Nuvola Terms And Conditions
These Terms and Conditions (“Terms”) are an integral part of the Nuvola Service Agreement (the “Agreement”) entered into by and between Nuvola, Inc. (“Nuvola”) a Delaware corporation, and the Customer which has signed a Nuvola Service Agreement with Nuvola (“Customer”). Nuvola and Customer are each a “Party” to the Agreement. Capitalized terms used, but not defined, in these Terms shall have the meanings assigned to such terms in the Agreement. In the event of a conflict between these Terms and the Agreement, the Agreement shall govern, only to the extent of such conflict.
The Parties agree as follows:
1. Additional Billing and Payment Terms
Customers paying via wire transfer may be charged a $15.00 processing fee for each wire transfer at Nuvola’s option. If payment by credit card is available, Customers paying with a credit card will be charged a $15.00 service charge on disputed credit cards and credit card chargebacks.
Unless otherwise specified in the Agreement, the billing for the subscription term will commence upon the licensee’s first access to Nuvola Products.
Unless otherwise provided in the Agreement, the License fee may be increased by up to 5% per annum after the first anniversary of the Effective Date
2. Representations and Warranties
Each Party represents and warrants that it has the right and authority to enter into the Agreement, and that by entering into the Agreement, it will not violate, conflict with, or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien, or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.
b. COMPLIANCE WITH LAWS.
Each Party represents and warrants that no consent, approval, authorization, designation, declaration, or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of the Agreement. Each Party shall, at its own expense, comply with all laws, regulations, and other legal requirements that apply to it and its performance under the Agreement.
c. ACCEPTABLE USE.
Customer is solely responsible for the content of any postings, data, or transmissions using the Nuvola Products and Services by Customer or by any person or entity on Customer’s behalf or any person or entity Customer otherwise permits to access the Nuvola Products and Services. Customer agrees that it will: (i) not use the Nuvola Products and Services in a manner that: (A) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (B) will disrupt a third party’s similar use of the Nuvola Products and Services; (ii) not violate or tamper with the security of any Nuvola computer equipment or program. Customer is not permitted to resell the Nuvola Products and Services. If Nuvola has reasonable grounds to believe that Customer is utilizing the Nuvola Products or Services for any such illegal, disruptive, or prohibited purpose, Nuvola may suspend access to the Nuvola Products and Services immediately with or without notice to Customer. Nuvola may terminate the Agreement as contemplated in Section 9 if Customer fails to adhere to the foregoing acceptable use standards.
THE WARRANTIES SET FORTH IN THIS SECTION 2 ARE THE ONLY WARRANTIES MADE BY NUVOLA. NUVOLA MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE NUVOLA PRODUCTS AND SERVICES, OR ANY RELATED SERVICE OR SOFTWARE. NUVOLA HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN BY NUVOLA, ITS EMPLOYEES, LICENSORS, OR THE LIKE WILL CREATE A WARRANTY.
3. Limitation of Liability; Special Indemnity
a. UNDER NO CIRCUMSTANCES WILL NUVOLA OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE NUVOLA PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO NUVOLA’S RECORDS, PROGRAMS, OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NUVOLA’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS RELATING TO THIS AGREEMENT, OR OTHERWISE RELATING TO THE NUVOLA PRODUCTS AND SERVICES, EXCEED THE AMOUNT PAID TO NUVOLA BY CUSTOMER UNDER THE AGREEMENT DURING THE SIX MONTHS PRECEDING THE EVENT GIVING RISE TO ANY SUCH CLAIM.
b. SPECIAL INDEMNITY. Customer shall notify Nuvola promptly in writing of any action brought against Customer based on an allegation that Customer’s use of the Nuvola Products and Services infringes any patent, trademark, copyright, or infringes any right of a third party, or constitutes misuse or misappropriation of a trade secret (“Infringement”). Nuvola will defend, indemnify and hold Customer harmless from any such action alleging Infringement at Nuvola’s sole cost and expense, provided that Nuvola shall have the sole control of the defense of any such action, all negotiations and/or its settlement, and Customer reasonably cooperates with Nuvola in such defense. In the event that a final injunction is obtained against Customer’s use of the Nuvola Products or Services by reason of an Infringement or Customer is otherwise prohibited from using same, Nuvola shall to the extent possible and at its expense, either (i) procure for Customer the right to continue to use the Nuvola Products or Services that are infringing, or (ii) replace or modify the Nuvola Products or Services to make its use noninfringing while being capable of performing the same function. If neither option is available to Nuvola, then Customer, at Customer’s option, may terminate the Agreement without penalty or further payment other than payment of fees for use of the Services prior to such termination.
4. Confidential Information
For purposes of the Agreement “Confidential Information” shall mean any and all non-public marketing plans, product roadmap information, financial information, services and support, procedures, and all other business information including, but not limited to software, strategies, plans, documents, techniques, drawings, designs, specifications, technical or know-how data, research and development, ideas, inventions, Trade Secrets and patent disclosures, that may be disclosed between the Parties, whether in written, oral, electronic, website-based, or other form, provided that (i) it is marked or accompanied by documents clearly and conspicuously designating it as “CONFIDENTIAL”, “Trade Secret,” or the equivalent; or (ii) it is identified by the disclosing Party as confidential before, during or promptly after the presentation or communication. “Trade Secret” means information identified as such, used in the disclosing Party’s business and is a formula, pattern, compilation, program, device, method, technique, or process that gives the owner a competitive advantage over persons who do not know or use it, and is the subject of reasonable efforts to maintain its secrecy. Confidential Information excludes information that: (iii) was or becomes publicly known through no fault of the receiving Party, (iv) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (v) is independently developed by the receiving Party without the participation of individuals who have had access to the Confidential Information; (vi) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party, and (vii) the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will (A) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (B) cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
During this the term of the Agreement and for a period of 2 years thereafter, each Party agrees to maintain all Confidential Information of the other Party in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information to perform its obligations or enforce its rights or as otherwise permitted under the Agreement. Each Party agrees to only disclose the other Party’s Confidential Information to its employees: (i) with a need to know to further permitted uses of such information; and (ii) who are informed of the confidential nature of such Confidential Information and are bound to protect such information.
c. TERMS OF AGREEMENT CONFIDENTIAL.
Each of the Parties agrees not to disclose to any third party the terms of the Agreement, including pricing, without the prior written consent of the other Party hereto, except to advisors, investors, and others on a need-to-know basis provided that such third parties agree to restrictions protecting the confidentiality of the Confidential Information to the same extent as provided in these Terms.
d. INJUNCTIVE RELIEF.
In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching Party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
5. Customer Responsibility
a. Customer shall defend, indemnify and hold harmless Nuvola and its affiliates from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon, arising from, or relating to Customer’s violation of the acceptable use provisions described in section 2(c) above, or any other claim relating to any materials provided or communicated by Customer using the Nuvola Products and Services.
b. Customer shall implement security procedures reasonably necessary to limit access to the Nuvola Products and Services to Customer’s authorized users, and shall maintain a procedure for reconstruction of lost or altered files, data or programs.
c. Customer is responsible for establishing designated points of contact to interface with Nuvola.
7. Nuvola Intellectual Property
All right, title and interest in and to the Nuvola Products and Services, and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating thereto, belong exclusively to Nuvola.
8. Back-up of Data
Upon the expiration or termination of the Agreement, Nuvola will deliver Customer Data in an encrypted format, subject to Customer’s payment of Nuvola’s then-prevailing rates for additional labor and services.
a. If a Party fails to perform or observe any material term or condition of this Agreement and the failure continues uncured for thirty (30) days after receipt of written notice of such breach, the other Party may terminate the Agreement; provided, however, that where the breach is the failure of payment by Customer of any charge when due, Nuvola, may, at its option, terminate or suspend access to the Nuvola Products and Services if Customer does not cure said breach within thirty (30) days following notice to Customer of the delinquency.
b. This Agreement may be terminated immediately upon written notice by either Party if the other Party becomes insolvent or involved in a liquidation or termination of its business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors.
c. Customer shall remain responsible for payment of all unpaid fees and charges incurred as of the effective date of termination.
10. General Provisions & Force Majeure
(a) The Agreement, including any amendments and attachments hereto that are incorporated herein, constitute the entire agreement between the Parties and shall be binding on the Parties when accepted by Customer. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). No provision of any purchase order or other document issued by Customer, which purports to alter, vary, modify or add to the provisions of this Agreement, shall be binding upon Nuvola or effective for any purpose, unless accepted by Nuvola in writing.
It is further expressly understood and agreed that no usage of trade or other regular practice or method of dealing either within the computer software industry, Nuvola’s industry or between the Parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of the Agreement or any part thereof.
(b) Nothing contained in the Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the Parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.
(c) The Nuvola Products and Services shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction.
(d) This Agreement may not be assigned, sublicensed or transferred, in whole or in part, by Customer without the prior written consent of Nuvola. Any attempted assignment, sublicensing or transfer shall be void. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in anyway be affected or impaired thereby.
(e) No delay or failure of Nuvola or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by Nuvola or Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach.
(f) In the event that either Party is unable to perform any of its obligations under this Agreement because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, pandemic, embargo, labor disputes, acts of civil or military authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”) the Party who has been so affected shall (i) be excused from performing its obligations (other than payment obligations) but only to the extent impaired by such Force Majeure Event and (ii) immediately give notice to the other Party and shall do everything possible to mitigate the impact of such Force Majeure Event and resume performance. If the period of nonperformance exceeds 30 days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice immediately terminate this Agreement as provided in Section 9.
(g) On Nuvola’s request no more frequently than once per calendar year, Customer shall furnish Nuvola with a signed certification (i) verifying that the Nuvola Products and Services is being used pursuant to the terms of the Agreement and (ii) listing the locations where the Nuvola Products and Services is being used.
(h) The Agreement shall be governed by and construed under the laws of the State of Texas without regard to conflicts of law principles that would result in the application of the laws of any other jurisdiction.