1.1. Limited Subscription License

At the time of initial registration, You will select the Service item to which You wish to subscribe (each a “Subscription”). All Subscriptions are licensed to You, but not sold to You. Subject to this Agreement and continuing compliance with this Agreement, we grant You a non-exclusive, non-transferable, non-sublicensable, revocable limited Subscription. Your Subscription is subject to our approval and will be deemed accepted when we deliver a confirmation of the Subscription to You to the email address provided by You.

1.2. Subscription Term

1.2.1. Subscription Duration

The duration of a Subscription is monthly or, in the case of a new Subscription, from the date of activation to the end of the current month. A Subscription will expire at the end of each month and will automatically renew on the first day of the following month unless canceled or modified before renewal.

1.2.2. Subscription Upgrade

You have the flexibility to upgrade Your Subscription at any time, which will take effect shortly after successful payment.

1.2.3. Subscription Downgrade

You have the flexibility to downgrade Your Subscription at any time (some exclusions apply). A prorated credit will be issued at the time of downgrade and will be applied to the future invoice. Credits are not transferable, do not have cash value and cannot be redeemed as cash. Terminated or deactivated accounts with no active services will not be eligible for account credits.

1.3. Change of Services

We may change or discontinue any of our Services from time to time. We will provide You at least 6 months prior notice if we discontinue a Subscription or Service.

1.4. Service Restrictions

You and Your End Users will use our Services for lawful purposes only. Neither You nor any End User will use our Services in any manner or for any purpose other than as expressly permitted by this Agreement. Any and all transmissions, functions, storage or  presentation of any information, data or material in violation of any United States Federal, State or City law or Your local jurisdiction is prohibited. This includes, but is not limited to (a) unauthorized use of copyrighted material, trademark, intellectual property, material protected by trade secret and (b) use or representation of material that is obscene or threatening. Therefore, example of actions, contents or links such as these are prohibited: (a) pornography or similar non family friendly content, (b) malicious bots, malware and other malicious applications, (c) spamming or sending unsolicited bulk email, (d) copyright infringement content, (e) IRC Shell or Public IRC, (f) Illegal or pirated software, and (g) any and all malicious activities or attempt to gain unauthorized access or to impair any aspect of our Services or its related systems or networks, or other external systems or networks.

1.5. Reservation of Rights

We reserve all rights not expressly granted in this Agreement. No rights will be granted or implied by waiver or estoppel. All Services and Subscriptions are protected by copyright and other intellectual property laws and international treaties. Rights to access or use our Services and Subscription do not give You any right to reverse engineer, duplicate, disassemble, or decompile our Product or Services, or attempt to do so, except required by the local law despite this limitation.

1.6. Service Level Agreement

We offer You Service Level Agreement (“SLA”) guaranteeing certain availability of our Services. Please refer to our SLA guidelines for detail.

1.7. Third Party License Agreement

By purchasing, accessing, or using any software, services, or products provided by Third Party Providers through our offerings, You and Your Users acknowledge and agree to comply with the applicable license agreements, terms of service, and policies set forth by these Third Party Providers. This includes, but is not limited to, the End User License Agreements (EULA), Terms of Use, Privacy Policies, and any other legal agreements provided by the Third Party Providers.

You are responsible for reviewing and understanding the terms and conditions of the Third Party Providers before using their software, services, or products. You and Your Users acknowledge that these terms and conditions may be updated from time to time by the Third Party Providers and agree to remain compliant with the latest version of these terms.

Microsoft End User License Terms (EULT): https://www.microsoft.com/en-us/Useterms

Zerto EULA: https://www.zerto.com/zerto-eula/

Broadcom License and Service Terms: https://www.broadcom.com/company/legal/licensing

1.8. Trademark

The CloudKey Platform Trademark applies to Your use of the CloudKey Marks. You will not misrepresent or embellish the relationship between us and You (including by expressing or implying that we support, sponsor, endorse, or contribute to You or Your business endeavors). You will not imply any relationship or affiliation between us and You except as expressly permitted by this Agreement.

2.1. Your Accounts

Except to the extent caused by our breach of this Agreement, You are responsible for all activities that occur under Your account, regardless of whether the activities are authorized by You or undertaken by You, Your employees or a third party (i.e. contractors, agents or Users) with access to Your account.

2.2. Your Security

You are responsible for properly securing Your account with the up to date and accepted industry security best practices (i.e. the use of strong passwords, password rotations, multi-factor authentication, secure encryption, etc.) to protect against unauthorized access. You are also responsible for safeguarding Your login credentials and keys.

2.3. Your Content

You agree that the use of our Services by You and Your End Users are for lawful purposes only.  You are also responsible to develop, operate, maintain, secure and protect Your Content.

2.4. VM Replication, Backup and Snapshot

We provide self-service options for You to create, manage and monitor VM (Virtual Machine) Replication, Backup and Snapshot within the CloudKey console. By using these services, You acknowledge and accept that we are not liable for any damages, losses, or inconveniences arising from the failure to restore data from backups, regardless of the cause. You will be responsible to ensure that You have sufficient storage and resources to support these self-service options.

VM Replication, Backup and Snapshot can only process the data that is present on the disk. Data that is not crash consistent (still in memory but not yet committed to the disk) will not be processed. Due to complexity that Your environment or application may require or other unforeseen event, we are not responsible to ensure that your backup is fully restorable. You will be responsible for testing the viability and restorability of your replication, backup and snapshot data. Performance may vary based on the size of the VM dataset.

Replication

VM Replication applies to individual VM replication to a secondary (or tertiary) CloudKey site. The VM Replication data will be stored in the CloudKey primary storage on the target site(s). You will need to purchase enough Replication Subscriptions and secondary (or tertiary) CloudKey site storage and resources for Your desired VM Replication.

Backup

VM Backup applies to individual VMs and is limited to the local CloudKey site where the VM resides. The Backup data will be stored on CloudKey Backup storage. You will need to purchase enough Backup Subscriptions and Backup storage for your desired VM Backup.

Snapshot

VM Snapshot applies to individual VMs and is limited to the CloudKey site where the VM resides. The Snapshot data will be stored on site within Your primary storage. VM Snapshot is limited to one (1) per VM.

2.5. Your End Users

You are responsible for any action by You and Your Users (i.e. “End Users” which includes Your affiliates, third parties and employees). You will be responsible to enforce and ensure that You and all Your End Users comply with all the terms under this Agreement while using our Services. If You become aware of any violation of Your obligations under this Agreement caused by an End User, You will immediately suspend access to Your Content and the Services accessible by such End User.

3.1. Customer Data Rights and Ownerships

You will remain the sole owner of all right, title and interest in and to all Customer Data, subject to the right and permissions granted in Section 3.2.

3.2. Right to Use Customer Data

You and Your End Users grant Us the right to use Customer Data in compliance with applicable law in order to (a) communicate with You, (b) perform the Service in accordance with this Agreement or (c) as may be required by law.

3.3. Right to Use Feedback

You and Your End Users grant to Us a royalty-free right to use and incorporate into our materials at all times any form of suggestions, requests, or any other input or feedback provided by You and Your End Users.

4.1. Service Fees

We calculate and bill the Subscription on a monthly basis (collectively “Fees”). Subscription based Services will be charged monthly at the beginning of service, and You will pay us the applicable fees and charges for use of the Services using one of the payment methods we support. You agree that all amounts payable by You under this Agreement will be paid to us timely without setoff or counterclaim, and without any deduction or withholding. It is imperative that payments are made promptly to avoid any disruption to services or potential account termination.

We may increase our service fee by providing You with advance notice no less than thirty (30) days prior to such changes taking place.

4.2. Taxes

You will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) with respect to the transactions and payments under this Agreement. All fees payable by You are exclusive of Indirect Taxes, except where applicable law requires otherwise. You agree to pay all applicable Indirect Taxes that we are legally obligated or authorized to collect from You. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from You. We will not collect, and You will not pay, any Indirect Tax for which You furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by You to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, You agree to pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement.

4.3. Billing

Subscriptions are billed on an automatic, auto-renewal and recurring basis unless and until You follow termination procedure set forth in section 7 of this Agreement. Your obligation to pay fees continues through the end of the Subscription Term. Our Subscriptions may be subject to usage limits. We perform Service audits periodically. If we determine that Your usage exceeds the current amount of usage limits purchased, we reserve the right to invoice You for the additional use and offer You an upgrade suitable for Your usage.

4.4. Late Payments

We may elect to charge You interest at the rate of 1.5% per month or up to the highest rate permitted by law on all late payments.

4.5. Grace Periods

Payment is due and automatically processed upon Subscription order and its renewal on the first day of each month. Should the payment method on file fail, we offer a grace period of five (5) days beyond the due date for payment to be received. Failure to settle the outstanding amount within this grace period may result in the following actions:

1. Suspension of Services
   If the outstanding balance is still not paid within the grace period, we reserve the right to suspend services associated with the account with or without notice until the outstanding balance is paid.
2. Termination of Account
   In the event that the outstanding balance remains unpaid beyond the grace period and the suspension of services, we reserve the right to terminate the account associated with the unpaid invoice with or without notice. This termination may include the cessation of all services, access to platforms or products, permanent data deletion and further action as defined in section 7 of this Agreement.

Credit will not be provided for any downgrades that occurred during the grace period until all outstanding balance is paid.

4.6. Other Fees

We are not responsible for any transaction fees incurred by You due to insufficient funds, Your use of check cards, automatic payment services and any and all other fees Your financial institution may impose due to Your use of the Subscriptions. If we should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, we will bill You for the difference between payment received and the Fees due. You also agree to pay all attorney and collection fees arising from our efforts to collect any past-due Fees.

The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under the Section 7. Unless otherwise agreed on a separate written agreement, the term of CloudKey Subscription is month-to-month.

6.1. General Cause

We may suspend Your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to You if we determine that (a) You or Your End User’s use of the Subscription poses a security risk to the Services or in breach of this Agreement, or (b) You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, insolvency, dissolution, liquidation or similar proceeding.

6.2. Effect of Temporary Suspension

Under this suspension period, You remain responsible for all fees and charges of the Subscription and You will not be entitled to any Service credits under the Service Level Agreements.

7.1. Cancellation

You may cancel a Subscription by canceling it on or before the last day of the month to prevent auto renewal. Upon successful cancellation, a Subscription will no longer be charged or invoiced in the following month.

7.2. Termination Following Suspension of Services

In the event that a Service is suspended due to Customer or End User’s non performance as defined in Section 4, we may terminate this Agreement and any or all Subscriptions or Services. We will exercise all remedies available under the applicable law.

7.3. Termination for Cause

Either party shall notify the other party promptly and without unreasonable delay upon learning of any actual or suspected material breach. Except as provided in Section 7.2., either party may terminate this Agreement and Subscription related to the breach if the other party materially breaches this Agreement and fails to cure the breach within thirty (30) days or other agreed time frame following receipt of written notice from the non-breaching party (excluding any breaches relating to the payment of charges and fees in Section 4, which shall not require further notice as to due date).

7.4. Termination due to Bankruptcy

Either party may terminate this Agreement for cause immediately if the other party files for bankruptcy, becomes insolvent or makes an assignment for the benefit of creditors, or if a Trustee is set up to administer a substantial portion of the other party’s assets or business.

7.5. Consequences of Termination

Upon termination of this Agreement for any reason other than cancellation by You under Section 7.1. or 7.3., You agree to immediately pay us upon receipt of invoice for each Service terminated all unpaid charges and fees defined in the Agreement and any other charges incurred as the consequences of such termination. Rights and obligations which by their nature continue after the termination or expiration of this Agreement or Service Order shall survive and bind the parties, their successors, heirs and permitted assigns. Your content, related data and access to the Service will be deleted and removed once the Service is terminated.

You will defend, indemnify, and hold us, our affiliates, vendors and licensors, and each of their respective employees, officers, directors, and representatives harmless from and against any losses arising out of or relating to any third-party claim concerning: (a) Your or any End Users’ use of the Subscription; (b) breach of this Agreement or violation of applicable law by You, End Users or Your Content; or (c) a dispute between You and any End Users. You agree to immediately reimburse us upon invoice reasonable attorneys’ and court fees, as well as our employees’ and contractors’ time and materials spent to respond to any third party legal subpoena or proceeding associated with third party claims described in this section.

9.1. Third Party Product and Services

You acknowledge and agree that we make no representation or warranty, express or implied, as to any third party hardware, software, products or services included with the Subscription. We assign to You all assignable warranties and indemnities granted to us by such third parties to the extent applicable to Your receipt or use of the Subscription during the Service term. To the extent we are not permitted to assign any such third party warranties and indemnities, we will use commercially reasonable efforts to enforce such protections on Your behalf, subject to  the third party agreements and applicable law.

9.2. Warranties

We will provide Subscription in a manner that does not infringe any intellectual property or other rights, and to perform the service to the best of our ability as defined in this Agreement. Except as stated in this Agreement, we make no representations or warranties of any kind, whether expressed or implied with respect to the product and Services. We disclaim all other warranties or conditions, including without limitation, warranties of merchantability or fitness for a particular purpose, all warranties arising from conduct, course of transaction or custom of trade and all warranties of title and non-infringement. We do not warrant that the Services will always be free from error or that the use of the Services will be uninterrupted at all times. Some jurisdictions do not allow the exclusion of implied warranties, so portions of the above exclusions may not apply, but only to the extent necessary to bring the exclusion into compliance.

We and our affiliates, subsidiaries, or contractors will not be liable for any delay, failure in performance, loss or damage that is caused by events beyond our reasonable control including but not limited to, fire, flood, explosion, fiber cuts, failure of public utilities, unavailability of materials or rights-of-way, accident, war, strike, embargo, terrorist activities, public riot, blockage, civil disturbance, governmental restraint, supplier failures, shortages, breaches or delays and natural disasters.

If any part of this Agreement is found by a court to be invalid, void, or unenforceable, the rest of the Agreement will continue to be fully effective. Furthermore, if a court determines that any provision in this Agreement cannot be enforced as written due to its scope, duration, extent, or nature, the parties intend for that provision (or part of it) to be interpreted in a way that best fulfills its purpose while still being enforceable under applicable law.

This Agreement will be interpreted and construed in accordance with the internal laws of the State of Delaware, United States without giving effect to its principles of conflicts of laws. In the event of any dispute, contest, arbitration or litigation between the parties, the prevailing party in such dispute, contest, arbitration or litigation shall be fully reimbursed by the other party for all costs, including reasonable attorneys’ fees, court costs, expert or consultant’s fees and reasonable travel and lodging expenses incurred by the prevailing party, including any appellate proceedings. This Agreement, the duties and the obligations of Provider and Customer shall be enforceable against any of the parties in the courts in Delaware.

Updated: 08/26/2024 10:55 PM CT