Terms

CLOUD DADDY TERMS AND CONDITIONS

1. These Terms and Conditions(“Terms and Conditions”) are a legal agreement between you individually, or if you are authorized to acquire Cloud Daddy’s products, software or access and/or use our services and any and all enhancements, modifications, revisions and/or new versions thereof (collectively, “Products,” “our Products” or “Product”) on behalf of your company or another organization between the entity for whose benefit you act and/or if you are a reseller of Cloud Daddy’s Products (in all instances, “you” or “yours”) and Cloud Daddy (“we,” “us,” “our,” or “Cloud Daddy”). Cloud Daddy means Cloud Daddy, Inc., 174 Nassau Street, Suite 230, Princeton, NJ 08542, USA. These Terms and Conditions govern your purchase or resale of our Products in any manner, including via our website www.CloudDaddy.com and Amazon Web Services (AWS) Marketplace https://aws.amazon.com/marketplace/. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU CONFIRM THAT YOU ARE OVER 18 AND ARE LAWFULLY ABLE TO ENTER INTO AND FORM CONTRACTS. BY USING OUR PRODUCTS, CLICKING THE “I AGREE”, “ACCEPT” OR “YES” BUTTON, LOADING THE PRODUCTS OR OTHERWISE INDICATING ASSENT, YOU ARE AGREEING TO THESE TERMS AND CONDITIONS, AND ANY RELATED TERMS (AS EXPLAINED BELOW), WHICH WILL BECOME A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND CLOUD DADDY. PLEASE READ THESE TERMS AND CONDITIONS AND ANY APPLICABLE TERMS CAREFULLY AND MAKE SURE YOU UNDERSTAND BEFORE YOU AGREE TO THEM. The “Cloud Daddy Product End User License Agreement and Terms of Use” (“Terms”) is available on www.CloudDaddy.com, which may apply to our Products and apply in addition to, and supplement the provisions of, these Terms and Conditions. If the Terms apply to our Products, in the case of a conflict between these Terms and Conditions and the Terms, the provisions of the Terms shall govern. Some of our Products may come with additional product information (“Product Information Sheet”) and/or written materials, in electronic form, describing the features of a particular Product.

2. YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS

Any presentation of Cloud Daddy’s Products on the internet, in prospectuses, catalogues and brochures is for informational purposes only and shall not provide an express or implied warranty nor any binding offer from Cloud Daddy but, rather, shall constitute an opportunity for you to learn information and prepare to make a binding contractual offer in the form of an order. A legally binding agreement between you and Cloud Daddy will be concluded only if you place an order and Cloud Daddy accepts such order by way of a written order confirmation or by providing one or more Products to you (e.g. per download or by provision of a login).

If you are entitled to withdraw from or terminate our agreement based on any applicable statutory withdrawal right and should you exercise this right within the relevant statutory period, the applicable Terms will terminate at the same time. In case of such withdrawal or termination, we will refund you any fee you paid for a respective license associated with a particular Product (“Fee”) pursuant to any applicable statutory provisions.

3. RESTRICTIONS AND RESPONSIBILITIES

You shall not remove, obscure or alter any labels or proprietary notices (including copyright notices) affixed to or contained within any Services; not directly or indirectly attempt to copy, duplicate, modify, convert, create derivative works from or distribute all or any portion of any Software (except to the extent expressly set out in these Terms or allowed by any applicable law which is incapable of exclusion by agreement between the parties); not directly or indirectly attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (except as allowed by any applicable law which is incapable of exclusion by agreement between the parties); and not interfere with our Services or try to access them (or any part of them) by using a method other than the interface and the instructions we provide.

Using our software of services does not give you ownership of any copyright or other intellectual property rights in or to the services, or any part of the Software. Cloud Daddy grants to you a limited, revocable, non-exclusive, non-transferable and non-sublicense-able license to access and use the Services in accordance with these Terms.

The software interface operates in conjunction with services provided by Cloud Computing Providers as approved by Cloud Daddy from time to time, including AWS. It is hereby agreed that those services offered by Cloud Computing Providers do not form part of the Services and are owned and operated by the applicable Cloud Computing Provider; you will be responsible for obtaining and maintaining access to any services offered by Cloud Computing Providers; your use of services offered by Cloud Computing Providers is subject to the relevant Cloud Computing Providers’ fees and terms of use. You are responsible for payment of such fees to each Cloud Computing Provider and for compliance with all then current terms and conditions of the Cloud Computing Provider; the full functionality and benefits of the Services may not be available to you if you elect to use services offered by Cloud Computing Providers that are not approved by Cloud Daddy; by providing any access APIs, codes, passwords or access keys for services offered by Cloud Computing Providers to us, you authorize Cloud Daddy to access any of your applications and infrastructure of a Cloud Computing Provider for the purpose of providing the services to you. We do not provide any warranties as to the security of a Cloud Computing Providers’ systems to keep the access codes, passwords or keys secure; any activity on your account with any Cloud Computing Provider shall remain your sole and exclusive responsibility and that Cloud Daddy shall not be responsible for any activities on your Cloud Computing Provider’s account, by using the Services; and services offered by Cloud Computing Providers may change, become obsolete or unavailable from time to time. We do not provide any warranties or guarantees in relation to services offered by Cloud Computing Providers used by you and it is your responsibility to conduct due diligence as to the suitability of the services offered by Cloud Computing Provider’s suitability to meet your needs. To the extent allowed by law, we disclaim all liability in relation to and arising out of the access or use of services offered by Cloud Computing Providers. In connection with your use of the software and related services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications. For more information, please see our Privacy Policy.

4. CHANGES TO THIS AGREEMENT

Cloud Daddy reserves the right to change, update, amend or modify these Terms and Conditions at any time. Such modification, updates and/or amendments will be effective immediately and incorporated into this Agreement. Your continued use of our Web Shop will be deemed acceptance of the amended Terms and Conditions.

5. PRIVACY AND COLLECTION OF PERSONAL INFORMATION

When you accept these Terms, you also agree that our privacy policy then-existing at www.CloudDaddy.com applies to you and that you allow us and, as applicable, our Product providers to collect, transfer, backup and store your Personal Data and other data pursuant to the terms of the privacy policy. Please review our privacy policy on a regular basis as it will provide you with the most up to date information with respect to how we collect, store and use your data.

6. REQUIRED DISCLOSURES OF INFORMATION

You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (i) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures; (ii) enforce these Terms and Conditions; (iii) respond to claims of a violation of the rights of third parties, whether or not the third party is a registered user, individual, or government agency; (iv) respond to customer service inquiries; or (v) protect the rights, property or personal safety of Cloud Daddy, our users or the public.

7. UNAUTHORIZED USE

Cloud Daddy reserves all rights to bring an action to prohibit or stop any unauthorized use of products. If you do not comply with the applicable law and/or these Terms and Conditions, we may be forced to bring an action to collect damages and/or prohibit your behavior or stop you from any unauthorized use of our products. Some unlawful activity may even result in criminal prosecution under relevant law. Please comply with the law and these Terms and Conditions.

8. THIRD PARTY LINKS

Linked third party websites are not under our control and, as such, we cannot assume responsibility for the content of such links. We review the contents of such external links before linking to the best of our abilities; however, we cannot reasonably ensure permanent control of third-party websites. As soon as we become aware of an infringement on the part of a linked website, we will remove the link without undue delay.

9. AUTOMATIC RENEWAL

When you purchase or obtain access to any of our Products, you are granted a license to each respective Product for a particular term (“License Term”) (please see the Terms at www.CloudDaddy.com for more information). Unless one of us terminates our relationship, at least 30 days prior to the end of a current License Term, the License Term will be renewed for an additional License Term, automatically, at the then-effective list price. The new License Term will have the same duration as the previous License Term.

10. PROVISIONS FOR RESELLERS

The following terms will apply if Cloud Daddy provides you its Products expressly for the purpose of resale and, as such, you become a reseller of our Products (“Reseller”).

As a Reseller, you may resell Product licenses Cloud Daddy grants you to a third party. In the event of a resale, you will report the AWS customer information, serial numbers Cloud Daddy issues (e.g. License numbers, One-Time Codes,etc.) on the invoice you submit to Cloud Daddy.

As a Reseller, you shall not grant third parties any rights that are different from, or greater than, those permitted pursuant to these Terms and Conditions and the respective Product Terms.

You are responsible for obtaining and paying for any necessary official permits for the resale, transport, purchase and use of the Product(s) in your contractual territory.

11. PRODUCT DELIVERY

Cloud Daddy's delivery obligations, with respect to our Products, will be governed by these Terms and Conditions and the respective Terms unless expressly agreed to otherwise between the parties in writing. Cloud Daddy may render a partial delivery where such delivery is commercially reasonable and does not significantly impair your needs.

The actual delivered Product may differ from the documentation associated with such product if such differences are commercially reasonable and do not adversely affect the performance of the respective Product. If you order a particular Product and we replace the Product you ordered with a new or upgraded Product in our overall Product line, we reserve the right to deliver the new Product if such new Product performs as well as or better than the Product you ordered.

Product delivery is completed via download from AWS and the risk for damage and loss will pass to you as soon as you receive access to the respective Product.

 

12. REMUNERATION AND PAYMENT TERMS

Unless expressly agreed otherwise, you will be responsible for payment terms through AWS. Payment for our Products, at the agreed-upon or advertised price, is due immediately through AWS. The payment methods either explicitly referenced within the AWS Marketplace or on the relevant invoice for your purchase shall apply.

If you default on paying AWS and Cloud Daddy for our Products, we may demand the agreed-upon or statutory default interest for all outstanding sums without further notice. In addition, in the event of default, Cloud Daddy may withhold delivery of our Product along with any respective updates and/or upgrades (as defined in the Terms).

13. INDEMNITY

To the extent permitted by law, you agree to defend, indemnify and hold Cloud Daddy, its affiliates, subsidiaries, directors, officers, employees, agents, business partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your use of our products in violation of these Terms and Conditions; or (b) your violation of any rights of a third party or (c) your knowing violation of any applicable laws.

14. WARRANTIES AND DISCLAIMERS

EXCEPT FOR THE LIMITED WARRANTY THAT MAY APPLY TO SOME OF OUR PRODUCTS, AND/OR PARTICULAR PARTS THEREOF, OUR PRODUCTS ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. WE ALSO EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES RELATING TO NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY OR ABILITY TO INTEGRATE A PARTICULAR PRODUCT WITH OTHER WEB SERVICES. YOU ASSUME RESPONSIBILITY FOR SELECTING A PARTICULAR PRODUCT TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM SUCH PRODUCT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT OUR PRODUCTS WILL PROTECT AGAINST ALL POSSIBLE THREATS, BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, THAT OUR PRODUCTS WILL MEET YOUR SPECIFIC REQUIREMENTS OR THAT OUR PRODUCTS ARE FIT FOR USE IN SPECIAL RISK AREAS.

15. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR DAMAGES FROM LOST PROFITS, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR NEGLIGENCE OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. TO THE EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR ANY DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND OUR OR A RESELLER’S AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES UNDER THESE TERMS EXCEED THE PRICE YOU PAID FOR THE PARTICULAR PRODUCT.

16. NOTIFICATION OF INFRINGEMENT

You must notify Cloud Daddy immediately if a third party asserts claims against you based on a claim that our products infringes the intellectual property rights of such third party. Should there be any such notification, whether in written documents or correspondence or in other form, you must provide these to Cloud Daddy without delay.

17. MISCELLANEOUS

The Terms and Conditions do not create any third-party beneficiary rights. If you do not comply with the Terms and Conditions and we do not take action right away, this does not mean we are giving up any rights that we may have (for example, our right to take action in the future). If it turns out that a particular term within these Terms and Conditions is unenforceable, this will not have any impact on any of the other terms. The laws of the State of New Jersey, without regard to its choice of law rules and under exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG), will apply to any disputes arising out of or relating to these Terms and Conditions. All claims between you and us will be litigated exclusively in the state or federal courts in New Jersey and you consent, and we consent, to personal jurisdiction in those courts.

A breach, whether threatened or actual, of these Terms and Conditions will cause us irreparable injury and such injury may not be quantifiable in monetary damages and we would not have adequate remedy at law. As such, we are entitled, in addition to all other available remedies, to seek and be awarded an injunction or other appropriate equitable relief for any breach of these Terms and Conditions, whether threatened or actual.

These Terms and Conditions or your use of our products do not create a joint venture, partnership, employment or agency relationship with us.

The following sections shall survive the termination of these Terms and Conditions: 4, 5, and 11 through 16.