MASTER SUBSCRIPTIONS TERMS
This Master Subscription Terms (the “Agreement”) defines how Cloud Mile Inc. (a company incorporated under the laws of Hong Kong, the “Cloud Mile”) provides you , as a client (the “Client”), with the service through Cloud Mile’s website (the “Service”).
Please read carefully before you proceed to use the Service. Any use of the Service will be construed as you have given your consent to this Agreement. If you cannot agree part or whole of the Agreement stated hereunder, please do not use the Service.
PROVISION OF SUBSCRIPTION
- Subject to the Terms of this Agreement, Cloud Mile will use commercially reasonable efforts to provide Client with the Services. Unless otherwise provided in the applicable Order Form, Services are purchased as a subscription. Cloud Mile hereby grants Client a non-exclusive, non-sublicensable, non-transferable right to access and use the Services during the subscription term.
- Without the prior written consent from Cloud Mile, the Service cannot be used by anyone other than the Client. Furthermore, Client shall solely use the Service for its internal business purposes. Cloud Mile reserves all rights to the Services not expressly granted in this Agreement. Cloud Mile reserves the right to create and maintain administrative, support, system, and maintenance accounts within the Service, all with the necessary data access for Cloud Mile and its assigned operators and/or other service providers to deliver the Service.
RESTRICTIONS AND RESPONSIBILITIES
- Client represents and warrants that it will not (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Service; (ii) modify or create derivative works based on the Service (iii) create internet “links” to the Service or “frame” or “mirror” any content provided in connection therewith; or (iv) reverse engineer, access or use the Service to build a product using ideas, features, functions or graphics similar to the Service, or (iii) copy any ideas, features, functions or graphics of the Service. Client will not use the Service to interfere with or disrupt the integrity or performance of the Service or the data contained therein. Client will not attempt to gain unauthorized access to the Service or its related systems or networks. Client will not provide or disclose to, or permit use of the Services by, persons other than Client’s employees and contractors who are under a legally binding obligation of confidentiality consistent with this Agreement. Cloud Mile reserves the right to suspend and/or terminate this Agreement and the applicable access rights in the event of any breach of this Section. Such suspension and/or termination will be without prejudice as to Cloud Mile’s other rights and remedies.
- Client represents and warrants that it will use the Services only in compliance with Cloud Mile’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless Cloud Mile against any damages, losses, liabilities, settlements and expenses (including but without limitation the costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services. Although Cloud Mile has no obligation to monitor Client’s use of the Services, Cloud Mile may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
- Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.
- Client may grant Affiliate(s) access the Services, provided that any act or omission by an Affiliate in breach of this Agreement will be deemed a breach by Client. Further, Client’s Affiliates may purchase Services under the Agreement of this Agreement by executing an Order Form that specifically references the Agreement of this Agreement.
Services are subject to usage limits, including, for example, the quantities of decisions listed in an Order Form. If Client exceeds a contractual usage limit, Client agrees to be invoiced for additional usage at Cloud Mile’s then current list price or at the applicable pricing referenced in the corresponding Order Form.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Cloud Mile includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Cloud Mile to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
- The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof, or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
- Client shall own all right, title and interest in and to the Client Data. Cloud Mile shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
- Notwithstanding anything to the contrary, Cloud Mile shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Cloud Mile will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Cloud Mile offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
FEES AND PAYMENT TERMS
- Client will pay all invoices issued. Unless otherwise provided in the applicable Order Form, invoices will be issued upon commencement of the Subscription Term and additional periodic invoices may be issued for exceeded usage and renewals of the Subscription Term. Amounts are due and payable in full, without setoff or deduction, within thirty (30) days following the invoice date and are payable in SGD on Singapore, HKD on Hong Kong, TWD on Taiwan, and USD on global unless otherwise agreed. If Client reasonably disputes any invoiced amount in good faith, Client will notify Cloud Mile of such dispute in writing.
- The fees outlined in an Order Form will apply to both the initial term as well as any renewal terms. Fees may not be modified during the initial term. Cloud Mile reserves the right to modify its fees and charges upon at least thirty (30) days’ notice prior to any subsequent renewal Subscription Term. Any fee adjustments will take effect upon the commencement of the subsequent Subscription Term.
- Cloud Mile may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Cloud Mile thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is higher, plus all expenses of collection and may result in immediate termination of Service.
- Cloud Mile’s fees are exclusive of all transaction taxes, levies, or duties, and Client will be responsible for payment of all such transaction taxes, levies, or duties. Client will make all payments of fees to Cloud Mile free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees to Cloud Mile will be Client’s sole responsibility, and Client will provide Cloud Mile with official receipts issued by the appropriate taxing authority, or such other evidence as Cloud Mile may reasonably request, to establish that such taxes have been paid. Client agrees to indemnify, defend, and hold Cloud Mile, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Client’s failure to report or pay any such taxes, duties or assessments.
TERM AND TERMINATION
- Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term; provided, however, that the terms of this Agreement will continue to apply to any Order Forms that are still in effect.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice (or without notice in the case of nonpayment), if the other party breaches any of the terms or conditions of this Agreement. Client will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- Cloud Mile may immediately suspend or terminate this Agreement upon notice to Client that in Cloud Mile’s reasonable determination: (a) Client is in breach of this Agreement (b) Client’s use of the Services is interfering with, or could reasonably be expected to interfere with, Cloud Mile’s operation or provision of any third-party’s use of the Services or any other business of Cloud Mile’s; or (c) the Client’s use of the Services is harming, or could reasonably be expected to harm, Cloud Mile’s reputation; or (d) Client does not abide by all applicable laws, treaties and regulations in connection with use of the Service.
WARRANTY AND DISCLAIMER
- Cloud Mile shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Cloud Mile or by third-party providers, or because of other causes beyond Cloud Mile’s reasonable control, but Cloud Mile shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
- NOTWITHSATNDING WITH THE FORGOING, CLOUD MILE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND CLOUD MILE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, CLOUD MILE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND CLOUD MILE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO CLOUD MILE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 3 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CLOUD MILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- This Agreement is not assignable, transferable or sublicensable by Client except with Cloud Mile’s prior written consent. However, Cloud Mile may transfer and assign any of its rights and obligations under this Agreement without Client’s consent.
- This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
- No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Cloud Mile in any respect whatsoever.
- The failure of Cloud Mile to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing.
- In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
- No presumption will operate in favor of or against any party as a result of its role in drafting this Agreement.
- This Agreement shall be governed by the laws of the Republic of China (R.O.C., Taiwan) without regard to principles of conflicts of laws. Any dispute, controversy, difference or claim arising out of, relating to or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration referred to the Chinese Arbitration Association, Taipei in accordance with the Association’s arbitration rules. The arbitral award shall be final and binding upon both parties.
- All Client’s Order Form under this Agreement will be subject only to this Agreement. In the event the terms of any such Order Form conflict with this Agreement, this Agreement alone shall apply and shall govern regardless of execution of such document by one or both parties, unless Cloud Mile shows expressly its intent in writing as such terms of Order From shall prevail. Any terms that are additional to this Agreement on the Order From will prevail but only with respect to that Order Form.
- No modifications or amendments of this Agreement shall be valid unless signed and agreed upon by both parties.