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Cumulus Solutions - Usage Agreement
THIS CUMULUS USAGE AGREEMENT (this "Agreement") is entered into by and between Cumulus Solutions("Cumulus"), and you, the registered single end--user customer organization or entity ("You").
BY CLICKING ON THE "I ACCEPT" BUTTON OR BY USING ANY CUMULUS SERVICE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT, AND THE TERMS SHALL BE BINDING WITH RESPECT TO YOUR USE OF THE CUMULUS SERVICES IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL NOT BE ABLE TO SUBSCRIBE TO OR USE THE CUMULUS SERVICES.
1. DEFINITIONS. As used in this Agreement:
1.1 "Cumulus Web Site" means the online information or service interface to the Cumulus Web Services Business Network that is accessible via a Web browser, http://www.cumulusbox.com or http://www.cumulusforce.com .
1.2 "Registered Provider" means a third party provider of the Web Service Data that has specifically authorized Cumulus to access, use and make limited distribution of applicable Web Service Data included in such third party Web Service.
1.3 "Web Service Data" means all data and information that is delivered through or derived from a Web Service.
1.4 "Web Service(s)" means a function provided by one software system or application and available for access by another software system or application over the internet or a network.
1.5 "Cumulus Third Party Integration(s)" means an integration of the Cumulus Web Services into a third party software system or application provided by Cumulus.
1.6 "Cumulus Third Party Application" means an application developed by Cumulus which adds functionality to a Third Party Application like salesforce.com.
1.7 “Cumulus Service(s)” means all Applications and Services provided by Cumulus which are referenced and not limited by in sections 1.1, 1.2, 1.3, 1.4, 1.5 and 1.6 .
2. AUTHORIZATION AND LICENSES
2.1 Authorization to Use the Cumulus Web Services. Subject to the terms and conditions of this Agreement, Cumulus hereby grants to You a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable (in accordance with Section 9) license to use the Cumulus Web Services to access, download use and integrate into any application, system, wireless device or Web site the Cumulus Web Services from the Registered Provider for which you have paid the applicable subscription fee. You acknowledge that the Web Service Data and the Web Service may change from time to time for upgrade purposes without notice. From time to time, You may modify or change the Cumulus Web Service included in Your service. Any such changes and/or modifications shall be governed by the terms and conditions of this Agreement.
2.2 Authorization to Use the Cumulus Third Party Integrations to the terms and conditions of this Agreement, Cumulus hereby grants to You a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable (in accordance with Section 9) license to use the Cumulus Third Party Integrations to access and use the Cumulus Web Services for which you have paid the applicable subscription fee. You acknowledge that the Cumulus Third Party Integrations may change from time to time for upgrade purposes without notice.
2.3 Authorization to Use the Cumulus Third Party Application to the terms and conditions of this Agreement, Cumulus hereby grants to You a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable (in accordance with Section 9) license to use the Cumulus Third Party Application for which you have paid the applicable subscription fee. You acknowledge that the Cumulus Third Party Application may change from time to time for upgrade purposes without notice.
2.4 Limitations. You acknowledge that any use of the Cumulus Web Services, Cumulus Third Party Application or the Cumulus Third Party Integrations, other than as explicitly permitted by this Agreement is prohibited. You will not: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from the Cumulus Web Services or Cumulus Third Party Application; (b) remove, alter, or obscure any proprietary notices (including restricted rights, trademark and copyright notices) of Cumulus or its Registered Providers; (c) otherwise use or copy the Cumulus Web Services, Cumulus Third Party Application or the Cumulus Third Party Integrations or any part thereof, except as expressly allowed under Section 2.1 and 2.2; or (d) resell any of the Web Service Data. You are responsible for the compliance by your personnel and agents with the terms of this Agreement.
2.5 No Implied Rights. There are no implied licenses under this Agreement, and You acknowledge and agree that, subject to the license grants contained in this Agreement, Cumulus and its licensors retain all rights not expressly granted to You. Except as expressly provided in this Agreement, Cumulus does not grant and You do not obtain any right to use, distribute, sell, or sublicense the Cumulus Web Services, Cumulus Third Party Application or the Cumulus Third Party Integrations in any form.
3. OPERATION OF CUMULUS SERVICES
3.1 Access to Cumulus Web Services. You must: (a) provide all equipment, including communications infrastructure, necessary to establish a connection to the World Wide Web; and (b) provide for Your access to the World Wide Web and pay any telephone service fees or network access fees associated with such access.
3.2 Responsibility for Transmitted Data. You acknowledge and agree that certain of the Web Services Data belongs to third parties and is subject to certain third party restrictions. All such third party restrictions will be made available to you at such time as you subscribe to the Cumulus Web Services or modify your level of Cumulus Web Services. By entering into this Agreement and by using the Cumulus Web Services, you acknowledge that you have read and agreed to comply with any such restrictions. Cumulus shall have no responsibility or obligations with respect to such third party content.
3.3 Usage Data. In order for Cumulus to make the Cumulus Services available, Cumulus may need to collect information about Your use of the Cumulus Services ("Usage Data"). Cumulus reserves the right to use all such Usage Data as Cumulus deems appropriate for Cumulus's internal business purposes. All Usage Data and other information collected by Cumulus on the Cumulus Services will be subject to the Indian privacy law and in no circumstance be sold.
4. USAGE POLICIES AND RESTRICTIONS
4.1 Account Passwords. You will receive a password to use or access the Cumulus Web Services. You are solely responsible and bear all attendant liability if You fail to maintain the confidentiality of these passwords. Furthermore, You are solely liable for any and all activities that occur on Your account. You agree to immediately notify Cumulus of any unauthorized use of Your account or any other breach of security known to You.
4.2 General Policies and Limitations of Use. Cumulus may establish general policies and restrictions concerning use of the Cumulus Services and post such rules on the Cumulus Web Site. You will comply with the usage policies and restrictions for the Cumulus Services as Cumulus may amend such policies and restrictions from time to time. Cumulus reserves the right to change these general policies and restrictions at any time, by posting such changes on the Cumulus Web Site. If You become aware of any violations of the requirements in this Section 4, You will use your best efforts to remedy and report promptly to Cumulus all such violations.
4.3 Compliance with Laws and Policies. You hereby agree to abide by and comply with (a) all applicable local, state, national, and international laws and regulations (including applicable laws that pertain to the transmission of technical data, privacy, the encryption of software, the export of technology, the transmission of obscenity, or the permissible uses of intellectual property); and (b) all then--current requirements, procedures, policies, and regulations of networks connected to or using the Cumulus Web Services.
4.4 Prohibited Uses. You will not use the Cumulus Services to take any action, or assist others in taking any action, that (a) is unlawful, harassing, invasive of another's privacy, abusive, threatening, harmful, obscene, defamatory, libelous, or fraudulent; (b) violates the personal privacy rights of others, including the collection and distribution of information about Internet users without their permission; (c) victimizes, harasses, degrades, or intimidates any individual or group of individuals; (d) infringes or misappropriates any patent, trademark, trade secret, copyright, or other intellectual property rights of any party; (e) constitutes unauthorized or unsolicited transmission of advertising, junk or bulk email, or other form of unauthorized solicitation or spam; (f) constitutes an attempt to impersonate any person or entity; (g) is intended to omit, delete, forge, or misrepresent transmission information, including headers, return mailing, and Internet protocol addresses; (h) is intended to withhold or cloak the identity or contact information of You or any Registered Providers; (i) interferes with or disrupts the use of the Cumulus Services by others; (j) results in the disclosure of confidential or insider information; or (k) involves the use of any viruses or codes, files, or programs designed or intended to cause damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information. You acknowledge that Cumulus neither endorses the content of any user's communications, nor assumes responsibility for any threatening, libelous, obscene, harassing, or offensive material contained therein, any infringement or misappropriation of third party intellectual property rights arising therefrom, or any crime facilitated thereby.
4.5 Denial of Access. Cumulus reserves the right to deny access to the Cumulus to any account that violates the policies and restrictions set forth in this Section 4. Cumulus further reserves the right to take measures to protect its service and other users from harm, compromised capacity, or degradation in performance. These measures may impact your service, and Cumulus reserves the right to deny, modify, or terminate service, with or without notice, if you are using the Cumulus service in a manner that adversely impacts our services.
5. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that, subject to the license grants contained in this Agreement, Cumulus and its respective licensors retain all right, title and interest in their respective intangible, intellectual, proprietary and industrial property rights and all intangible embodiments and derivative works thereof, including any and all now known or hereafter existing, in and to: (a) trademarks, trade names, service marks, slogans, domain names, uniform resource locators or logos; (b) copyrights, moral rights, and other rights in works of authorship; (c) patents and patent applications, patentable ideas, inventions and innovations; (d) know--how and trade secrets; and (e) registrations, applications, renewals, extensions, continuations, divisions or reissues of the foregoing (collectively "Intellectual Property Rights"). Except as explicitly set forth herein, neither this Agreement nor any services provided hereunder will give You any ownership interest in the Intellectual Property Rights of Cumulus or its licensors. Without limiting the generality of the foregoing, You hereby agree that (a) Cumulus and its suppliers and licensors retain ownership of all Intellectual Property Rights relating to or embodied in the Cumulus Web Services, Cumulus Third Party Application and Cumulus Third Party Integrations (b) You have no right, title, or interest in or to any Intellectual Property Rights therein, and (c) except for the limited licenses granted to You under this Agreement, nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license by Cumulus to the Cumulus Web Services, Cumulus Third Party Application and Cumulus Third Party Integrations under any Intellectual Property Rights.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
6.1 Warranties. You represent and warrant that (i) You have the full right, power, and authority to enter into this Agreement; and (ii) Your execution and performance of this Agreement does not and will not breach or cause a conflict with any other agreement to which You are bound.
6.2 Disclaimers. CUMULUS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND SPECIFICALLY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, OF THE CUMULUS WEB SERVICES AND CUMULUS THIRD PARTY INTEGRATIONS. CUMULUS DOES NOT REPRESENT OR WARRANT THAT THE CUMULUS WEB SERVICES WILL OPERATE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS OR THAT DEFECTS IN THE CUMULUS WEB SERVICES WILL BE CORRECTED. YOU ACKNOWLEDGES THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CUMULUS WEB SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF APPLICATIONS OR DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. CUMULUS MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE CUMULUS WEB SERVICES, ANY TRANSACTIONS ENTERED USING THE CUMULUS WEB SERVICES OR CUMULUS THIRD PARTY INTEGRATIONS, OR ANY THIRD--PARTY PRODUCTS OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CUMULUS OR THROUGH THE CUMULUS WEB SERVICES CREATES ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to You. To the extent that Cumulus may not disclaim any warranty as a matter of law, the scope and duration of such warranty will be the minimum permissible under applicable law.
7. LIMITATIONS ON LIABILITY
7.1 Disclaimer of Liability. NEITHER CUMULUS NOR ITS REGISTERED PROVIDERS OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY DAMAGES RESULTING FROM ANY INTERRUPTION OR DISRUPTION IN COMMUNICATIONS OR SERVICES, UNAVAILABILITY OR INOPERABILITY OF SERVICES, TECHNICAL MALFUNCTION, LOST DATA, OR LOST PROFITS, EVEN IF CUMULUS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBLITY OF OR COULD HAVE REASONABLY PREVENTED SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF CUMULUS UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED EUR 100 (ONE HUNDRED EUROS). IN NO EVENT WILL CUMULUS'S REGISTERED PROVIDERS HAVE ANY LIABILITY ARISING OR RESULTING FROM THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, CUMULUS WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY YOUR COMBINATION OF THE CUMULUS WEB SERVICES WITH SOFTWARE NOT SUPPLIED BY CUMULUS. CUMULUS DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM YOUR USE OF REGISTERED SERVICES. The limitations on damages set forth in this Section 7 are inapplicable to the contractual indemnification obligations under Section 8.
7.2 No Failure of Essential Purpose. You acknowledge that Cumulus has entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties set forth in this Agreement and which form an essential basis of the bargain between the parties. You agree that these limitations and disclaimers will survive and apply even if found to have failed of their essential purpose.
8.1 You will defend, indemnify, and hold harmless Cumulus and its suppliers, and their respective officers, directors, employees, agents, contractors, affiliates, shareholders and permitted successors and assigns, from and against any third party claims arising out of or resulting from any of Your acts or omissions related to Your use of the Cumulus Web Services, including any claims related to (a) Your submission, posting, or transmission of any content or other information; (b) any violation by You of Section 4; or (c) the possession or use by Cumulus or its suppliers of any data or information that You have transmitted or provided in connection with its use of the Cumulus Web Services.
8.2 Cumulus, at its expense, will indemnify, defend and hold harmless You and your affiliates and any of Your or their officers, directors, employees, and agents (collectively, the “Indemnified Parties”) from all liabilities, costs, losses, damages and expenses (including reasonable attorneys’ and experts’ fees) in connection with any claim or action threatened or brought against the Indemnified Parties, arising out of or relating to any claim that the provision or utilization of any services or associated software or any portion thereof: constitutes an infringement, violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party.
9. TERM AND TERMINATION
9.1 Term. The initial term of this Agreement will commence on Your completion of the online subscription process, unless earlier terminated under Section 9.2 and will remain in effect untill terminated under Section 9.2, provided that you remain current in Your payments. Continued use of the Cumulus Web Services constitutes acceptance of this Agreement and any future versions.
9.2 Termination. Either party may terminate this Agreement with or without cause, upon thirty (30) days written notice. This Agreement and Your authorization to use the Cumulus Services shall automatically terminate ten (10) days after the due date of any payment due and not paid by You.
9.3 Effects of Termination.
(a) Termination of Authorization. Upon the termination of this Agreement, (a) the authorization and all license rights granted in this Agreement will immediately cease; and (b) You will promptly discontinue its use of the Cumulus Web Services or Cumulus Third Party Applications.
9.4 Survival. The provisions of Sections 1, 2.4, 2.5, 3.2, 3.3, 5, 6, 7, 8, 9.3, 9.4 and 10 will survive the expiration or termination of this Agreement.
10.1 Assignment. You may not assign this Agreement, nor assign any rights or delegate any obligations under this Agreement. Cumulus may assign this Agreement without Your written consent.
10.2 Force Majeure. Cumulus will not be liable for any failure or delay in its performance under this Agreement, or for damages or losses due to causes beyond its reasonable control, including acts of civil or military authority, fires, environmental conditions, riots, wars, sabotage, terrorism, strikes or other labor problems, failure of third party suppliers or vendors, failure of electronic or mechanical equipment or communications lines, telephone or other interconnect problems, unauthorized access, theft, operator error, telecommunications failure or governmental actions.
10.3 Governing Law. This Agreement will be governed by and construed in accordance by the laws of India.
10.4 Any disagreements between Cumulus and You because of this agreement will be placed before a qualified court in Chandigarh, India .
10.5 Injunctive Relief. You acknowledges that the actual or threatened breach by You of this Section 2 may cause immediate, irreparable harm for which recovery of money damages would be inadequate, and therefore, Cumulus will be entitled to seek timely injunctive relief to protect its rights, in addition to any and all other remedies available at law.
10.6 Notices. Except for notices pertaining to Section 10.7 below, any notices or communications under the Agreement shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed. If to Cumulus, such notices shall be addressed to firstname.lastname@example.org or to the address below, Attention: Legal Department. If to You, such notices shall be addressed to the electronic or mailing address specified during Your registration process, or such other address as either party may give the other by notice as provided in this Section. It is your the responsibility to provide accurate information to ensure that Cumulus is notified of any changes to Your address as specified in this Section.
Cumulus, Legal Department 243C Lohgarh Zirkpur Mohali Punjab India By email: email@example.com
10.7 Attorney's Fees. If any legal action is brought to construe or enforce any provision of this Agreement, the prevailing party will be entitled to receive its reasonable attorney's fees and court costs, in addition to any other relief that it may be entitled to receive.
10.8 Publicity. Neither party will make any public statement, press release or other announcement relating to this Agreement. This Section 10.8 will not in any way restrict either party from complying with any law, regulation or other governmental demand or request for information.
10.9 Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. The failure to enforce or waiver of any party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
10.10 Construction. The headings of sections in this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to."
10.12 Entire Agreement. Except as provided in Section 1.1, this Agreement sets forth the complete, exclusive and final statement of the agreement among the parties with respect to the subject matter hereof. This Agreement supersedes and replaces any and all prior agreements among the parties regarding such subject matter.
10.13 Cumulus may refer to You as a Cumulus customer and/or use Your logos within sales, marketing, investor and analyst presentations and materials (including but not limited to Cumulus ’s website).