Last modified: November 14, 2017
If you are accessing the Recordia® Services as a customer of a Recordia® reseller, the terms below do not apply to you, and your agreement with your reseller governs your use of the Recordia® Services.
This Recordia® License Agreement (the “Agreement”) is made and entered into by and between CWS (CloudWorldWide Services) and the entity agreeing to these terms (“Customer”). “CWS (CloudWorldWide Services)” means CWS (CloudWorldWide Services), with offices at Joaquin Turina 2, Pozuelo de Alarcón, Madird – 28224, Spain, if Customer’s billing address is in any country in the world.
This Agreement is effective as of the date Customer clicks to accept the Agreement (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept. This Agreement governs Customer’s access to and use of the Service. For an offline variant of this Agreement, you may contact CWS (CloudWorldWide Services) for more information.
1.1 Services Use. Subject to this Agreement, during the Term, Customer may: (a) use the Recordia® Services, (b) integrate the Services into any Application that has material value independent of the Services, and (c) use any Software provided by CWS (CloudWorldWide Services) as part of the Services. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.
1.2 Console. CWS (CloudWorldWide Services) will provide the Recordia® Services to Customer. As part of receiving the Services, Customer will have access to the User or Admin Console, through which Customer may use or administer the Services.
1.3 Facilities. All facilities used to store and process an Application and Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where CWS (CloudWorldWide Services) processes and stores its own information of a similar type. CWS (CloudWorldWide Services) has implemented at least industry standard systems and procedures to (i) ensure the security and confidentiality of an Application and Customer Data, (ii) protect against anticipated threats or hazards to the security or integrity of an Application and Customer Data, and (iii) protect against unauthorized access to or use of an Application and Customer Data.
1.4 Data Location. Customer may select where certain Recordia® Customer Data will be stored (“Data Location Selection”), and CWS (CloudWorldWide Services) will store it there in accordance with the Service Specific Terms. If a Data Location Selection is not covered by the Service Specific Terms (or a Data Location Selection is not made by Customer with respect to any Customer Data), CWS (CloudWorldWide Services) may process and store the Customer Data anywhere CWS (CloudWorldWide Services) or its agents maintain facilities. By using the Services, Customer consents to this processing and storage of Customer Data. Under this Agreement, CWS (CloudWorldWide Services) is merely a data processor.
1.5 Accounts. Customer must have an Account and a Token (if applicable) to use the Services, and is responsible for the information it provides to create the Account, the security of the Token and its passwords for the Account, and for any use of its Account and the Token. If Customer becomes aware of any unauthorized use of its password, its Account or the Token, Customer will notify CWS (CloudWorldWide Services) as promptly as possible. CWS (CloudWorldWide Services) has no obligation to provide Customer multiple Tokens or Accounts.
1.6 New Applications and Services. CWS (CloudWorldWide Services) may: (i) make new applications, tools, features or functionality available from time to time through the Services and (ii) add new services to the “Services” definition from time to time (by adding them at the URL set forth under that definition), the use of which may be contingent upon Customer’s agreement to additional terms.
(i) is commercially reasonable;
(ii) does not result in a degradation of the overall security of the Services;
(iii) does not expand the scope of or remove any restrictions on CWS (CloudWorldWide Services)’s processing of Customer Personal Data, as described in Section 5.2 (Scope of Processing) of the Data Processing and Security Terms; and
(iv) does not otherwise have a material adverse impact on Customer’s rights under the Data Processing and Security Terms.
If CWS (CloudWorldWide Services) makes a material change to the Data Processing and Security Terms in accordance with this Section, CWS (CloudWorldWide Services) will post the modification to the URL containing those terms.
1.8 Service Specific Terms and Data Processing and Security Terms. The Service Specific Terms and Data Processing and Security Terms are incorporated by this reference into the Agreement.
2.1 Free Quota. Certain Services are provided to Customer without charge up to the Fee Threshold, as applicable.
2.2 Online Billing. At the end of the applicable Fee Accrual Period, CWS (CloudWorldWide Services) will issue an electronic bill to Customer for all charges accrued above the Fee Threshold based on (i) Customer’s use of the Services during the previous Fee Accrual Period (including, if any, the relevant Fee for TSS set forth in the Fees definition below); (ii) any Reserved Units selected; (iii) any Committed Purchases selected; and/or (iv) any Package Purchases selected. For use above the Fee Threshold, Customer will be responsible for all Fees up to the amount set in the Account and will pay all Fees in the currency set forth in the invoice. If Customer elects to pay by credit card, debit card, or other non-invoiced form of payment, CWS (CloudWorldWide Services) will charge (and Customer will pay) all Fees immediately at the end of the Fee Accrual Period. If Customer elects to pay by invoice (and CWS (CloudWorldWide Services) agrees), all Fees are due as set forth in the invoice. Customer’s obligation to pay all Fees is non-cancellable. CWS (CloudWorldWide Services)’s measurement of Customer’s use of the Services is final. CWS (CloudWorldWide Services) has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by CWS (CloudWorldWide Services).
2.3 Taxes. (a) Customer is responsible for any Taxes, and Customer will pay CWS (CloudWorldWide Services) for the Services without any reduction for Taxes. If CWS (CloudWorldWide Services) is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides CWS (CloudWorldWide Services) with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to CWS (CloudWorldWide Services), Customer must provide CWS (CloudWorldWide Services) with an official tax receipt or other appropriate documentation to support such withholding. If under the applicable tax legislation the Services are subject to local VAT and the Customer is required to make a withholding of local VAT from amounts payable to CWS (CloudWorldWide Services), the value of Services calculated in accordance with the above procedure will be increased (grossed up) by the Customer for the respective amount of local VAT and the grossed up amount will be regarded as a VAT inclusive price. Local VAT amount withheld from the VAT-inclusive price will be remitted to the applicable local tax entity by the Customer and Customer will ensure that CWS (CloudWorldWide Services) will receives payment for its services for the net amount as would otherwise be due (the VAT inclusive price less the local VAT withheld and remitted to applicable tax authority).
(b) If required under applicable law, Customer will provide CWS (CloudWorldWide Services) with applicable tax identification information that CWS (CloudWorldWide Services) may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse CWS (CloudWorldWide Services) for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.
2.4 Invoice Disputes & Refunds. Any invoice disputes must be submitted prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to CWS (CloudWorldWide Services), CWS (CloudWorldWide Services) will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, CWS (CloudWorldWide Services) will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of CWS (CloudWorldWide Services) and will only be in the form of credit for the Services. Nothing in this Agreement obligates CWS (CloudWorldWide Services) to extend credit to any party.
2.5 Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by CWS (CloudWorldWide Services) in collecting such delinquent amounts. If Customer is late on payment for the Services, CWS (CloudWorldWide Services) may suspend the Services or terminate the Agreement for breach pursuant to Section 9.2.
2.6 No Purchase Order Number Required. For clarity, Customer is obligated to pay all applicable Fees without any requirement for CWS (CloudWorldWide Services) to provide a purchase order number on CWS (CloudWorldWide Services)’s invoice (or otherwise).
3.1 Compliance. Customer is solely responsible for its Applications, Projects, and Customer Data and for making sure its Applications, Projects, and Customer Data comply with the AUP. CWS (CloudWorldWide Services) reserves the right to review the Application, Project, and Customer Data for compliance with the AUP. Customer is responsible for ensuring all Customer End Users comply with Customer’s obligations under the AUP, the Service Specific Terms, and the restrictions in Sections 3.3 and 3.5 below.
3.2 Privacy. Customer will obtain and maintain any required consents necessary to permit the processing of Customer Data under this Agreement.
3.3 Restrictions. Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (subject to Section 3.4 below and except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for High Risk Activities; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (d) create multiple Applications, Accounts, or Projects to simulate or act as a single Application, Account, or Project (respectively) or otherwise access the Services in a manner intended to avoid incurring Fees; (e) unless otherwise set forth in the Service Specific Terms, use the Services to operate or enable any telecommunications service or in connection with any Application that allows Customer End Users to place calls or to receive calls from any public switched telephone network; or (f) process or store any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the Department of State. Unless otherwise specified in writing by CWS (CloudWorldWide Services), CWS (CloudWorldWide Services) does not intend uses of the Services to create obligations under HIPAA, and makes no representations that the Services satisfy HIPAA requirements. If Customer is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Customer will not use the Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Customer has received prior written consent to such use from CWS (CloudWorldWide Services).
3.4 Third Party Components. Third party components (which may include open source software) of the Services may be subject to separate license agreements. To the limited extent a third party license expressly supersedes this Agreement, that third party license governs Customer’s use of that third party component.
3.5 Documentation. CWS (CloudWorldWide Services) may provide Documentation for Customer’s use of the Recordia® Services. The Documentation may specify restrictions (e.g. attribution or HTML restrictions) on how the Applications may be built or the Services may be used and Customer will comply with any such restrictions specified.
3.6 Copyright Policy. CWS (CloudWorldWide Services) provides information to help copyright holders manage their intellectual property online, but CWS (CloudWorldWide Services) cannot determine whether something is being used legally or not without their input. CWS (CloudWorldWide Services) responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to applicable copyright laws including in particular the process set out in the U.S. Digital Millennium Copyright Act. If Customer thinks somebody is violating Customer’s or Customer End Users’ copyrights and wants to notify CWS (CloudWorldWide Services), Customer can find information about submitting notices, and CWS (CloudWorldWide Services)’s policy about responding to notices at DMCA Act of 1998.
4.1 Suspension/Removals. If Customer becomes aware that any Application, Project, or Customer Data violates the AUP, Customer will immediately suspend the Application or Project and/or remove the relevant Customer Data (as applicable). If Customer fails to suspend or remove as noted in the prior sentence, CWS (CloudWorldWide Services) may specifically request that Customer do so. If Customer fails to comply with CWS (CloudWorldWide Services)’s request to do so within twenty-four hours, then CWS (CloudWorldWide Services) may disable the Project, Data or Application, and/or disable the Account (as may be applicable) until such violation is corrected.
4.2 Emergency Security Issues. Despite the foregoing, if there is an Emergency Security Issue, then CWS (CloudWorldWide Services) may automatically suspend the offending Application, Project, and/or Account. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or resolve the Emergency Security Issue. If CWS (CloudWorldWide Services) suspends an Application, Project, or the Account, for any reason, without prior notice to Customer, at Customer’s request, CWS (CloudWorldWide Services) will provide Customer the reason for the suspension as soon as is reasonably possible.
5.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and the Application or Project (if applicable), and CWS (CloudWorldWide Services) owns all Intellectual Property Rights in the Services and Software.
5.2 Use of Customer Data. CWS (CloudWorldWide Services) will not access or use Customer Data, except as necessary to provide the Services to Customer.
5.3 Customer Feedback. If Customer provides CWS (CloudWorldWide Services) Feedback about the Services, then CWS (CloudWorldWide Services) may use that information without obligation to Customer, and Customer hereby irrevocably assigns to CWS (CloudWorldWide Services) all right, title, and interest in that Feedback.
6.1 By Customer. Customer is responsible for technical support of its Applications and Projects.
6.2 By CWS (CloudWorldWide Services). Subject to payment of applicable support Fees, CWS (CloudWorldWide Services) will provide TSS to Customer during the Term in accordance with the TSS Guidelines. Certain TSS levels include a minimum recurring Fee as described in the “Fees” definition below. If Customer downgrades its TSS level during any calendar month, CWS (CloudWorldWide Services) may continue to provide TSS at the same level and TSS Fees before the downgrade for the remainder of that month.
7.1 Discontinuance of Services. Subject to Section 7.2, CWS (CloudWorldWide Services) may discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
7.2 Deprecation Policy. CWS (CloudWorldWide Services) will announce if it intends to discontinue or make backwards incompatible changes to the Services specified at the URL in the next sentence. CWS (CloudWorldWide Services) will use commercially reasonable efforts to continue to operate those Services versions and features without these changes for at least one year after that announcement, unless (as CWS (CloudWorldWide Services) determines in its reasonable good faith judgment):
(i) required by law or third party relationship (including if there is a change in applicable law or relationship), or
(ii) doing so could create a security risk or substantial economic or material technical burden.
The above policy is the “Deprecation Policy.”
8.1 Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
8.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and Customer End Users’ use of the Services.
9.1 Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 9 of this Agreement.
9.2 Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, CWS (CloudWorldWide Services) may terminate any, all, or any portion of the Services or Projects, if Customer meets any of the conditions in Section 9.2(i), (ii), and/or (iii).
9.3 Termination for Inactivity.
CWS (CloudWorldWide Services) reserves the right to terminate the Services for inactivity, if, for a period exceeding 180 days, Customer: (a) has failed to access the User/Admin Console; (b) a Project has no active Items or storage resources or an Application has not served any requests; and (c) no electronic bills are being generated.
CWS (CloudWorldWide Services) reserves the right to terminate the provision of the Service(s) to a Project upon 30 days advance notice if, for a period of 60 days (i) Customer has not accessed the User/Admin Console or the Project has had no network activity; and (ii) such Project has not incurred any Fees for such Service(s).
9.4 Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. CWS (CloudWorldWide Services) may terminate this Agreement for its convenience at any time without liability to Customer.
9.5 Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees owed by Customer to CWS (CloudWorldWide Services) are immediately due upon receipt of the final electronic bill; (iii) Customer will delete the Items, any Integration, Project Configuration, and any Customer Data; and (iv) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
13.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR CWS (CLOUDWORLDWIDE SERVICES)’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
13.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR CWS (CLOUDWORLDWIDE SERVICES)’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO CWS (CLOUDWORLDWIDE SERVICES) UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
13.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, indemnification obligations, or Customer’s payment obligations.
14.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify CWS (CloudWorldWide Services) and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Customer Data or Customer Brand Features; or (ii) Customer’s, or Customer End Users’, use of the Services in violation of the AUP.
14.2 By CWS (CloudWorldWide Services). CWS (CloudWorldWide Services) will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) CWS (CloudWorldWide Services)’s technology used to provide the Services (excluding any open source software) or (b) any CWS (CloudWorldWide Services) Brand Feature infringes or misappropriates the third party’s patent, copyright, trade secret, or trademark.
14.3 Exclusions. This Section 14 will not apply to the extent the underlying Allegation arises from:
14.4 Conditions. Sections 14.1 and 14.2 will apply only to the extent:
14.6 Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 14 states the parties’ only rights and obligations under this Agreement for any third party’s Intellectual Property Rights Allegations and Third-Party Legal Proceedings.
16.1 Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. The email address for notices being sent to CWS (CloudWorldWide Services)’s Legal Department is legal-notices@cloudworldwideservice).com. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
16.2 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
16.3 Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
16.4 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
16.5 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
16.6 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
16.7 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
16.8 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
16.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
16.10 U.S. Governing Law.
16.11 Amendments. Except as set forth in Section 1.7(b) or (c), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
16.12 Survival. The following Sections will survive expiration or termination of this Agreement: 5, 8, 9.5, 13, 14, and 16.
16.13 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, CWS (CloudWorldWide Services) may provide an updated URL in place of any URL in this Agreement.
16.14 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL.