In these Terms, the following expressions shall have the following meanings:
“Account Data” means any of your account data or information used with, stored in or by the Services (or any part of them) or that may be processed by any Cloud Computing Provider.
“AWS” means Amazon Web Services.
“Cloud Computing Provider” means third party who may provide services such as data processing, data storage, data transmission, network and related infrastructure services provided through the internet, which for the avoidance of doubt shall include AWS.
“CloudRanger Account” an account which is created by you or assigned to you to use the Services.
“CloudRanger” or “we” or “our”” means Silver Lining Cloud Consulting Limited t/a CloudRanger a private limited company incorporated in Ireland with its registered office at Colab, LYIT, Letterkenny, Co. Donegal, Ireland.
“Fee” means the fees payable by you to CloudRanger, dependent on the Service Plan as set out in clause 6.
“Indirect Tax” means without limitation, value-added tax, goods and services tax, sales and use and similar transaction taxes, and gross receipts tax, as the case may be.
“Service Plan” means the plan for the provision of Services that you select when you use the Services, as described on our website.
“Services” means CloudRanger’s cloud computing platform management, automation, scheduling and optimisation services.
“Software” means the source code, object code or underlying structure, ideas or algorithms of the Services, or any software, documentation or data related to the Services owned by CloudRanger and made available to you by CloudRanger.
“Taxes” means taxes, levies, duties or similar national, federal, state, provincial, or local governmental assessments of any nature, including Indirect Tax, that are assessable by any jurisdiction under applicable law.
“Terms” means these Terms of Service, including the CloudRanger Policies, as may be amended from time to time.
2. Using our Services
2.1. Your use of the Services is subject to your compliance with these Terms.
2.2. You may use our Services only as expressly set forth in these Terms and in all cases in accordance with all applicable export and re-export control laws and regulations, data protection and privacy laws and all other applicable laws and regulations. You must comply with any policies made available to you in connection with the performance of the Services, including but not limited to any CloudRanger Policies.
2.3. Restrictions and Responsibilities
2.3.1. You shall:
(a) not remove, obscure or alter any labels or proprietary notices (including copyright notices) affixed to or contained within any Services;
(b) not directly or indirectly attempt to copy, duplicate, modify, convert, create derivative works from or distribute all or any portion of any Software (except to the extent expressly set out in these Terms or allowed by any applicable law which is incapable of exclusion by agreement between the parties);
(c) not directly or indirectly attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (except as allowed by any applicable law which is incapable of exclusion by agreement between the parties);
(d) not interfere with our Services or try to access them (or any part of them) by using a method other than the interface and the instructions we provide; and
(e) not access Services to create competitive products to CloudRanger or engage in the competitive analysis of Services.
2.4. IP Acknowledgement and Cloud Computing Providers
2.4.1. IP Acknowledgment. Using our Services (or any part of the Software) does not give you ownership of any copyright or other intellectual property rights in or to the Services (or any part of the Software). CloudRanger grants to you a limited, revocable, non-exclusive, non-transferable and non-sublicensable licence to access and use the Services in accordance with these Terms.
2.4.2. Cloud Computing Providers. The Services interface or operate in conjunction with services provided by Cloud Computing Providers as approved by Cloud Ranger from time to time, including AWS. It is hereby agreed that:
(a) those services offered by Cloud Computing Providers do not form part of the Services and are owned and operated by the applicable Cloud Computing Provider;
(b) you will be responsible for obtaining and maintaining access to any services offered by Cloud Computing Providers;
(d) the full functionality and benefits of the Services may not be available to you if you elect to use services offered by Cloud Computing Providers that are not approved by CloudRanger;
(e) by providing any access APIs, codes, passwords or access keys for services offered by Cloud Computing Providers to us, you authorise CloudRanger to access any of your applications and infrastructure of a Cloud Computing Provider for the purpose of providing the Services to you. We do not provide any warranties as to the security of a Cloud Computing Providers’ systems to keep the access codes, passwords or keys secure;
(f) any activity on your account with any Cloud Computing Provider shall remain your sole and exclusive responsibility and that CloudRanger shall not be responsible for any activities on your Cloud Computing Provider’s account, by using the Services; and
(g) services offered by Cloud Computing Providers may change, become obsolete or unavailable from time to time. We do not provide any warranties or guarantees in relation to services offered by Cloud Computing Providers used by you and it is your responsibility to conduct due diligence as to the suitability of the services offered by Cloud Computing Provider’s suitability to meet your needs. To the extent allowed by law, we disclaim all liability in relation to and arising out of the access or use of services offered by Cloud Computing Providers.
3. About Software in our Services
3.1. When a Service requires or includes Software, this Software may update automatically once a new version or feature is available.
3.2. Some Software used in our Services may be made available under an open source license that we will make available to you. There may be provisions in the open source license, to the extent applicable to that open source software, that expressly override some of these Terms.
3.3. CloudRanger does not grant you or any third party any title, interest, license or rights that are not expressly granted in these Terms.
4. CloudRanger Account
4.1. You will need a CloudRanger Account in order to use the Services.
4.2. You must provide a valid user name and password for your CloudRanger Account. CloudRanger reserves the right to refuse registration of or cancel user names or passwords it deems inappropriate.
4.3. It is your sole responsibility to ensure that your CloudRanger Account details, passwords, login details and any other security or access information used by you to use or access the Services are kept safe and confidential. You must prevent unauthorised access to and use of any of your Account Data.
4.4. You are responsible for electronic communications sent to CloudRanger or to any third party containing Account Data and for all uses of the Services in association with your Account Data, whether or not authorised by you. When we receive communications containing your Account Data, we assume you sent it to us. If you learn of any unauthorised use of your login, password, Account or Account Data, you must notify CloudRanger immediately. You must notify CloudRanger immediately if you suspect access or use by an unauthorised party, or if your CloudRanger Account is otherwise compromised.
4.5. You are solely responsible for all information, data and content, including any Account Data, stored on, published or accessed through the Services. You are responsible for creating back-ups of all content and data, included Account Data, used under your CloudRanger Account. You must ensure that each person you authorise to use you CloudRanger Account complies with these Terms.
5.1. We will bill you for the Fees corresponding to your Service Plan using one of the payment methods offered by us. Depending on your Service Plan, Fees will be billed on a recurring basis (e.g. monthly or annually) in advance, while any subscription is active. All payments to CloudRanger must be without deduction, set-off, counterclaim or withholding and are final and non-refundable.
5.2. We reserve the right to limit your use of the Services, based on the Service Plan you choose.
5.3. If we decide to increase any of the Fees applicable to your Service Plan, we will give you at least 30 days’ prior notice.
5.4. With respect to the transactions and payments contemplated in this Agreement, each party shall be solely responsible to pay all Taxes and governmental fees and charges (and, any penalties, interest, and other additions thereto) that each party is liable to pay under applicable law or otherwise under this Agreement. All Fees payable under this Agreement are exclusive of applicable Taxes. If either party has an obligation under applicable law or this Agreement to pay or collect Indirect Tax for which the other party is legally liable or responsible under this section, then the paying or collecting party will invoice the other party for such Indirect Tax, which the invoiced party will pay. The invoice will satisfy requirements under applicable law for a valid tax invoice. Each party will provide the other party with such information as is reasonably required to determine whether there is an obligation to pay or collect Indirect Tax. Neither party shall pay or collect any Indirect Tax from or on behalf of the other party for which, under applicable law, (i) the other party has previously provided to the paying or collecting party a properly completed and valid exemption certificate, or (ii) the parties may otherwise claim an available, valid exemption from such Indirect Tax.
5.5. CloudRanger reserve the right, but are under no obligation, to offer users of the Services a free trial of the Services for a period of time as determined by CloudRanger. Except for the provisions concerning price and payment, these Terms apply to any such free trial period.
6. Your Personal Data
7. Your Warranties and Representations
7.1. You hereby represent, covenant and warrant to CloudRanger that:
7.1.1. you have all necessary right, power and authority to enter into the agreement contemplated by these Terms, to perform the acts required of you hereunder and to permit CloudRanger to perform the Services contemplated by these Terms;
7.1.2. your use of the Services, the delivery and performance by you of these Terms, does not and will not conflict with or violate any agreement or other instrument with a third party applicable to you;
7.1.3. you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including policies and laws relating to spamming, data protection, privacy, intellectual property, consumer and child protection, obscenity or defamation);
7.1.4. to the extent that you collect, process, use, store, transfer or otherwise disclose any personal information or other information regarding individuals in connection with the Services, you have and will have all necessary permissions and consents to do so and that all such collection, processing, transferring for use in relation to the provision of the Services (or any part thereof) and/or storage is and shall be undertaken in full compliance with all applicable laws, rules and regulations, including those pertaining to privacy and data protection in all relevant jurisdictions will comply with and will have and maintain any and all necessary consents, authorisations and clearances from to collect, use, process, store, disclose;
7.1.5. you will use the Services only in compliance with these Terms (including any other CloudRanger Policies); and
7.1.6. you shall not use the Services to access, process, store, distribute or transmit any material that:-
(a) is unlawful or harmful;
(b) you know contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; or
(c) is in a manner that is otherwise illegal or causes damage or injury to any person or property.
8. Modifying and Terminating our Services
8.1. We are constantly changing and improving our Services. We may add or remove functionality or features, and we may suspend or stop the Services, or any portion of the Services, altogether.
8.2. Termination by notice
Either party may terminate the provision of Services for any reason by providing 30 days’ notice to the other party. You will not be entitled to a refund for any pre-paid Fees following termination pursuant to this section. In the event that we terminate the provision of Services under this section, we will provide a pro-rated refund of any pre-paid Fees to you.
8.3. Termination by Cloud Ranger
8.3.1. We may terminate the Services immediately by notice in writing if:
(a) we are required to cease providing the Services for any reason;
(b) we are no longer able to provide the Services due to the expiry or termination of any arrangement with any third party provider (including any Cloud Computing Provider); or
(c) we determine, in our absolute discretion, that it is uneconomical, impractical or unfeasible to continue providing the Services.
8.4. For the avoidance of doubt, any failure by you to remit payment of the Fees as and when they fall due under these Terms shall be an event which, if not remedied by you on notice, may give rise to immediate suspension or termination of the Services by CloudRanger.
8.5. Effect of expiry or termination
8.5.1. Upon the expiry or termination of the Services:
(a) you will no longer be entitled to access or use the Services and we will delete any Account Data stored on our servers no later than 30 days after the expiration or termination of the Services, unless prohibited by applicable law;
(b) you must pay to CloudRanger all outstanding fees and charges accrued through the date of termination or expiry, unless otherwise stated in this Agreement;
(c) clauses 6, 7, 9, 10, 11 and 12 shall survive termination or expiry of the Services or these Terms.
8.5.2. You acknowledge that suspension or termination of the Services or these Terms may result in you being unable to access or recover data, including Account Data. We will under no circumstances be liable for any loss of Account Data or any other data as a result of suspension or termination. If applicable, you must ensure that you arrange alternate access to the Account Data with third party providers (including Cloud Computing Providers).
9.1. You agree to defend, indemnify, and hold harmless CloudRanger, our affiliates, officers, agents, and employees, directors, and representatives from and against any claim or liability (including legal fees on a full indemnity basis) directly or indirectly arising out of or relating to:
(a) the use of the Services by you or any other third party having access to your CloudRanger Account;
(b) breach of these Terms or violation of an applicable law by you;
(c) any claim in relation to the Account data, including without limitation alleged infringement or misappropriation of third-party rights (including intellectual property rights); or
(d) a dispute between you and any other third party.
10. Warranty and Disclaimer
10.1. CloudRanger shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services.
10.2. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by CloudRanger or by third-party providers, or because of other causes beyond CloudRanger’s reasonable control.
10.3. CloudRanger does not warrant that the Services and/or the Software will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services and/or the Software. The Services and the Software are provided “as is” and CloudRanger disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.
11. Limitation of Liability
11.1. Notwithstanding anything to the contrary, and to the maximum extent permitted by applicable law, CloudRanger, its authorised resellers, referral partners, licensees and suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of these Terms or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use of services, or for loss or inaccuracy or corruption of data, or cost of procurement of substitute goods, services, equipment or technology, or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond CloudRanger’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the aggregate fees received paid by you for the Services in the three months prior to the date the claim arose, in each case, whether or not CloudRanger has been advised of the possibility of such damages. In all cases, CloudRanger, its authorised resellers, referral partners and licensees, will not be liable for any loss or damage that is not reasonably foreseeable.
11.2. In no event shall CloudRanger be responsible for the availability, reliability, timeliness or accuracy of any third party material or other content available in connection with or referenced in the Services. We make no warranties or representations whatsoever regarding the accuracy, adequacy, truthfulness, completeness, reliability or usefulness of such information. Each of the third party materials and/or content may be governed by legal notices and privacy policies which differ from ours. The views and opinions expressed in such third party materials and/or content, or any part of them, do not necessarily reflect CloudRanger’s views or opinions.
11.3. Some jurisdictions provide for certain warranties, like the implied warranty of merchantability, fitness for a particular purpose and non-infringement. To the maximum extent permitted by applicable law, we exclude all warranties.
11.4. To the maximum extent permitted by applicable law, CloudRanger, and CloudRanger’s authorised resellers, referral partners and licensees, will not be responsible for lost profits, revenues, or data, financial losses or indirect, special, consequential, exemplary, or punitive damages.
12.1. To the extent of a conflict between the provisions of any of the documents comprising these Terms, the order of precedence will be (1) these Terms and (2) the CloudRanger Order Form, if applicable. Any additional or conflicting terms and conditions appearing in your separate purchase order or order confirmation will not be effective unless agreed in writing by both parties’ authorized representatives.
12.2 If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The Terms are not assignable, transferable or sub-licensable by you except with Cloud Ranger’s prior written consent. CloudRanger may transfer and assign any of its rights and obligations hereunder without consent.
12.3. These Terms, and all documents referred herein, are the complete and exclusive 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 hereof.
12.4. Without prejudice to our rights under the Terms (or any part of them) or any other remedies available to CloudRanger at law, we may suspend or stop providing our Services to you if you do not comply with the Terms, or if we are investigating suspected misconduct by you. If you do not comply with these Terms, and we don’t take action right away, this doesn’t mean that we are waiving or giving up any rights that we may have (such as taking action in the future).
12.5. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
12.6. All notices under these Terms will 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 recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt (or its equivalent) requested.
12.7. These Terms shall be governed by the laws of the Republic of Ireland without regard to its conflict of laws provisions and you agree to submit to the exclusive jurisdiction of the Irish courts.
12.8. We may modify these Terms or any additional terms that apply to a Service to, for example, to reflect changes to the law or changes to our Services. You should look at the Terms regularly. We will post notice of material modifications to these Terms at our website. We will post notice of modified additional terms in the applicable Service. Changes will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.
12.9. For information about these Terms or how to contact CloudRanger, please email Cloud Ranger at email@example.com.
Information correct as of July 2018