA Materials (except to the extent expressly permitted by CDATA in writing or authorized within the Cloud Services), (iii) copy, frame or mirror any part or content of the CDATA Materials, including for service bureau or time sharing purposes or otherwise make the CDATA Materials available to a third party, (iv) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the CDATA Materials, in whole or in part, nor will Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the CDATA Materials or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), (v) access the CDATA Materials in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the CDATA Materials, (vi) sell, resell, rent or lease the CDATA Materials, (vii) use the CDATA Materials to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party intellectual property rights, privacy rights, or rights of publicity, or otherwise use the CDATA Materials in violation of the Documentation or this Agreement, (viii) remove any proprietary notices or labels, (ix) store or transmit virus or other malicious code through the CDATA Materials, (x) interfere with or disrupt the integrity or performance of the CDATA Materials, or third-party products or data contained therein, or (xi) attempt to gain unauthorized access to the CDATA Materials or their related systems or networks. Customer acknowledges that Customer is solely responsible for complying with, and covenants to comply with, all laws applicable to Customer and to Customer’s use of the CDATA Materials, including without limitation all laws and regulations relating to the protection and non-disclosure of Customer Data (as defined in Section 3.1). Without limiting the generality of the foregoing, the Customer is solely responsible for using the Cloud Services in compliance with, any applicable laws regarding data privacy or personally identifiable information.
2.3 Protection of Customer Data. CDATA will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data in accordance with the Security Policy available upon request. CDATA may update this policy provided any such updates will no degrade or materially change CDATA’s obligations therein. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by CDATA personnel except (a) to provide the Cloud Services and to prevent or address service or technical problems, or (b) as Customer expressly permits in writing. For the Cloud Services, CDATA does not directly monitor, track, or inspect Customer Data, including personally identifiable information (PII), and personal healthcare information (PHI). Customer may configure the appropriate software settings based on Customer’s use and security standards. CDATA will not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (c) access Customer Data, except to access to address service or technical problems. Any exchange of data between Customer and any third party, is solely between Customer and the applicable third party.
2.4 OpenAI Services. If Customer chooses to access the OpenAI-connected features of the Cloud Services, CDATA will send certain customer table metadata related to your use of such features to Azure OpenAI. This means that any sensitive information including personal information as that term is defined under various privacy laws contained in your questions or customer table metadata, could be passed to Azure OpenAI. For clarity, CDATA does not send any other data provided by the Customer to 3rd parties in relation to the use of these features. CDATA will not train models using such data, and our trained model partner (Azure OpenAI) has made representations that they will not train models using such data.
2.5 HIPPA Data Warning. Please do not use the Cloud Services to process any sensitive information, including any patient information (e.g., patient names, telephone number, any dates associated with a patient, and any unique identifying numbers associated with patient accounts) or any information that is subject to restrictions imposed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (as amended). It is Customer’s responsibility to ensure that such information is not placed on the Cloud Services. IF CUSTOMER’S USE OF THE CLOUD SERVICES REQUIRES THE USE OF SENSITIVE INFORMATION, PLEASE CONTACT CDATA REGARDING THE USE OF OUR SERVICES OUTSIDE THE CLOUD ENVIRONMENT.
3.1 Confidential Information. Subject to the limitations set forth herein, all information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information”. Confidential Information of CDATA includes non-public information regarding features, functionality and performance of the Cloud Services and Software. Confidential Information of Customer includes all data provided by Customer to CDATA to enable the provision of the Cloud Services (“Customer Data”).
3.2 Exceptions. Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.
3.3 Nondisclosure. Each party covenants that it will not disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Information as this Agreement, or (b) pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party’s Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.
3.4 Return; Destroy; Protect. On the disclosing party’s request, the receiving party must return or destroy all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party other than: (a) records the receiving party has a separate legal right or obligation to retain; and (b) copies of Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies. To the extent the receiving party retains information disclosed by the disclosing party, the receiving party will continue to protect such information in accordance with Section 3.3: (x) for so long as it meets the definition of Confidential Information above; (y) if it constitutes a trade secret for so long as required under applicable law, and/or (z) if it constitutes personal data received from the disclosing party for so long as required by applicable law.
3.5 Customer Identification. CDATA may identify Customer as a user of the Cloud Services and may use Customer’s name and logo in CDATA’s customer list, press releases, blog posts, advertisements, and website.
4. PROPRIETARY RIGHTS
4.1 Ownership Rights. Customer owns all right, title and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Cloud Services, and all intellectual property rights related to any of the foregoing. CDATA owns and retains all right, title and interest in and to (a) the Cloud Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed by or on behalf of CDATA in connection with the Cloud Services, and (c) all intellectual property rights related to any of the foregoing.
4.2 Injunction for Breach. The parties agree that damages would be an inadequate remedy in the event of a breach of Sections 3 or 4. Therefore, the parties agree that a party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach by the other party of Sections 3 or 4.
5. PAYMENT OF FEES
5.1 Calculation of Fees. Customer will pay CDATA the applicable fees described in each Order Form (the “Fees”). Fees for committed prepaid subscriptions are identified on the initial Order Form. Except as otherwise provided herein or as set forth by our payment processor here https://stripe.com, all fees are nonrefundable. Per-Authorized User pricing assumes normal query usage per paying Authorized User of the Services. If Customer’s use of the Cloud Services exceeds the capacity set forth herein or on the Order Form(s), or otherwise requires the payment of additional fees, CDATA will invoice Customer in arrears for such additional usage and Customer agrees to pay the additional Fees in the manner provided herein.
5.2 Payment Terms. CDATA will bill for the Cloud Services through an invoice, through the marketplace where the original purchase was made, or directly through credit card if provided. Full payment for invoices issued in any given month must be received by CDATA within 30 days after the issuance of the invoice (which may be sent by email). If Customer is paying by credit card, Customer represents and warrants that it has the right to use the credit card provided and grants CDATA the right to provide the credit card information, including the credit card number, its expiration date and billing address, to third parties for the purposes of facilitating payment transactions. Verification of information may be required prior to the acknowledgment or completion of any payment transaction. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Cloud Services. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on CDATA’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to CDATA hereunder. If an applicable tax authority requires CDATA to pay any taxes that should have been payable by Customer, CDATA will advise Customer in writing, and Customer will promptly reimburse CDATA for the amounts paid. If Customer believes that CDATA has billed Customer incorrectly, Customer must contact CDATA no later than 60 days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to CDATA’s accounting department. Without limiting its other remedies, CDATA may suspend Cloud Services for nonpayment of fees.
6. TERM AND TERMINATION
6.1 Term. This Agreement will continue from the Effective Date until the earlier of: (a) the expiration of all Cloud Services subscriptions or (b) termination pursuant to Section 6.2 below (together, the “Term”). Month-to-month plans will renew automatically each month and may be cancelled at any time on notice by either party to the other. Each Cloud Services subscription will run for the subscription term specified in the applicable Order Form and will renew automatically on CDATA’s then-current terms and conditions for one-year periods unless a party provides notice of nonrenewal to the other part at least 30 days prior to expiration of the applicable. CDATA will notify Customer in connection with any renewal to provide opportunity for notice and/or cancellation.
6.2 Termination for Cause. In addition to any other remedies it may have, (A) either party may terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party (i) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (ii) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets and (B) CDATA may additionally terminate this Agreement and the Cloud Services (or any portion of the Cloud Services) immediately and without notice if it has reason to believe Customer is violating Section 2 of this Agreement. In the case where CDATA terminates this Agreement for Customer’s breach, Customer remains obligated to pay the balance due on Customer’s account for the remainder of the Term, computed in accordance with the applicable Order Form(s), and will be billed for such unpaid fees.
6.3 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTIES AND DISCLAIMER
7.1 Authority. Each of CDATA and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
7.2 Cloud Services Warranty. CDATA shall use reasonable efforts consistent with prevailing industry standards to maintain the Cloud Services in a manner which minimizes errors and interruptions in the Cloud Services and shall perform implementation and support Cloud Services in a professional and workmanlike manner.
7.3 CDATA DOES NOT WARRANT THAT THE CLOUD SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CLOUD SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE CLOUD SERVICES ARE PROVIDED “AS IS” AND CDATA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
8.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS AND SUPPLIERS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF CDATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMER’S LIABILITY FOR MISAPPROPRIATION OF CDATA’S INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE AND CLOUD SERVICES.
8.2 DIRECT DAMAGES. THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO CDATA DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM, OR $100 IF CUSTOMER IS USING A TRIAL OF THE CLOUD SERVICES. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
9.1 No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.
9.2 Notices. All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to each party at its respective address provided on the initial Order Form.
9.3 Enforceability. If any provision of this Agreement is adjudicated invalid or unenforceable, this Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect.
9.4 Force Majeure. If the performance of this Agreement or any obligations (other than payment obligations) hereunder is prevented or interfered with by any act or condition beyond the reasonable control of a party hereto, that party upon giving prompt notice to the other party shall be excused from such performance during such occurrence.
9.5 Assignment. You may not, without our prior written consent, assign or novate this Agreement or any of your rights or obligations under this Agreement, or the Services or any of our Confidential Information, in whole or in part, by operation of law, sale of assets, merger or otherwise, to any other party, including any parent, subsidiary or affiliated entity. Your Change of Control will constitute an assignment for purposes of the preceding sentence. A “Change of Control” will include, but not be limited to, any merger, consolidation, amalgamation, reorganization or sale, transfer or exchange of the capital stock or equity interests of you in a transaction or series of transactions which results in the holders of your capital stock or equity interests holding less than 50% of the outstanding capital stock or equity interests immediately following such transaction(s).
9.6 Integration. This Agreement is the complete statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by CDATA in lieu of or in addition to CDATA’s Order Form, Customer’s purchase order shall be binding only as to the following terms: (a) the Cloud Services ordered and (b) the appropriately calculated fees due. Other terms shall be void.
9.7 Amendment; Counterparts. Except as otherwise stated in this Section 9.7, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement. From time-to-time CDATA may modify this Agreement. Unless another agreement between the parties supersedes this Agreement, changes become effective for Customer upon renewal of the then-current subscription term or entry into a new Order Form after the updated version of this Agreement goes into effect.
9.8 Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act.
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Last Revised November 2, 2023.