1. Definition of Terms
1.1. Your use of the CycleCloud service (the "Service") is governed by this agreement (the "Terms"). "CycleCloud" means Cycle Computing, LLC., and its subsidiaries or affiliates involved in providing the Service. The Terms form a legally binding agreement between you and, if applicable, the company or legal entity you represent, and CycleCloud in relation to your use of the Service. It is important that you take the time to read them carefully.
2. Acceptance of Terms
2.1. In order to use the Service, you must first agree to the Terms. You may not use the Service if you do not accept the Terms. You understand and agree that CycleCloud will treat your use of the Service as acceptance of the Terms from that point onwards.
2.2. If you are entering into the agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the legal entity to this agreement, in which case "You" shall refer to such entity. If you do not have such authority, or if you do not agree with the terms and conditions you may not use the Service.
2.3. You may not use the Service and may not accept the Terms if (a) you are not of legal age to form a binding contract with CycleCloud, or (b) you are a person barred from receiving the Service under the laws of the United States or other countries including the country in which you are resident or from which you use the Service.
2.4. It is suggested that you print or save a local copy of the Terms for your records.
3. Your Account and Use of Service
3.1. You must provide accurate and complete registration information any time you register to use the Service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify CycleCloud immediately.
3.2. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
3.3. You agree not to engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).
3.4. Unless you have been specifically permitted to do so in a separate agreement with CycleCloud, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Service for any purpose.
3.5. You are fully responsible for all activities that occur on your account, regardless of whether such activities are undertaken by you or a third party. Therefore, you should contact us immediately if you believe a third party may be using your account credentials. You are responsible for maintaining up-to-date and accurate information (including contact information) for your AWS account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, your Content, your Data or your Applications, or other data which you submit or use in connection with your account or the Service.
4. Privacy
4.1. The Service shall be subject to the privacy policy for the Service which is available at http://my.cyclecloud.com/privacy/. You agree to the use of your data in accordance with CycleCloud's privacy policies.
4.2. CycleCloud shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
4.3. Since CycleCloud uses Amazon Web Services your Content, Data and Applications are subject to Amazon's privacy policy as well. That policy is located at http://aws.amazon.com/privacy/.
5. Payment
5.1. CycleCloud uses a prepayment system for use of the Service. You must have a positive account balance to continue use of the Service. If your account balance becomes negative you agree to pay any applicable fees. A negative account balance may cause termination of Service and may result in loss of Content, Data and Applications.
5.2. In consideration of your use of any of the Service, you agree to pay applicable fees for the Service in the amounts set forth on the Service detail page. Fees for any new Service or new Service feature will be effective upon posting by us on the CycleCloud Website for the applicable Service. We may increase or add new fees by giving you 30 days' advance notice. Such notice will be posted on the CycleCloud Website on the Service detail page for the affected Service. You agree that you are responsible for checking the CycleCloud Website each month to confirm whether there are any new fees and their effective date(s).
5.3. In the case of account cancellation or termination, the remaining account balance after all applicable fees have been removed will be refunded to you. Refunds may take over a month to apply due to the account billing process.
5.4. We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
6. Proprietary Rights
6.1. You acknowledge and agree that CycleCloud (or CycleCloud's licensors) own all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
6.2. Unless you have agreed otherwise in writing with CycleCloud, nothing in the Terms gives you a right to use any of CycleCloud's trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
6.3. Except as provided in Section 8, CycleCloud acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or the Application that you create, submit, post, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with CycleCloud, you agree that you are responsible for protecting and enforcing those rights and that CycleCloud has no obligation to do so on your behalf.
6.4. The rights granted by CycleCloud in this Agreement with respect to the Properties, the Marks and the Service are nonexclusive, and CycleCloud reserves the right to: (i) itself act as a developer of products or services related to any of the products that you may develop in connection with the Properties or via your use of the Service; (ii) utilize any residual knowledge gained from consulting to implement calculation workflows for you or any other client; and (iii) appoint third parties as developers or systems integrators who may offer products or services which compete with CycleCloud or your Application. Given the rights above, CycleCloud agrees to not reverse engineer your application software or scripts, for the purposes of offering competing services or software.
7. License from CycleCloud and Restrictions
7.1. CycleCloud gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by CycleCloud as part of the Service as provided to you by CycleCloud (referred to as the "CycleCloud App" below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by CycleCloud, in the manner permitted by the Terms. You acknowledge that we may change, deprecate or republish APIs and that it is your responsibility to ensure that calls you make to the Service are compatible with then-current APIs for the Service. You further acknowledge that we may change or remove features or functionality of the Service at any time.
7.2. You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the CycleCloud App or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by CycleCloud, in writing (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the Service or any Application; (c) use the Service to create an Application that performs a malicious activity, including but not limited to spamming users, harvesting usernames and passwords, performing unauthorized scans of machines or ports or creating DoS attacks; or (d) upload or otherwise process any malicious content to or through the Service.
7.3. Unless CycleCloud has given you specific written permission to do so (e.g., through an open source software license), you may not assign (or grant a sub-license of) your rights to use the CycleCloud App Software, grant a security interest in or over your rights to use the CycleCloud App Software, or otherwise transfer any part of your rights to use the Software.
7.4. Subject to the terms and conditions of this Agreement, you may generally publicize your use of the Services; however, you may not issue any press release with respect to the Services or this Agreement without our prior written consent.
7.5. CycleCloud uses Amazon Web Services. You agree to uphold Amazon's Web Services License Agreement to whatever extent it applies to your usage of Amazon and CycleCloud. The Amazon AWS Customer Agreement can be found at http://aws.amazon.com/agreement/ and Amazon's Conditions of Use can be found http://www.amazon.com/gp/help/customer/display.html?nodeId=508088.
8. License from You
8.1. CycleCloud claims no ownership or control over any Content, Data or Application which you submit or load on the Service. You retain copyright and any other rights you already hold in the Content, Data and/or Application, and you are responsible for protecting those rights, as appropriate. Furthermore, by running an Application through use of the Service, you give CycleCloud a worldwide, royalty-free, and non-exclusive license within the confines of privacy and security, to execute, reproduce, adapt, distribute and otherwise adjust the run-time code for the sole purpose of enabling CycleCloud to provide you with the Service.
8.2. By using CycleCloud, you give electronic, written permission to Cycle Computing to have authority to solely use the name of Licensee as a customer of Cycle Computing in a list of customers in Cycle Computing's promotional materials, including Cycle Computing’s filings with public agencies. Neither you or Cycle Computing will issue any press releases or engage in any other promotional activities, other than the foregoing, that identify the other party without obtaining such other party's prior written approval which is not to be unreasonably withheld; provided, that either party may at any time reiterate any information contained in any jointly issued or previously approved press release or promotional material by either party.
9. Software Updates
9.1. The Software which you use may be upgraded with new features and tools from time to time by CycleCloud. These updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit CycleCloud to deliver these to you) as part of your use of the Service.
10. Termination of Service
10.1. You may discontinue your use of the Service at any time.
10.2. CycleCloud may, at any time, terminate your use of the Service if (A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms) or (B) CycleCloud is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful). Further, CycleCloud may terminate your use of the Service for any reason with thirty (30) days prior written notice.
10.3. Upon our suspension of your use of Service, in whole or in part, for any reason, (i) fees will continue to accrue for the Service that is still in use by you; (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Service; and (iii) all of your rights with respect to the applicable Services shall be terminated during the period of the suspension.
10.4. Upon termination of this Agreement for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all of your rights under this Agreement shall immediately terminate; and (iii) you shall immediately return, or if instructed by us, destroy all CycleCloud Confidential Information and any CycleCloud Properties then in your possession.
11. Downtime and Security
11.1. In addition to our rights to terminate or suspend Service to you, you acknowledge that: (i) your access to and use of the Service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Service for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Service at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). We shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension and to post updates on the CycleCloud Websites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
11.2. We strive to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content and Applications. We strongly encourage you, where available and appropriate, to (a) use encryption technology to protect Your Content from unauthorized access, (b) routinely archive Your Content, and keep your Applications or any software that you use or run with our Service current with the latest security patches or updates. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Content or Applications.
12. EXCLUSION OF WARRANTIES
12.1. NOTHING IN THESE TERMS, SHALL EXCLUDE OR LIMIT CYCLECLOUD'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
12.2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE."
12.3. CYCLECLOUD, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CYCLECLOUD, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.
13. LIMITATION OF LIABILITY
13.1. SUBJECT TO SECTION 12.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT CYCLECLOUD, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHERF INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
13.2. THE LIMITATIONS ON CYCLECLOUD'S LIABILITY TO YOU IN PARAGRAPH 13.1 ABOVE SHALL APPLY WHETHER OR NOT CYCLECLOUD HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
14. Indemnification
14.1. You agree to hold harmless and indemnify CycleCloud, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively "CycleCloud and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Service, (c) your violation of applicable laws, rules or regulations in connection with the Service, or (d) your Content, Data or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, CycleCloud will provide you with written notice of such claim, suit or action.
15. Changes to the Terms
15.1. CycleCloud may make changes to the Terms from time to time. When these changes are made, CycleCloud will make a new copy of the Terms available at http://my.cyclecloud.com/tos/.
15.2. You understand and agree that if you use the Service after the date on which the Terms have changed, CycleCloud will treat your use as acceptance of the updated Terms.
15.3. You irrevocably agrees to accept all notices, of whatever nature, legal or otherwise, by electronic mail or other digital delivery system at the discretion of CycleCloud for any matter or any proceeding for which notice is required. This includes updates to the terms of this agreement.
16. General Legal Terms
16.1. The Terms constitute the whole legal agreement between you and CycleCloud and govern your use of the Service (but excluding any services which CycleCloud may provide to you under a separate written agreement), and completely replace any prior agreements between you and CycleCloud in relation to the Service.
16.2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
16.3. If CycleCloud provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
16.4. You agree that CycleCloud may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.
16.5. You agree that if CycleCloud does not exercise or enforce any legal right or remedy which is contained in the Terms (or which CycleCloud has the benefit of under any applicable law), this will not be taken to be a formal waiver of CycleCloud's rights and that those rights or remedies will still be available to CycleCloud.
16.6. CycleCloud shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
16.7. The Terms, and your relationship with CycleCloud under the Terms, shall be governed by the laws of the State of Connecticut without regard to its conflict of laws provisions. You and CycleCloud agree to submit to the exclusive jurisdiction of the courts located within the county of Hartford to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that CycleCloud shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.