1. Master Subscription Agreement
These Terms do not govern the use of the hosted application and infrastructure monitoring service as well as other services (the “Service”) operated by Kloudgen. If you are accessing or using Service, then you are subject to written contract as may be separately agreed and signed between you and Kloudgen.
2. Kloudgen Content
The Site contains HTML, applications, messages, text, files, images, photos, video, sounds, profiles, works of authorship and other content (collectively, “Content”) of Kloudgen or its licensors (“Kloudgen Content”). The Site (including the Kloudgen Content) is protected by copyright, trademark, trade secret and other laws; and as between you and Kloudgen, Kloudgen owns and retains all rights in the Site and the Kloudgen Content. Kloudgen hereby grants to you a limited, revocable, non-sublicensable license to access, display and perform the Kloudgen Content (excluding any computer code) solely for your personal, non-commercial use and solely as necessary to access and use the Site. Except as expressly permitted by Kloudgen in these Terms or on the Site, you may not copy, download, stream, capture, reproduce, duplicate, archive, upload, modify, translate, create derivative works based upon, publish, broadcast, transmit, retransmit, distribute, perform, display, sell or otherwise use or transfer any Kloudgen Content. You may not, either directly or through the use of any device, software, online resource or other means, remove, alter, bypass, avoid, interfere with or circumvent any copyright, trademark or other proprietary notice on the Kloudgen Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Kloudgen Content.
The trademarks, logos and service marks (“Marks”). displayed on the Site are the property of Kloudgen or other third-parties. You are not permitted to use these Marks without the prior written consent of Kloudgen or such third-party.
4. Third-Party Services
The Site may make available, or third parties may provide, links to other websites, applications, resources, advertisements, Content or other products or services created, hosted or made available by third parties (“Third-Party Services”), and such third parties may use other third parties to provide portions of the Third-Party Service to you, such as technology, development or payment services. When you access or use a Third-Party Service, you are interacting with the applicable third party, not with Kloudgen, and you do so at your own risk. Kloudgen is not responsible for, and makes no warranties, express or implied, as to, the Third-Party Services or the providers of such Third-Party Services (including without limitation the accuracy or completeness of the information provided by such Third-Party Service or the privacy practices of any third party). Inclusion of any Third-Party Service or a link thereto on the Site does not imply approval or endorsement of such Third-Party Service. Kloudgen is not responsible or liable for the Content or practices of any Third-Party Service or third party, even if such Third-Party Service links to, or is linked by, the Site.
6. Your Content
7. Acceptable Use
Kloudgen is not responsible or liable for any user Content or conduct on the Site. If you become aware of any misuse of the Site, please report such misuse immediately to [email protected].
8. Compliance with Laws
You represent that, in agreeing to, and performing under, these Terms, you are not violating, and will not violate, any governmental laws, rules, regulations or orders that are applicable to your use of the Site (“Applicable Laws”). Without limiting the foregoing, you represent that, in connection with your performance under these Terms, you shall: (a) comply with Applicable Laws relating to anti-bribery and anti-corruption, which may include the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010; (b) comply with Applicable Laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”); and (c) not directly or indirectly export, re-export or otherwise deliver any Kloudgen software, content or services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. You represent that you are not a Sanctions Target or prohibited from receiving Kloudgen software, content or services pursuant to these Terms under Applicable Laws, including Export Laws
9. Global Availability
Kloudgen controls the Site from its Naperville, IL, USA office. If you use this website from other locations, you are responsible for compliance with local Applicable Laws. Kloudgen makes no representation that the products and services referenced herein are appropriate, or available, worldwide.
You agree to defend, indemnify and hold harmless Kloudgen, its affiliates and their respective employees, contractors, agents, officers and directors from and against any and all claims, damages, obligations, losses, liabilities, costs, debt or expenses (including without limitation attorneys' fees) arising out of or related to any claim, suit, action or proceeding by a third party arising out of or relating to your use of the Site, breach of these Terms (including any Kloudgen policy referenced in these Terms), violation of law, or any Content that you post, upload or cause to interface with the Site, or otherwise transfer, process, use or store in connection with the Site.
THE SITE AND ALL CONTENT AND OTHER ITEMS MADE AVAILABLE BY KLOUDGEN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. KLOUDGEN ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES OR INACCURACIES OF DATA OR INFORMATION POSTED, DISPLAYED, PUBLISHED OR MADE AVAILABLE FOR DOWNLOAD OR USE ON THE SITE, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM USE OF THE SITE, (iii) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, OR (iv) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY NOT UNDER KLOUDGEN'S CONTROL.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (a) IN NO EVENT SHALL KLOUDGEN, ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THE SITE; AND (b) IN NO EVENT SHALL KLOUDGEN'S CUMULATIVE AND AGGREGATE LIABILITY UNDER THESE TERMS EXCEED TWO HUNDRED U.S. DOLLARS. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
13. Responsibility for End Users
You are responsible for violations of these Terms by anyone using the Site with your permission or using your account on an unauthorized basis. Your use of the Site to assist another person in an activity that would violate these Terms if performed by you is a violation of these Terms. These Terms applies to anyone accessing or using the Site; however, each provision in these Terms shall be interpreted to include, and apply to, any action directly or indirectly taken, authorized, facilitated, promoted, encouraged or permitted by a user of the Site, even if such person did not themselves violate the provision.
14. Employment Opportunities
Kloudgen may, from time to time, post-employment opportunities on the Site and/or invite users to submit resumes to Kloudgen. If you choose to submit your name, contact information, resume and/or other personal information to Kloudgen in response to such employment listings, you are authorizing Kloudgen to use this information for all lawful and legitimate hiring, employment and other business purposes. Kloudgen also reserves the right, at its discretion, to forward such information to Kloudgen's affiliates for their legitimate business purposes. Nothing in these Terms or contained on the Site will constitute a promise by Kloudgen to review any such information or to contact, interview or employ any individual who submits such information.
15. Digital Millennium Copyright Act
1. 15.1. The Digital Millennium Copyright Act of 1998 (“DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that any material residing on or linked to from the Site infringes your copyright, please send (or have your agent send) to Kloudgen's Copyright Agent a notification of claimed infringement with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit Kloudgen to locate the material on the Site (such as the URL(s) of the claimed infringing material); (c) information reasonably sufficient to permit Kloudgen to contact you, including an address, telephone number and, if available, an email address; (d) the following statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law”; (e) the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”; and (f) your physical or electronic signature.
2. 15.2. To file a counter notification with Kloudgen, please provide the following information to Kloudgen's Copyright Agent: (a) a description of the material that Kloudgen has removed or to which Kloudgen has disabled access; (b) information reasonably sufficient to permit Kloudgen to contact you, including an address, telephone number and, if available, an email address, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or the Southern District of New York if your address is outside of the United States), and that you will accept service of process from the person who provided notification of infringement or an agent of such person; (c) the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled”; and (d) your physical or electronic signature.
3. 15.3. Kloudgen's Copyright Agent for notification of claimed infringement can be reached as follows: Copyright Agent, Kloudgen, Inc., Attn: Legal, 1700 Park Street, #111, Naperville, IL 60563 USA. Kloudgen's Copyright Agent for notification of claimed infringement can also be reached electronically at: [email protected]. Kloudgen reserves the right to terminate infringers' and suspected infringers' access to or use of the Site.
16. U.S. Government Rights
The Site is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Site. If you are using the Site on behalf of the U.S. Government and these terms fail to meet the U.S. Government's needs or are inconsistent in any respect with federal law, you must immediately discontinue use of the Site. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
17. Notice for California Residents
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: Kloudgen does not currently charge any fees for access and use of the Site. If you have a question or complaint regarding the Site, please contact Kloudgen by writing to: Kloudgen, Inc., Attn: Legal, 1700 Park Street, #111, Naperville, IL 60563, or by calling Kloudgen at 800-362-4352 x228. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445–1254 or (800) 952–5210.
18. Termination and Monitoring
1. 18.1. If you violate these Terms, Kloudgen may suspend or terminate your use of the Site. Kloudgen's right to suspend or terminate your use of Site applies even if a breach is committed unintentionally or without your authorization if Kloudgen believes that suspension or termination is necessary to ensure compliance with Applicable Laws or to protect the rights, safety, privacy, security or property of Kloudgen, its customers or third parties.
2. 18.2. Kloudgen reserves the right, but does not assume the obligation, to investigate any violation of these Terms or misuse of the Site. Kloudgen has the right in its sole discretion to edit, refuse to post or remove any Content posted, displayed, published or made available for download or use on the Site that Kloudgen finds to be in violation of these Terms. Kloudgen may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Such reporting may include disclosing appropriate customer data. Kloudgen also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations.
19. Electronic Communications.
When you visit the Site or send emails to Kloudgen, you are communicating with Kloudgen electronically; and you consent to receive communications from Kloudgen electronically. Kloudgen will communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that Kloudgen provides to you electronically satisfy any legal requirement that such communications be in writing.
Kloudgen may modify these Terms at any time by posting a revised version on the Site. By accessing the Site, you agree to the latest version of these Terms.
21. Governing Law
This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Illinois, without reference to its choice of law principles. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in Dupage County, Illinois, USA, and the Parties expressly consent to personal jurisdiction and venue in those courts.
These Terms constitute the complete and exclusive statement of the agreement between the Parties and supersede all proposals, oral or written, and all other communications between the Parties relating to the subject matter of these Terms. In the event any information posted on the Site from time-to-time conflicts with any provision of these Terms, the applicable provision of these Terms shall control. Any terms and conditions of any other instrument issued by you in connection with these Terms which are in addition to, inconsistent with or different from these Terms shall be of no force or effect. These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Kloudgen. You may not assign, transfer or sublicense all or any of your rights or obligations under these Terms without Kloudgen's express prior written consent. Kloudgen may assign, transfer or sublicense all or any of Kloudgen's rights or obligations under these Terms without restriction. The failure of Kloudgen to exercise or enforce any condition, term or provision of these Terms will not operate as a waiver of such condition, term or provision. Any waiver by Kloudgen of any condition, term or provision of these Terms shall not be construed as a waiver of any other condition, term or provision. If any provision of these Terms is held invalid or unenforceable, the remainder of these Terms shall continue in full force and effect. You agree that a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Kloudgen will not be responsible for failures to fulfill any obligations due to causes beyond its control. Non-English translations of these Terms are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls.
Please contact Kloudgen at [email protected] with any questions regarding these Terms.