LEGAL K² CLOUD ENGINEERING SERVICES

AGREEMENT

 

THIS K² CLOUD ENGINEERING SERVICES AGREEMENT IS A BINDING CONTRACT between K² Cloud Engineering Limited(“K² Cloud” or “we”) and you, and if applicable, between K² Cloud and the company or other legal entity that you represent. You or the company you represent are referred to in this Agreement as “Client” or “you”. K² Cloud and Client are also referred to individually as a “party” and collectively as the “parties”. If you are entering into this Agreement as an individual, you represent and warrant that you are over the age of eighteen (18) and possess the legal capacity to bind yourself to its terms and conditions. If you are entering into this Agreement on behalf of a business organization or entity, you represent and warrant that you are duly authorized to bind that entity to this Agreement.

 

1. AGREEMENT. As referred to herein, “Agreement” means this Cloud Services Agreement, together with all policies and addenda that are incorporated herein by reference, including the Acceptable Use Policy, Privacy Policy. This Agreement sets forth the terms and conditions that apply to the Cloud Services. 

 

2. SERVICES. All Cloud Servers and any additional unmanaged services that we make available to you through our Cloud Services Website at http://www.k2cloud.ie, including any related support services or Documentation we may provide, are collectively referred to in this Agreement as the “Cloud Services”. The Cloud Services, including all Cloud Servers, are unmanaged. We reserve the right to modify the Cloud Services at any time and without advance notice. Content used in connection with a prior version of the Cloud Services may be incompatible with a subsequent version of the Cloud Services.

 

3. TERM. The term of this Agreement (“Term”) will begin when the first of the following occurs: (i) you complete the registration process for your Cloud Services account online at http://signup.k2cloud.ie/signup and accept the terms and conditions in this Agreement by placing a check mark in the box below and pressing continue; (ii) both parties have signed a signature page, if any, for this Cloud Server Agreement; or (iii) you use the Cloud Services. This Agreement will remain in effect until terminated by you or us in accordance with Section 4.

 

4. SUSPENSION AND TERMINATION BY K² Cloud Engineering. (a) FOR CAUSE. We may immediately (and without prior notice) suspend or terminate all or part of the Cloud Services by sending you a written notice of termination if one or more of the following occurs: (i) we discover that you provided us with false information when you registered for Cloud Services, or that you lacked the capacity to enter into this Agreement at the time of its consummation; (ii) we determine, in our sole discretion, that your use of the Cloud Services poses a threat to the security or performance of our network or to any of our clients or suppliers; (iii) we determine, in our sole discretion, that your use of the Cloud Services is illegal, or that it misappropriates or infringes the property rights of a third party; (iv) we reasonably believe that your use of the Cloud Services has or will subject K² Cloud to civil or criminal liability; (v) you become the subject of an involuntary or voluntary bankruptcy or similar proceeding, or you assign all or substantially all of your assets for the benefit of creditors; (vi) you fail to make any payment when due or if your credit card is declined; (vii) you use cloud resources in an attempt to gain unauthorized access to computer systems (i.e., “hacking”); or (viii) you breach any of the other terms and conditions in this Agreement, including the AUP. (b) WITHOUT CAUSE. We may suspend or terminate all or part of the Cloud Services in the absence of cause by providing you with thirty (30) days’ advance notice of the termination in accordance with the notice provisions in Section 28 below.

 

5. TERMINATION BY YOU. You may terminate this Agreement at any time and for any reason (or no reason at all) by providing us with a written notice of termination in accordance with the notice provisions in Section 28 below and closing your Cloud Services account online at http://www.k2cloud.ie/CloseAccount

 

6. EFFECT OF SUSPENSION AND TERMINATION. (a) SUSPENSION. The Cloud Services will be unavailable in whole or in part during any suspension, and you may not have access to your data. Fees may continue to accrue during a suspension, and we may charge you a reinstatement fee following any suspension of your Cloud Services. (b) TERMINATION. Effective immediately upon the termination of this Agreement, the Cloud Services will no longer be available and we will permanently erase all data stored on the Infrastructure. All Confidential Information and Documentation, including all copies thereof, must be returned to us or permanently destroyed. On our written request, you agree to certify in writing that you are no longer in possession of any Confidential Information or Documentation. All terms of this Agreement that should by their nature survive termination will survive, including, Sections 6 (Effect of Suspension; Termination), 8 (Fees), 9 (Taxes), 14 (Security), 15 (Fees for Unauthorized Use), 16 (Disclaimers), 17 (Limitation of Damages), 18 (Indemnification), 19 (Content), 25 (Governing Law; Venue; Jurisdiction; Waiver of Jury Trial), 26 (Intellectual Property), 30 (Notices), 31 (Representations), 32 (Neutral Interpretation), 34(Confidentiality), 35 (Assignment; Resale; Binding Effect); 19 (Definitions), 39 (Miscellaneous), and 40 (Scope of Agreement; Entire Agreement).

 

7. AMENDMENTS. Except as provided in this Section 7, no amendment to this Agreement will be effective unless it is in writing and signed by both parties. K² Cloud may amend this Agreement by posting the modified version online at http://www.k2cloud.ie/legal/cloud-services-agreement. Amendments to this Agreement will become effective upon the earlier to occur of (i) your acceptance of the amended terms by clicking an online confirmation or acceptance button, or by clicking an acceptance link provided in an email we send to you; or (ii) thirty (30) days after K² Cloud provides you with notice of the amendment in accordance with the notice provisions in Section 28. Your continued use of the Cloud Services after the effective date of an amendment to this Agreement will be deemed to be your acceptance of that amendment.

 

8. FEES AND BILLING. (a) You agree to pay all fees for the Cloud Services at the applicable rate set forth online at http://signup.k2cloud.ie/pricing. All fees for Cloud Services are payable in Euro and will be charged to your credit card without invoice. In our discretion, we may charge your credit card once per month or more frequently if we determine it is warranted by the fees you incur.  In our sole discretion, we may also place an authorization hold on your credit card at any time for fees that you have already incurred. The calculation of all fees for Cloud Services will be based solely on our records and data. All computing overheads, including storage and bandwidth, will be included in the calculation of your fees. Fees for a particular Cloud Server will begin to accrue when the Cloud Server is associated with your Cloud Services account. You are solely responsible for all fees relating to Cloud Servers that are associated with your Cloud Services account and for any fees that you incur until they are deactivated. Fees that are not disputed within sixty (60) days of the date on which they are charged will be conclusively deemed to be accurate. If for any reason we cannot process your credit card or you fail to make a payment, you agree to pay our costs of collection, including all reasonable attorneys’ fees and expenses. We may charge interest on overdue fees at the lesser of 1.5% per month or the maximum rate permitted by law. It is your sole responsibility to provide accurate billing contact information and to notify us of any changes to your billing contact information in accordance with the notice provisions in Section 28 below. (b) FEE INCREASES. We may increase your fees for the Cloud Services on thirty (30) days’ prior notice sent in accordance with the notice provisions in Section 28 and by posting the increased fees on our Website at http://signup.k2cloud.ie/pricing. (c) PAYMENT PROCESSING. Credit card payments made in accordance with Section 8(a) will be processed by a third-party card processing company who is subject to a written agreement with us. That agreement requires the card processing company to use adequate security and confidentiality measures to protect your payment information. All payment information that you provide through the Cloud Services Website will be transmitted directly to the card processing company over a secure connection. We will not record your credit card number, expiration date, or CVV number. However, this information may be stored by the card processing company in the normal course of its business, or as required or authorized by law, statute, regulation, or Payment Card Industry standard. (d) We may, in our sole discretion, elect to bill you for the Cloud Services in accordance with a pre-existing billing arrangement that you have with us for another service we provide under a separate agreement. If we do not agree in writing to bill your Cloud Service fees in accordance with a pre-existing billing arrangement between us, if any, you must submit and keep on file a valid credit card that we will process to pay your Cloud Service fees no less than once per month as provided in this Section 8.

 

9. TAXES. You agree to pay all taxes on the Cloud Services that we are required by law to collect, including transaction, local, value-added, sales, and service taxes. All fees specified on our Website at http://signup.k2cloud.ie/pricing are exclusive of any such taxes, duties, levies or fees. In no event will you be responsible for any taxes on our income. If you are exempt from paying taxes on the Cloud Services, you agree to provide us with reasonable proof of your tax exempt status.

 

10. ACCEPTABLE USE POLICY. “Acceptable Use Policy” and “AUP” each mean the acceptable use policy posted at http://www.k2cloud.ie/legal/acceptableuse on the day your Term commences, as it may be amended by us in accordance with the amendment procedures described in Section 7 above. The AUP is part of this Agreement. You are required to use the Cloud Services in accordance with the AUP. You agree to cooperate with any reasonable investigation by us regarding an actual or potential violation of the AUP

 

11. PRIVACY POLICY. “Privacy Policy” means the privacy policy posted at http://www.k2cloud.ie/legal/privacy-policy on the day your term commences, as it may be amended by us in accordance with the amendment procedures described in Section 7 above. The Privacy Policy is part of this Agreement. You are required to use the Cloud Services in accordance with the Privacy Policy.

 

 

12. SERVICE LEVEL AGREEMENT. When we use the term “Service Level Agreement” or “SLA” anywhere in this Agreement, we are referring to the service level agreement set forth in this Section 13. We will use commercially reasonable efforts to make the Cloud Services available 99.90% of the Service Year. ”Service Year” means the three hundred sixty five-day period immediately preceding a claim for a service credit. (a) SERVICE CREDIT. Uptime for each Service Year will be calculated by subtracting from 100% the percentage of time during which our Infrastructure was unavailable to all of our Cloud Service clients (the “Uptime Percentage”). If the Uptime Percentage for the Service Year is less than 99.90%, you will be eligible for a service credit equal to 10% of your Cloud Services bill for the calendar month in which the Uptime Percentage dropped below 99.90%. The Uptime Percentage will be calculated using five-minute increments. (b) DOWNTIME EXCLUSIONS. Downtime does not include unavailability caused by one or more of the following: (i) maintenance, a suspension, or a termination of the Cloud Services; (ii) the failure of servers or services outside of a datacenter on which the Cloud Services are dependent, including, but not limited to, inaccessibility on the Internet that is not caused by our Infrastructure or network providers; (iii) a force majeure event such as an act of God, act of war, act of terrorism, fire, governmental action, labor dispute, and any other circumstances or events not in our direct control; (iv) an attack on our Infrastructure, including a denial of service attack or unauthorized access (i.e., hacking); (v) unavailability not reported by you in accordance with the reporting provisions in Section 13(c) within five (5) of the days of the date on which the Uptime Percentage dropped below 99.90%; (vi) your use of a separate K² Cloud service that is not subject to this SLA; (vii) unavailability that results from the failure of individual Cloud Servers and that is not attributable to an event causing unavailability to all clients using the Cloud Services; or (viii) unavailability that is caused by your breach of this Agreement. (c) SERVICE CREDIT PROCEDURES. We will determine, in our reasonable discretion, your eligibility for service credits and the amount of service credits awarded pursuant to this SLA. To be eligible for service credits, you must send us a reasonably detailed, written request for service credits no later than five (5) Business Days after the day on which your Uptime Percentage first drops below 99.90%. To be deemed valid, your request must include (i) the dates and times of each period of Cloud Service unavailability upon which your request is based; (ii) the instance names of the affected Cloud Servers; and (iii) a description of any events from the Cloud Services portal that may have indicated a system-wide unavailability during the stated dates and times. If your Uptime Percentage is confirmed by us to be less than 99.90% for the Service Year, we will issue a service credit during the billing cycle following the month in which we determine that you are eligible for one. All service credits will be applied to fees due from you to us for Cloud Services; we will not pay any service credit to you as a refund. If you fail to provide us with a valid request, you will not be eligible for a service credit. Our calculation of your Uptime Percentage and all service credits will be based on our records and data. Any dates and times that you previously reported that led to a successful service credit claim cannot be used for future claims. (d) LIMITATION. THE SERVICE CREDITS DESCRIBED IN THIS SLA ARE YOUR SOLE AND EXCLUSIVE REMEDY FOR THE UNAVAILABILITY OF A K² CLOUD SERVER.

 

13. SECURITY. Except as expressly provided in this Agreement, you acknowledge that you bear the sole responsibility for the security of the Cloud Services. You agree to implement security measures that are commercially reasonable for your use of the Cloud Services, including encryption technologies, password and user ID requirements, and procedures regarding the application of security patches and updates. NEITHER WE NOR ANY OF OUR EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS OR LICENSORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS (I.E., HACKING) INTO THE K² CLOUD SERVERS OR YOUR TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.

 

14. FEES FOR UNAUTHORIZED USE. You are required to pay all fees for Cloud Services accessed through your account, including all fees resulting from unauthorized use.

 

15. DISCLAIMERS. (a) ALL GOODS AND SERVICES ARE PROVIDED “AS-IS”. EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER, WE AND OUR SERVICE SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. YOU ARE SOLELY RESPONSIBLE FOR THE SUITABILITY OF ALL GOODS AND SERVICES CHOSEN AND FOR DETERMINING WHETHER THEY MEET YOUR CAPACITY, PERFORMANCE AND SCALABILITY NEEDS. (b) WE AND OUR SERVICE SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE K² CLOUD ENGINEERING SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, COMPLETELY SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL OR MONITOR THE TRANSFER OF DATA OVER THE INTERNET, AND THAT INTERNET ACCESSIBILITY CARRIES WITH IT THE RISK THAT YOUR PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY MAY BE LOST OR COMPROMISED.

 

16. LIMITATION OF DAMAGES. EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER (A) NEITHER WE NOR ANY OF OUR EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS, OR LICENSORS, WILL BE LIABLE FOR ANY PUNITIVE, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, OR FOR ANY LOST PROFITS, LOST DATA, LOST BUSINESS, LOST REVENUES, DAMAGE TO GOODWILL, LOST OPPORTUNITIES OR LOSS OF ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SAME, AND REGARDLESS OF WHETHER THE CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, INFRINGEMENT, OR ANY OTHER LEGAL OR EQUITABLE THEORY; AND (B) THE AGGREGATE LIABILITY OF US AND OUR EMPLOYEES, AGENTS AND REPRESENTATIVES TO YOU UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT YOU ACTUALLY PAID TO US FOR THE K² CLOUD ENGINEERING SERVICES DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST EVENT GIVING RISE TO YOUR CLAIM(S) OCCURRED.

 

17. INDEMNIFICATION. You agree to indemnify, defend and hold K² Cloud and its employees, agents, shareholders, officers, directors, successors and assigns harmless from and against any and all claims, damages, liabilities, costs, settlements, penalties and expenses (including attorneys’ fees, expert’s fees and settlement costs) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim or demand brought or asserted by a third party pursuant to any theory of liability against K² Cloud arising out of or relating to any one or more of the following: (i) a breach by you of this Agreement; (ii) the use of the Cloud Services by you or your end users, or any Content or information on the Cloud Services; (iii) the alleged or actual infringement or misappropriation of any intellectual property right or other proprietary right by you, or by your agents, representatives or end users; (iv) your relationship with the manufacturer of any software installed or stored on the Cloud Services; or (v) your failure to use reasonable security precautions. We will provide you with written notice of the existence of any basis for indemnification and we will select our defense counsel. You will have the right to approve any settlement, but you may not unreasonably withhold your approval. You agree to indemnify us from all costs, expenses and liabilities as they become due.

 

18. CONTENT. You are solely responsible for the selection, compatibility, licensing, development, accuracy, performance, operation, maintenance, and support of all Applications, information, software, and data, including any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets or servlets that you or your subcontractors or end users create, install, upload or transfer on, from or through the Cloud Servers (“Content”). We may immediately (and without prior notice) block access to any Content on the Cloud Services (i) that we believe violates the law, misappropriates or infringes the intellectual property rights of a third party, or violates the terms and conditions of this Agreement; or (ii) pursuant to the Digital Millennium Copyright Act, a subpoena, or an order issued by a court or government agency.

 

19. BACKUPS. Notwithstanding anything in this Agreement to the contrary, you are solely responsible for backing up all Content on Services and Instances. You acknowledge that snapshots will be used on a best-effort basis to cover basic system matainability and snapshots will not record an autonomous copy of any file, and that you may not restore lost data from a snapshot. Snapshots may enable K2 Cloud to restore your system to a specific point in time, but they are not an adequate backup solution. You agree to independently create and maintain outside of the Cloud Services a current backup copy of all Content stored on the Cloud Servers.

 

20. SOFTWARE. We will provide you with access to certain software products as part of the Cloud Services. WE MAKE NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING ANY SOFTWARE PRODUCT OR RELATED SUPPORT SERVICES THAT WE MAY PROVIDE AND, AS BETWEEN YOU AND US, SUCH PRODUCTS AND RELATED SUPPORT SERVICES ARE PROVIDED “AS IS.” You are not granted any title or intellectual property rights in or to any software provided as part of the Cloud Services, and you may only use that software in connection with the Cloud Services as permitted under this Agreement. Your acceptance or use of software provided as part of the Cloud Services is deemed to be an acceptance by you of the license or other agreement that governs the use of that software. You shall not (i) copy any software; (ii) remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear on any software or appear during its use; or (iii) reverse engineer, decompile or disassemble any software. In addition to the other terms in this Agreement, your use of any Microsoft® product provided by us is governed by the terms and conditions of the Microsoft Addendum located at http://www.k2cloud.ie/legal/microsoft-software-addendum. You shall obtain all consents and licenses required for both parties to legally access and use all software that you place on the Cloud Servers without infringing any ownership or intellectual property rights. Upon our request, you shall provide reasonable proof to us that you have obtained such consents and licenses. We will be relieved of any obligations under this Agreement that are adversely affected by your failure to obtain any required consents or licenses, or to promptly furnish reasonable evidence you have obtained those consents or licenses.

 

21. MAINTENANCE; SERVICE MODIFICATIONS AND DISCONTINUANCE. In addition to our right to suspend or terminate the Cloud Services in accordance with Section 4 , we may suspend all or part of the Cloud Services without liability or prior notice to you (i) in order to maintain (i.e., modify, upgrade, patch, or repair) our Infrastructure or any Cloud Servers; (ii) as we determine may be required by law or regulation; or (iii) as we determine to be necessary to protect our Infrastructure and clients from unauthorized access or an attack on the Cloud Services. Notwithstanding the foregoing, we will endeavor in good faith to provide you with advance notice of any suspension or termination under this Section 22 in accordance with the notice provisions in Section 28 and we will provide you with notice of the suspension or termination as soon as it becomes practicable for us to do so.

 

22. SUPPORT. The Cloud Services will be provided without live support. Technical support will be limited to the online resources we make available to you on the Cloud Services Website. You may direct questions regarding your billing to us at billing@k2cloud.ie. NO SUPPORT, ADVICE OR INFORMATION RELATING TO THE K² CLOUD ENGINEERING SERVICES THAT YOU OBTAIN FROM K² Cloud Engineering OR FROM ANY THIRD PARTY, OR THAT YOU OBTAIN THROUGH THE K² CLOUD ENGINEERING SERVICES, WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY WRITTEN IN THIS AGREEMENT.

 

23. HIGH RISK USE. You may not use the Cloud Services for any application where a failure of those Cloud Services could result in death, serious injury, environmental damage or property damage. Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments. You acknowledge that we make no assurances that the Cloud Services are suitable for any high-risk use.

 

24. GOVERNING LAW; VENUE; JURISDICTION; WAIVER OF JURY TRIAL. The laws of The Republic of Ireland, without reference to its choice of law principles, govern this Agreement and any claims arising out of or relating to this Agreement or our relationship. All disputes and controversies arising out of or relating to this Agreement or our relationship must be resolved in the state courts in the city, county located in the Republic of Ireland, and each of us irrevocably consents to the exclusive venue and personal jurisdiction of those courts for the resolution of such disputes and waives all objections thereto. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PARTIES’ RELATIONSHIP.

 

25. INTELLECTUAL PROPERTY. Except for the rights provided in this Section 26, this Agreement does not convey to either of us any ownership right or license to use, sell, exploit, copy or further develop the other party’s Confidential Information (as defined in Section 34) or intellectual property, including patents, copyrights, trademarks, trade names and trade secrets. We have the exclusive right and title to any intellectual property developed by us during and in connection with providing the Cloud Services to you. (a) K² Cloud Engineering CONTENT. The Cloud Services may include various utility and deployment scripts, customizations to templates, code extending the functionality of third-party applications licensed to us, printed and electronic Documentation, and other data that we have or may develop at our own expense before and during the Term (the “K² Cloud Content”). Subject to your compliance with this Agreement, we grant to you a limited, non-exclusive, non-transferable, worldwide, royalty-free license to use K² Cloud Content during the Term solely to access and use the Cloud Services in accordance with the terms and conditions of this Agreement. You may not translate, reverse engineer, decompile, disassemble, rent, lease, assign, transfer, redistribute, or sublicense any K² Cloud Content. (b) K² Cloud Engineering TRADEMARKS. Subject to our prior written approval as to form, content, use, and appearance, you may only use our trademarks, service marks, service or trade names, logos, and other designations in accordance with any trademark guidelines that we may publish on the Cloud Services Website from time to time.

 

 

26. RELATIONSHIP OF THE PARTIES. We on one hand, and you on the other, are each independent parties. This Agreement and any transaction under it does not create an agency, joint venture, or partnership between us and you. We do not have a landlord-tenant relationship with you, and we are not your bailee or warehouseman with respect to any data or Content. You have no right to access our premises or data centers and no right to possess or own any IP address, software, server hardware or other equipment included in the Cloud Services.

 

27. IP ADDRESSES. Any public or private IP address allocated for you to use as a part of the Cloud Services will remain allocated to you until (i) you release the IP address using the Cloud Services portal; (ii) your Cloud Services are terminated for any reason; or (iii) we decide to change any IP address, which we may do at any time and in our sole discretion by providing you with five (5) days’ prior notice of the change in accordance with the notice provisions in Section 28 below. Upon termination of this Agreement, you may no longer use any IP addresses or address blocks that we provided for your use in connection with the Cloud Services.

 

28. NOTICES. (a) FROM US. Except as otherwise provided herein, notices we send to you under this Agreement must be sent by email to the email address included in your Cloud Services profile at the time we send our notice. You are responsible for keeping your email address current and accurate at all times. Any notice we send to the then-current email address in your Cloud Services profile will be deemed to be received when it is sent even if you do not actually receive it. (b) FROM YOU. Except as otherwise provided herein, notices you send to us under this Agreement must be in writing and sent at your own cost either (i) by email to billing@k2cloud.ie. or (ii) by certified mail, return receipt requested, or nationally recognized courier (e.g., FedEx or U.P.S.) with a signature required to the following address:

K² Cloud Engineering Limted 3 Beechwood Drive Termon Abbey Drogheda Co Louth Ireland

(c) WHEN EFFECTIVE. A notice under this Agreement is effective when received. An email notice under this Agreement will be deemed received when sent. All other notices will be deemed received when signed for as indicated by the signed delivery receipt.

 

29. REPRESENTATIONS. You represent and warrant to us that (i) the information you provide in connection with your registration for Cloud Services is accurate and complete; (ii) no Content on the Cloud Servers is illegal, defamatory, malicious, harmful, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iii) you accurately and adequately disclose how you collect and treat data collected from visitors to any Website or users of any Application on the Cloud Servers; (iv) your use of the Cloud Services will comply with all applicable laws, rules and regulations; (v) you will not attempt to circumvent or disable any of the security-related, management, or administrative features of the Cloud Services; (vi) you have obtained all consents and licenses required for both of us to legally access and use all software you place on the Cloud Servers without infringing any ownership or intellectual property rights; (vii) the execution and delivery of this Agreement will not conflict with or violate any provision of your charter, by-laws or other governing documents; and (viii) you have otherwise taken all necessary steps to legally execute this Agreement.

 

30. NEUTRAL INTERPRETATION. This Agreement will be construed and interpreted in a neutral manner. No rule of construction or interpretation will apply against either you or us.

 

31. FORCE MAJEURE. If the performance of any part of this Agreement, other than the payment of money, is prevented or delayed by reason of an act of God, act of war, act of terrorism, fire, governmental action, labor dispute or other cause beyond the performing party’s control, then that party will be excused from performance for the length of that prevention or delay.

 

32. CONFIDENTIALITY. If the parties have entered into a separate agreement that includes restrictions on the use or disclosure of confidential information, such as a separate Master Service Agreement for managed services, and one of confidentiality provisions conflicts with a confidentiality provision in this Agreement, the provision that affords a greater level of protection to the disclosing party will control and be enforced to the maximum extent permitted by law. (a) CONFIDENTIAL INFORMATION. As used in this Agreement, “Confidential Information” means (i) with respect to us, server configurations, software configurations, proprietary information, proprietary technology, proprietary software, audit reports, information regarding product development, information regarding K² Cloud’ datacenters, and information contained in manuals, proposals or memoranda; (ii) with respect to you, non-public Content transmitted to or from, or stored on, the Cloud Servers; and (iii) with respect to both of us, information that is conspicuously marked as “confidential” or “proprietary,” information disclosed verbally that is designated as “confidential” or “proprietary” at the time of disclosure, and information that, by its nature, would reasonably be considered as confidential to any other person, firm or corporation. (b) EXCLUSIONS. Confidential Information does not include (i) information that is independently developed by a non-disclosing party without the use of the disclosing party’s Confidential Information as shown by the non-disclosing party’s written business records; (ii) information that is known by a non-disclosing party prior to disclosure by the disclosing party as shown by the non-disclosing party’s written business records; or (iii) information that is or becomes generally available to the non-disclosing party or the public other than through a violation of this Agreement. (c) RESTRICTIONS ON USE AND DISCLOSURE. A party shall not disclose the other party’s Confidential Information except (i) on a need-to-know basis, to its agents, employees and representatives who are bound by confidentiality restrictions at least as stringent as those stated in this Agreement; or (ii) as required by law, governmental regulation or requirement, court order, or subpoena, in which case and subject to applicable law, the non-disclosing party shall provide prompt notice to the disclosing party so that the disclosing party may seek a protective order or other appropriate remedy. A party shall not use Confidential Information except as required to perform its obligations under this Agreement. (d) STANDARD OF CARE. Each party shall use the same degree of care to protect the other party’s Confidential Information that it uses to protect its own highly confidential information from unauthorized disclosure, but in no event shall either party use less than a commercially reasonable degree of care. The non-disclosing party shall notify the disclosing party promptly upon its discovery of any unauthorized use or disclosure of Confidential Information by the non-disclosing party’s employees, representatives, or agents, and will use commercially reasonable efforts to cooperate with the disclosing party to regain possession of all Confidential Information and to prevent any further unauthorized use or disclosure.

 

33. ASSIGNMENT; RESALE; BINDING EFFECT. You may not assign this Agreement or resell the right to use the Cloud Services without our prior written consent. We may assign this Agreement at any time. This Agreement will be binding upon and inure to the benefit of all of our and your successors and assigns, who will be bound by all of the obligations of their predecessors or assignors.

 

34. SUBCONTRACT. We may subcontract any portion of the Cloud Services to a third-party contractor, provided that we will remain fully responsible to you for the Cloud Services pursuant to this Agreement. Any subcontractor will be deemed to be an independent contractor and not our partner, agent, or employee. We may collect and report anonymous information regarding your use of the Cloud Services to our subcontractors, licensors or suppliers as required to provide you with the Cloud Services.

 

 

35. DEFINITIONS. (a) “Application” means software that performs a specific task, as opposed to an operating system, which runs a computer or server. (b) “Business day” means Monday through Friday, except Irish state or Bank holidays. (c) “Cloud Server” means an unmanaged Virtual Server that is running on the Infrastructure. (d) “Documentation” means any written materials that we may provide to you regarding or relating in any way to the Cloud Services, including any printed or digital materials. (e) “Infrastructure” means the datacenters, security devices, cables, routers, switches, hosts, compute nodes, physical servers, and other equipment that we use to host Virtual Servers. (f) “Virtual Server” means one of any number of isolated server emulations running on a single physical server located on the Infrastructure.

 

36. MISCELLANEOUS. The headings in this Agreement are solely for convenience of reference and will not affect its interpretation. This Agreement does not create any third-party beneficiary rights. If any term, provision, covenant, or condition of this Agreement is held invalid or unenforceable in a valid legal proceeding, that term or provision may be modified only to the extent necessary for enforcement, that term or provision will be enforced to the maximum extent permitted by law, and the rest of this Agreement will remain in full force and effect and will in no way be affected or invalidated. No waiver of any provision of this Agreement will be effective unless in writing signed by the waiving party, and no delay or failure to exercise or enforce any right or remedy hereunder will constitute a waiver of that right or remedy. Express waiver of any right or remedy in a particular instance will not constitute a waiver of that right or remedy in any other instance, or a waiver of any other right or remedy. The word “including” is a term of expansion, not limitation. Unless otherwise indicated, all references to a day are references to a calendar day and all references to a time of day are references to the time in Ireland

 

37. SCOPE OF AGREEMENT; ENTIRE AGREEMENT. This Agreement constitutes the final and entire agreement between the parties regarding its subject matter, and it supersedes all other oral or written agreements or policies relating thereto. If there is a conflict between or among any of the parts of this Agreement, they will govern in the following order: an addendum signed by both parties, the Cloud Services Agreement, the AUP, the Responsibility Matrix, and the Privacy Policy. Additional or different terms in any written communication from you, including any purchase order or request for Cloud Services, are void.

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