Cloud Service Terms of Service
This Cloud-Service (“CS”) Terms of Service (the “Agreement”) govern the access to and use of the CS by each person or entity accessing or using the CS (“Customer”), and the provision of the CS by Deltapath, Inc.
- For purposes of this Agreement:
- “Authorized User” means an employee of Customer who has been issued a User ID in accordance with Section 3.2(a).
- “Customer Data” means all electronic data, content or other information that is stored or transmitted by Customer or conferencing participants through the CS or collected and processed by or on behalf of Customer or conferencing participants through the CS, including without limitation audio files or other sounds, videos, photographs or other images, data files, written text, software, and music that Customer or any conferencing participant submits, displays, or posts on or through a CS.
- “Documentation” means the most current version of the Deltapath published user manuals (whether in print or electronic form) that relate to the use of the CS that have been provided (whether directly or through Internet availability) to Customer.
- “Intellectual Property Rights” means any and all worldwide rights in and to any patents, patent applications, copyrights, data rights, trademarks, trade names, service marks, trade secrets, or other similar right.
- “Order” means the Customer order under which Customer purchased the CS from Deltapath.
- “Service Description” means the formal description of the CS service sold by Deltapath to Customer and provided by Deltapath.
- “Software” means the software used by Deltapath to provide the CS.
- “CS” means the Cloud-Service, whether accessed by Customer via video or audio endpoints, provided by Deltapath, described in the applicable Service Description, and purchased by Customer from Deltapath, including hosting of the Software and Customer Data in connection therewith.
- “Commitment Period” means the minimum number of months Customer is legally binded to subscribe service and pay for its monthly recurring fee.
- Subject to the terms and conditions of this Agreement, Deltapath shall make the CS available to Customer through its Authorized Users.
- ACCESS TO AND USE OF THE CS.
- Access to the CS.
- Customer Access to the CS. Customer, through its Authorized Users, may access the CS, solely for Customer’s internal business purposes in accordance with Customer’s Order, only as permitted by this Agreement. Customer acknowledges and agrees that any breach of the terms and conditions of this Agreement by an Authorized User or any other employee, agent, contractor, or conferencing participant of Customer shall be deemed a breach of this Agreement by Customer. Customer shall make no attempt to, and shall not permit any Authorized User or conferencing participant to, make any attempt to: (i) download, reproduce, copy, alter, adapt, modify, improve, translate, create derivative works from, reverse engineer, disassemble, decompile or otherwise attempt to reveal the source code, trade secrets or know how underlying the Software; (ii) interfere in any manner with the hosting of the CS; (iii) use the CS to benchmark or otherwise obtain or develop performance metrics for the CS or Software; or (iv) sublicense, resell, sublease or transfer any of Customer’s rights under this Agreement or otherwise use the CS or Software for the benefit of a third party; or (v) use the CS to develop a product that is similar to the CS or Software or to operate a service bureau.
- Necessary Equipment. Customer shall be solely responsible, at its own expense, for acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for it to connect to, access, and use the CS.
- Use of the CS.
- If applicable, Deltapath will assign each Authorized User a unique Authorized User identification name and password for access to and use of the CS (“User ID”). Customer shall be responsible for ensuring the security and confidentiality of all User IDs. Customer shall be fully responsible for all liabilities incurred through any use of any User ID (whether authorized or otherwise), and any transactions completed under a User ID will be deemed to have been authorized by Customer. In no event will Deltapath be responsible or liable for the foregoing obligations or the failure by Customer to fulfill such obligations.
- Customer Data. Customer grants Deltapath an irrevocable, worldwide license to and authorizes Deltapath to use Customer Data as necessary for Deltapath to provide the CS and in accordance with the Privacy, Data Collection and Use provisions set forth below. Customer covenants, represents and warrants that it has any and all authorizations as may be necessary or appropriate for Deltapath’s use as permitted by this Agreement. Deltapath’s obligation to maintain any Customer Data obtained in the course of performance of the CS shall not extend beyond the performance of the applicable CS. Customer authorizes Deltapath to have access to and to use Customer Data as necessary for Deltapath to provide the CS and any related services for Deltapath to fulfill its obligations to Customer in relation to the provision of the CS to Customer. Deltapath will protect the confidentiality of Customer Data with the same care that Deltapath uses for its own similar information.
- Certain Obligations and Restrictions. Customer (i) is responsible for ensuring that each Authorized User and conferencing participant is bound by the terms and conditions of this Agreement and for Authorized Users’ and conferencing participants’ compliance with, and any breach of, the terms and conditions of this Agreement, (ii) is responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, (iii) will use reasonable efforts to prevent unauthorized use of the CS or their related systems or networks, and will notify Deltapath promptly of any unauthorized use, and (iv) will use the CS only in accordance with its Order, the Documentation, and applicable laws and government regulations. Customer will not (A) make the CS available to anyone other than Authorized Users and their conferencing participants, (B) sell, resell, rent or lease any CS, (C) interfere with or disrupt the integrity or performance of the CS or third-party data contained in the CS, (D) attempt to gain unauthorized access to the CS or its related Software, systems or networks, or (E) exceed any established usage limits for the CS.
- Acceptable Use Policy. Customer shall at all times ensure that its Authorized Users and conferencing participants adhere to any use policy located at the Customer, Authorized User, and/or conferencing participant CS portals. Without limiting the foregoing, Customer shall not, and shall not permit any Authorized User or conferencing participant to, store, transmit or otherwise provide Customer Data or other information or content that: (i) infringes or violates any intellectual property rights, publicity/privacy rights, or other third party rights; violates any law or regulation (including without limitation export control laws and regulations and obtaining consent to recordation of communications); or is defamatory, tortious, abusive, threatening, obscene, harmful to minors, obscene or child pornographic; (ii) contains any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents, programs or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or (iii) is materially false or misleading.
- Remedial Action; Suspension of Service. Deltapath shall be entitled, in its discretion, to take remedial action, including without limitation to suspend or terminate Customer’s access to and use of the CS if (i) Deltapath does not receive all fees related to Customer’s use of the CS, (ii) Customer or any conferencing participant fails to comply with any term, condition or restriction of this Agreement, or (iii) Deltapath determines that Customer, an Authorized User, or a conferencing participant has used or is using the CS to transmit or store, or otherwise with respect to, Customer Data or other content or information that Deltapath determines to be objectionable, including without limitation in violation of Section 3.2(c) or Section 3.2(d). Deltapath, however, is under no obligation to review Customer Data or other content or information for accuracy, potential liability, or compliance with these terms and conditions.
- PROPRIETARY RIGHTS.
- Subject to the rights granted herein, Customer retains all of its worldwide right, title and interest in and to the Customer Data.
- Subject to the access rights set forth herein, Deltapath and its licensors retain all worldwide right, title and interest in and to the CS and all software, materials, and Deltapath confidential information made available to Customer via the Internet or otherwise, in connection with the CS, and all Intellectual Property Rights with respect thereto, including without limitation, the Software, Documentation, and any and all improvements, derivative works, updates, and modifications thereto, whether made in conjunction with this Agreement or otherwise. There are no implied licenses or rights granted by Deltapath under this Agreement; any rights not expressly granted by Deltapath hereunder are reserved.
- Customer grants to Deltapath and its Affiliates a royalty-free, fully paid, worldwide, irrevocable, perpetual license to use and incorporate into the CS any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the CS or the operation thereof.
- The CS, Software, Documentation, and all other data and materials made available via the Internet or otherwise provided to Customer in connection with this Agreement by Deltapath are provided “AS IS” and “AS AVAILABLE,” without representations or warranties of any kind. DELTAPATH AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, BY OPERATION OF LAW, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. DELTAPATH DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT DELTAPATH MAY NOT AS A MATTER OF LAW DISCLAIM ANY WARRANTY, THE PARTIES AGREE THAT THE SCOPE AND DURATION OF ANY SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW. Neither Deltapath, nor its third-party service or software providers, shall have any liability whatsoever for the accuracy, completeness, timeliness, security, or integrity of the Customer Data, or for any decision made or action taken by Customer or any conferencing participant in reliance upon any Customer Data. The parties agree and acknowledge that Deltapath shall in no event be held responsible for any problems with the CS attributable to the public Internet infrastructure or Customer’s ability to be connected to the Internet.
- LIMITATION OF LIABILITY. IN NO EVENT WILL DELTAPATH (OR ITS SUPPLIERS) BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES OR FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BUT NOT LIMITED TO, DAMAGES THAT RESULT FROM INTERRUPTED COMMUNICATIONS, LOST DATA, OR LOST PROFITS, OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE CS OR RELATED PRODUCTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. Deltapath’s liability arising out of or in connection with this Agreement shall not exceed the amounts actually received by Deltapath for the CS in the three (3) month period immediately preceding the date the cause of action arose (“Cap”). This Cap is an aggregate for all causes of action and shall not be increased by multiple causes of action subject to the same, or overlapping, three (3) month periods. In addition, Deltapath’s aggregate liability arising out of or in connection with this Agreement, for all causes and claims, shall not exceed the amounts received by Deltapath for Customer’s use of the CS.
- Customer shall indemnify, defend and hold Deltapath (and its officers, directors, employees, agents and representatives) harmless from all claims, suits, losses, expenses, judgments and liabilities (including Deltapath’s reasonable attorney’s fees) to the extent arising out of (i) breach of this Agreement, including without limitations, the Acceptable Use Policy and Privacy, Data Collection and Use provisions, by Customer or any failure of any Authorized User or conferencing participant to comply with the terms and conditions of this Agreement, including without limitation use of the CS or any Software other than as permitted by this Agreement or (ii) Customer Data.
- Customer may contact Deltapath in accordance with Deltapath’s 8 x 5 support hours to obtain support on the CS platform. Deltapath is not responsible in providing Customer support services related to Customer’s own IT infrastucture including but not limited to, Internet connection, network setup, firewall provisioning, and desktop / mobile device / video endpoint configuration.
- If Customer terminates the Contract by giving not less than 30 days’ prior notice or before the end of the Commitment Period, the following shall apply:
- the Customer shall pay an early termination charge (“Early Termination Charge”) to Deltapath (as calculated by multiplying the monthly rental for the Service by the remaining months of the Commitment Period, whereby for a period of less than one (1) month shall be regarded as one (1) month for the purpose of such calculation);
- all the outstanding discount, rebate, waiver and free offerings will be forfeited (if applicable) from the date of termination.
- GENERAL PROVISIONS.
- Entire Agreement; Modification; Waiver. This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. Deltapath reserves the right, in its sole discretion, to modify this Agreement at any time without further notice. It is Customer’s responsibility to periodically review the current Terms of Service as Customer’s continued use of the CS after any such changes constitutes Customer’s acceptance of the new Terms of Service. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Deltapath reserves the right, in its sole discretion, to modify or discontinue, temporarily or permanently, the CS (or any part thereof) at any time without further notice. Customer agrees that Deltapath will not be liable to you or to a third party for any modification, suspension or discontinuance of the CS.
- Either party may assign or transfer this Agreement solely in connection with a transfer of all or substantially all of that party’s business assets, whether by merger, sale of assets, sale of stock or otherwise, provided that the acquiring party agrees in writing to be bound by all the terms hereof. Any other attempted assignment or transfer by Customer in violation of the foregoing will be void.
- Compliance with Laws. Customer represents and warrants that it will comply with all applicable State of California, USA (including export regulations), and communications common carrier tariffs, and use the CS solely for lawful purposes. Deltapath reserves the right to take all actions, including termination of the CS, which it believes necessary to comply with applicable laws and regulations.
- Independent Contractors. The relationship established by this Agreement is that of independent contractors. Customer shall not incur any obligation or commitment on behalf of Deltapath unless specifically approved in writing, in advance by an authorized Deltapath executive.
- Force Majeure. If the performance of this Agreement, or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, including, but not limited to, acts of God, acts of civil or military authority, third party illegal activity, failure or interruption of utilities, fires, floods, earthquakes, riots, wars, sabotage, computer hacking or computer crime, or governmental actions, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference.
- Governing Law; Venue. This Agreement will be governed by the laws of State of California, United States of America. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a court of California, and in no other jurisdiction. The parties hereby consent to personal jurisdiction and venue in, and agree to service of process issued or authorized by, such court. This Agreement shall be written and construed in the English language. Notwithstanding the foregoing, either party may bring action for injunctive relief in any jurisdiction pending final disposition of the dispute.
- Except as otherwise specified, all notices shall be in writing and may be delivered by facsimile, United States Postal Service, or overnight delivery service, to the address indicated on the first page of this Agreement or to such other address as the parties shall specify by written notice. Any such notices to Deltapath shall be sent to the attention of the Chief Financial Officer, with a copy sent to the General Counsel.
- If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.