Cloud Services Terms of Service
Cloud Services Terms of Service
Last Modified: December 6, 2021
This Cloud Services terms of services Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and iodyne, LLC (“Provider,” “we,” or “us”). This Agreement governs Customer’s access to and use of the Cloud Services.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “SIGN UP” BUTTON OR BY ACCESSING OR USING THE CLOUD SERVICES (the “Effective Date”). BY CLICKING ON THE “SIGN UP” BUTTON OR BY ACCESSING OR USING THE CLOUD SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “SKIP” OR “CANCEL” BUTTON. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
For the purposes of this Agreement:
“Authorized Users” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Cloud Services under the rights granted to Customer pursuant to this Agreement and/or (ii) for whom access to the Cloud Services has been purchased hereunder.
“Cloud Services” means the services provided by Provider under this Agreement that are detailed on Provider’s website available at iodyne.com.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Cloud Services.
“Documentation” means Provider’s user manuals, handbooks, and guides relating to the Cloud Services provided by Provider to Customer either electronically or in hard copy form and end user documentation relating to the Cloud Services available at help.iodyne.com.
“Provider IP” means the Cloud Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP Includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Cloud Services, but does not include Customer Data.
“Storage Device” means physical devices sold by Provider that may be attached to a computer and used to store data.
“Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Cloud Services.
“Website” means the website controlled by Provider and located at iodyne.com.
- Access and Use.
- Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all terms and conditions of this Agreement, Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term solely for Customer’s internal business operations by Authorized Users in accordance with the terms and conditions herein.
- Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for Customer’s internal business purposes in connection with use of the Cloud Services.
- Software for Using Cloud Services. Use of the Cloud Services may require or include use of software. Provider also provides this software on a Storage Device or it may be downloadable through Provider’s Website. Customer’s use of the software is governed by a separate agreement.
- Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Cloud Services, any software component of the Cloud Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:
- copy, modify, or create derivative works of the Cloud Services, any software component of the Cloud Services, or Documentation, in whole or in part;
- rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services or Documentation except as expressly permitted under this Agreement;
- reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part;
- remove any proprietary notices from the Cloud Services or Documentation; or
- use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
- Collected Data and Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Customer agrees that Provider may monitor Customer’s use of the Cloud Services and collect and compile data and information related to Customer’s use of the Cloud Services to be used by Provider (“Collected Data”) in order to ensure that the Customer is not in violation of this Agreement. Further, the Collected Data may be complied in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Cloud Services (“Aggregated Statistics”). As between Provider and Customer, all right, title, and interest in the Collected Data (excluding any Customer Data) and Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge that Provider may compile Aggregated Statistics based on Customer Data input into the Cloud Services. You agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer Data.
- Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Cloud Services if:
- provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any other Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer or any other Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Cloud Services to Customer or any other Authorized User is prohibited by applicable law;
- any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Cloud Services; or
- in accordance with Section 4 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”).
- Notice and Resumption of Service. Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Cloud Services Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
- Customer Responsibilities.
- Acceptable Use Policy. Customer agrees not to, and not to allow third parties to use the Cloud Services:
- to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing Authorized Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act);
- to engage in, promote or encourage illegal activity;
- for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
- to interfere with the use of the Cloud Services, or the equipment used to provide the Cloud Services, by customers, authorized resellers, or other authorized users;
- to disable, interfere with or circumvent any aspect of the Cloud Services;
- to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations; or
- to use the Cloud Services, or any interfaces provided with the Cloud Services, to access any other product or service provided by Provider in a manner that violates the terms of service of such other product or service.
- Account Use. Customer is responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by Customer to Authorized Users, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Cloud Services and shall cause Authorized Users to comply with such provisions.
- Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Cloud Services to Customer. Customer will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data.
- Passwords and Access Credentials. Customer is responsible for keeping its passwords and access credentials associated with the Cloud Services confidential. Customer will not sell or transfer them to any other person or entity. Customer will promptly notify Provider about any unauthorized access to Customer’s passwords or access credentials.
- Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to Customer for acceptance within the Cloud Services by website link or otherwise. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products.
- Acceptable Use Policy. Customer agrees not to, and not to allow third parties to use the Cloud Services:
- Service Levels and Support.
- Service Levels. Unless there is a specific written agreement between the Provider and the Customer with respect to service levels, Provider does not provide any guarantee with respect to the availability of Cloud Services to Customer.
- Data Integrity. Provider will use commercially reasonable effort to safeguard Customer Data and prevent inadvertent disclosure of Customer Data to third parties not authorized to access Customer Data.
- Fees and Payment. Customer shall pay Provider the fees as described on Provider’s website at iodyne.com (“Fees”) prior to the Effective Date and prior to each subsequent renewal for the Cloud Services. Customer shall make all payments hereunder in US dollars (or in any other currency that is mutually agreed upon by the Provider and Customer) on or before the due dates for service initiation and renewal. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income. Provider may suspend service to Customer if Customer fails to pay Fees in accordance with this Section.
- Intellectual Property Ownership; Feedback. As between Customer and Provider, (a) Provider owns all right, title, and interest, including all intellectual property rights, in and to the Cloud Services and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. If Customer or any of Customer’s employees, contractors, or agents sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cloud Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between Customer and Provider governing such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby assigns to Provider on Customer’s behalf, and shall cause Customer’s employees, contractors, and agents to assign, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
- Limited Warranty and Warranty Disclaimer.
- Provider warrants that the Cloud Services will conform in all material respects to the Service Levels when accessed and used by Customer in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Cloud Services unless specifically identified in the Service Levels. The remedies set forth in the Service Levels are Customer’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 9(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE CLOUD SERVICES ARE PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; or (ii) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Cloud Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PROVIDER BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF OR INABILITY TO USE THE CLOUD SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER. In no event shall Provider’s total liability to Customer for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00) or the total amounts paid to Provider under this Agreement in the twelve (12) month period preceding the event giving rise to the claim, whichever is greater. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
- Term and Termination.
- Term. The term of this Agreement begins on the Effective Date and continues until terminated. Cloud Services are specified to automatically renew unless earlier terminated pursuant to this Agreement’s express provisions.
- Termination. In addition to any other express termination right set forth in this Agreement:
- Provider may terminate this Agreement, for any reason and at any time.
- This Agreement automatically terminates after the Initial Term and after all subsequent Renewal Terms.
- Initial Term and Renewal Terms. The Initial term and Renewal Terms are specified by the fee schedule available at iodyne.com.
- Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and Provider may remove Customer Data from the Cloud Service. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
- Survival. The parties’ obligations under Sections 7, 8, 9, 14, 15, and 18 will survive termination of this Agreement.
- Modifications. Customer acknowledges and agrees that Provider has the right, in Provider’s sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Customer will be notified of modifications through notifications or posts on iodyne.com. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms.
- Export Regulation. The Cloud Services utilize software and technology may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Cloud Services or the software or technology included in the Cloud Services to, or make the Cloud Services or the software or technology included in the Cloud Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable US federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Cloud Services or the software or technology included in the Cloud Services available outside the US.
- US Government Rights. Each of the software components that constitute the Cloud Services and the Documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Cloud Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
- Choice of Law and Venue. Except to the extent expressly provided in the following paragraph (a), this Agreement and the relationship between Customer and Provider shall be governed by the laws of the State of California, excluding its conflicts of law provisions. Customer and Provider agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California, to resolve any dispute or claim arising from this Agreement. If (i) Customer is not a U.S. citizen; (ii) Customer does not reside in the U.S.; and (iii) Customer is a citizen in one of the countries identified below, Customer hereby agrees that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and Customer hereby irrevocably submits to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:
- If Customer is a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of the usual place of residence.
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.
- Class Action Waiver. CUSTOMER AND PROVIDER WAIVE THE RIGHT TO LITIGATE IN COURT ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.
- Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent, which consent Provider may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Provider’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16 is void. Provider may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this agreement without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Notices. Except for those methods set forth elsewhere in this Agreement, all notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
Notices may be addressed to Provider at: 35 Miller Avenue, #175, Mill Valley, CA, 94941, USA.
- Entire Agreement. This Agreement and the other documents explicitly referenced herein constitute the sole and entire Agreement between Customer and Provider with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- No Third Party Beneficiary. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.