CLEAR SKY TECHNOLOGIES, INC.
SERVERSUIT SUBSCRIPTION AGREEMENT
AND WARRANTY STATEMENT
NOTICE: PLEASE READ THIS DOCUMENT CAREFULLY. This Software-as-a-Service (“SaaS”) Subscription Agreement (“AGREEMENT”) defines and governs your use of CLEAR SKY TECHNOLOGIES, INC. (“Vendor”) Software and Services and includes WARRANTY DISCLAIMERS. Your acceptance of this AGREEMENT is an acknowledgement, representation and warranty that you have the full right and authority to enter into, execute, and perform obligations under this AGREEMENT, or that you have the authority to enter into and execute this AGREEMENT as an Authorized Representative of a business entity or corporate entity and to bind that business entity or corporate entity to perform obligations under this AGREEMENT by your acceptance, acknowledgment and representation.
TERMS AND CONDITIONS
“Authorized Representative” refers to any person duly authorized by a business entity or corporate entity (i.e. a “legal entity”) to enter into this AGREEMENT and to bind the legal entity to the terms and conditions herein.
“Customer” refers to any individual or legal entity, entering into and executing this AGREEMENT for purposes of use of Vendor’s Software and Services, where “use” is as defined by this AGREEMENT.
“User(s)” means Customer employees, representatives, consultants, contractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Vendor at Customer’s request).
“Documentation” refers to any related explanatory written materials or files including, without limitation, any end-user manual, specifications or other written materials provided to Customer for the Software and Services.
“Data Center” refers to a location from which Vendor’s Software and Services are provided and which provides full operations for Vendor’s server(s), application(s) and/or network functions. Equipment is owned by Data Center Provider and not by Vendor.
“Content” means the audio and visual information, documents, software, products, and services contained or made available to Customer in the course of using the Service, or other media with which this AGREEMENT is provided, including, without limitation, fonts, graphics, user-interfaces, Upgrades, updates, additions to, and any copies of the foregoing, provided to Customer by Vendor.
“Upgrades” refers to new versions, updates, and revisions of the Software and Services provided to Customer by Vendor.
“Use” refers to actions taken exclusively by Customer to access, and to enjoy and benefit from features and functionality of the Software and Services, subject to all restrictions set forth in this AGREEMENT.
“Customer Data” means any data, information, or material provided or submitted by Customer to the Service in the course of using the Service.
“Managed Server Data” means any data, information, or material NOT provided or submitted to Vendor by Customer but present on one or more servers accessed and/or managed through use of Vendor’s Software and Services.
“Managed Server” means any server accessed and/or managed by Customer using Vendor’s Software and Services and which contains Managed Server Data.
“Customer Login Information” means passwords, login names, pins, or other information used by Customer to login and access Vendor’s Software and Services. Customer Login Information is created during Customer registration.
“Effective Date” means the earlier of either the date first set forth above or the date Customer begins using the Service.
“Initial Term” means the initial period during which Customer is obligated to pay for the Service equal to the billing frequency selected by Customer during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter).
“Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“License Administrator(s)” means those Users designated by Customer who are authorized to purchase licenses online using Vendor’s Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer Customer’s use of the Service.
“License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s).
“Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this AGREEMENT (in the event of any conflict between the terms of this AGREEMENT and the terms of any such Order Form, the terms of this AGREEMENT shall prevail). Registration confirmation will be emailed to Customer upon completing of Order Form and provision of payment information.
“Vendor Technology” means all of Vendor’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Customer by Vendor in providing the Service.
“Service(s)” means the specific edition of Vendor’s online server management system suite and Dashboard, (i.e. ServerSuit Software), and/or other related services identified during the ordering process, developed, operated, and maintained by Vendor, accessible via https://serversuit.com or another designated website or IP address, or ancillary online or offline products and services provided to Customer by Vendor, to which Customer is being granted access under this AGREEMENT, including the Vendor Technology and the Content.
“Reverse Engineer” means i) the disassembly, decompilation, decryption, simulation, debugging or code tracing of microcode; and/or ii) the disassembly, decompilation, decryption, simulation, debugging or coded tracing of object code or executable code, specifically including, but not limited to, any Vendor supplied or developed libraries or microcode. Regarding any of Vendor’s software "Reverse Engineering" shall also mean iii) the act of producing computer program "source code" that, when compiled, will generate computer programs that provide the same, or similar functions as the Software, by means of translating the object code, or by translating computer binary instructions into equivalent programming language instructions, in assembly language or other computer programming language and/or scripts. This term is also intended to include the development of software that incorporates the methods, techniques, styles and approaches of the Software, while performing similar functions.
ServerSuit Software Overview
ServerSuit Software. Vendor provides Customer with an online server management system, ServerSuit Software, that enables remote administration and management of Linux servers. ServerSuit Software is provided to Customer as a SaaS. ServerSuit Software includes a multitude of tools and utilities and provides the ability to manage multiple servers from a single location using a web browser. The ServerSuit Software includes an intuitive graphical user interface and provides inter platform and inter device operability and portability. No software is installed locally on any managed server.
Security and Protection. The ServerSuit Software utilizes Secure Shell (SSH) for server connectivity and script execution, and HTTPS (i.e. HTTP (Hypertext Transfer Protocol) over TLS (Transport Layer Security)) for securely receiving script execution status and progress. Simple Network Management Protocol (SNMP) is also used to receive server status and resource utilization information from Managed Servers. All employed protocols utilize encryption and are secure.
Customer Registration, Login and Access. Customer can access Vendor’s Software and Services using Customer Login Information which is created during the Customer registration process.
Managed Server registration and SYSTEM account creation. After Customer registration is completed, Customer may add (i.e. register) Customer’s Managed Servers. Registration of Customer’s Managed Servers may be accomplished using either Automatic or Manual registration procedures.
Automatic registration. Customer must provide a Superuser account (i.e. root account) for Automatic registration. The ServerSuit Software requires the Superuser account to perform a one-time operation per new Managed Server in which the ServerSuit Software connects to the Managed Server to be registered and creates a “SYSTEM” account on the Managed Server. The ServerSuit Software then registers the new Managed Server and adds it to the Customer’s Managed Server cluster. The “SYSTEM” account is then subsequently used to access the Managed Server without the need for the Superuser account. The ServerSuit Software does not retain or store any information for the Superuser account, and does not use the Superuser account any further after completion of Automatic registration.
Manual registration. Vendor will provide Customer with a registration script for manual execution directly on the Managed Server to be added, using a Superuser account. The registration script performs the Managed Server registration, while Customer monitors the procedure and confirms registration either on the Managed Server or by viewing the ServerSuit Software dashboard. The registration script will create a “SYSTEM” account on the Managed Server to be added, register the Managed Server and add it to the Customer’s Managed Server cluster. The “SYSTEM” account is then subsequently used to access the Managed Server without the need for the Superuser account. The ServerSuit Software does not retain or store any information for the Superuser account, and does not use the Superuser account in any way whatsoever during Manual registration.
Customer may provide a Superuser account voluntarily for initial Managed Server registration as outlined above, and Customer’s provision of a Superuser account is at Customer’s own risk.
Access to Managed Servers. Vendor provides two modes of access to Customer’s Managed Servers; Trusted mode and Untrusted mode.
Trusted mode access. When Trusted mode access is used, SYSTEM accounts will be utilized to access Customer’s Managed Servers and to perform all administrative and management tasks.
Untrusted mode access. When Untrusted mode access is used, Customer must login individually to any of Customer’s Managed Servers that Customer wishes to access or manage through the Service.
Handling of SYSTEM account and Customer Login Information. Vendor maintains SYSTEM accounts, as well as Customer Login Information, distributed among multiple Vendor servers using a proprietary algorithm. Customer Login Information and SYSTEM accounts are protected using 128 bit encryption. Encryption keys are stored on servers separate from the encrypted Customer Logic Information and/or SYSTEM account.
Data Center Security. Vendor provides the ServerSuit Software as a SaaS via servers maintained in a secure Data Center provided and maintained by a third party Data Center Provider. The Data Center Provider has received ISO/IEC 27001 certification, SOC 1 Type II and SOC 2 Type II certifications, and maintains high security Data Centers with 24/7 surveillance, redundant power supplies and UPS backup systems among other measures.
Managed Server Interaction. The ServerSuit Software may store user scripts (created by Vendor or Customer) on Managed Servers from time-to-time as needed. Other artifacts such as log files, single SQLLite database files, and/or single bash script files may also be stored from time-to-time on Managed Servers using the SaaS.
License and Restrictions.
Vendor hereby grants Customer a nonexclusive, nontransferable, worldwide right to use the Service, solely for Customer’s own internal business purposes, subject to the terms and conditions of this AGREEMENT. All rights not expressly granted to Customer are reserved by Vendor and its licensors.
Customer may not access the Service if Customer is a direct competitor of Vendor, except with Vendor’s prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer, or induce a third party to reverse engineer, or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service; (v) publicly display or publicly perform the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
Customer may use the Service only for Customer’s internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
Upgrades. Vendor may Upgrade its Software and Services without additional charge, from time-to-time. Upgrades will become part of the Software and will be subject to all provisions of this AGREEMENT.
Upgrades and Agreement Terms. Vendor may require additional terms that are additional to this AGREEMENT or that modify or amend this AGREEMENT upon Customer’s installation and use of Upgrades. Any such additional terms, modified or amended terms will require Customer’s execution of a new Agreement which will subsequently replace and supersede this AGREEMENT. Customer may reject such additional terms, modified or amended terms by not using the Software and Services.
Reservations regarding Upgrades. Vendor may cease providing Upgrades at any time and/or may cease providing Upgrades without additional charge and may require an additional charge for Upgrades at any point in time without notice. Customer will be informed of any such additional charges at the time of provision of such Upgrades.
Customer is responsible for all activity occurring under Customer’s User accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data.
Customer shall: (i) notify Vendor immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Vendor immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or Customer Users; and (iii) not impersonate another Vendor user or provide false identity information to gain access to or use the Service.
Account Information and Data
Vendor does not own any Customer Data. Customer, not Vendor, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Vendor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this AGREEMENT is terminated (other than by reason of Customer’s breach), Vendor will provide facility to copy or download a file of Customer Data upon Customer request if such request is made within a reasonable period of time subsequent to termination. Vendor reserves the right to withhold, remove, and/or discard Customer Data without notice for any breach, including, without limitation, Customer’s non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and Vendor shall have no obligation to maintain or forward any Customer Data. Vendor reserves the right to remove and/or discard Customer Data without notice subsequent to termination of this AGREEMENT without cause, within a reasonable period of time subsequent to termination and/or where the Customer has not requested a file of Customer Data within the reasonable period of time subsequent to termination. A reasonable period of time under this paragraph shall be no longer than 90 days subsequent to the date of termination of this AGREEMENT.
Vendor has no access whatsoever to Managed Server Data present on Managed Servers. All responsibility for the security of Managed Server Data including maintaining the security and integrity of Superuser account (i.e. root account) passwords and logins, and compliance with any laws or regulations regarding the Managed Server Data is the sole responsibility of Customer.
Intellectual Property Ownership
Vendor (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Vendor Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Service. This AGREEMENT is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the Vendor Technology or the Intellectual Property Rights owned by Vendor. Vendor’s name, Vendor’s logo, and the product names associated with the Service are trademarks of Vendor or third parties, and no right or license is granted to use them. No rights whatsoever to use any trademarks, registered or unregistered, are granted by any provision of this AGREEMENT. Customer shall not remove or alter any copyright, trademark or other proprietary notice that appears on or in any Content.
Third Party Interactions
During use of the Service, Customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between Customer and the applicable third party. Vendor and its licensors shall have no liability, obligation, or responsibility for any such correspondence, purchase, or promotion between Customer and any such third party. Vendor does not endorse any sites on the Internet that are linked through the Service. Vendor provides these links to Customer only as a matter of convenience, and in no event shall Vendor or its licensors be responsible for any content, products, or other materials on or available from such sites. Vendor provides the Service to Customer pursuant to the terms and conditions of this AGREEMENT. Customer recognizes, however, that certain third party providers of ancillary software, hardware, or services may require Customer’s AGREEMENT to additional or different license or other terms prior to Customer’s use of or access to such software, hardware or services.
Charges and Payment of Fees
Customer shall pay all fees or charges to Customer’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Charges are assessed on a per server basis with payments charged monthly, quarterly or annually at the Customer’s election. Usage based fees are charged in blocks of hours without limit on the number of servers accessed and/or managed.
All payment obligations are non-cancelable and all amounts paid are nonrefundable. Customer is responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. Customer must provide Vendor with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add licenses by executing an additional written or online Order Form.
Vendor reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to Customer, which notice may be provided by email.
Vendor’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only U.S. (federal or state) taxes based solely on Vendor’s income.
Customer agrees to provide Vendor with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. Customer agrees to update this information within 30 days of any change to it. If the contact information Customer has provided is false or fraudulent, Vendor reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.
If Customer believes its fees or charges are incorrect, Customer must contact Vendor in writing within 60 days of the charge date in question to be eligible to receive an adjustment or credit.
Nonpayment and Suspension
In addition to any other rights granted to Vendor herein, Vendor reserves the right to suspend or terminate this AGREEMENT and Customer’s access to the Service if Customer’s account becomes delinquent.
Customer agrees and acknowledges that Vendor has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account is 30 days or more past due.
Termination upon Expiration
This AGREEMENT commences on the Effective Date. For all licenses, the term may be extended by Customer and may be terminated at any time in Vendor’s sole discretion. The Initial Term will be as Customer elects during the online subscription process or as otherwise mutually agreed upon in an Order Form, commencing on the date Customer agrees to pay for the Service by completing the online subscription form, or on the start date of the Order Form.
In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this AGREEMENT is terminated (other than by reason of Customer’s breach), Vendor will make available to Customer a file of the Customer Data if Customer so requests at the time of termination. Customer agrees and acknowledges that Vendor has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
Termination for Cause
Any breach of Customer’s payment obligations or unauthorized use of the Vendor Technology or Service will be deemed a material breach of this AGREEMENT. Vendor, in its sole discretion, may terminate Customer’s password, account or use of the Service if Customer breaches or otherwise fails to comply with this AGREEMENT. In addition, Vendor may terminate a free account at any time in its sole discretion. Customer agrees and acknowledges that Vendor has no obligation to retain the Customer Data, and may delete such Customer Data, if Customer has materially breached this AGREEMENT, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
Effects of Termination. Upon termination of this AGREEMENT, the licenses granted herein shall terminate and Customer shall cease all use of the Software and Services. The following provisions will survive termination of this AGREEMENT: (i) any obligation of Customer to pay for the Service rendered before termination; and (ii) any other provision of this AGREEMENT that must survive termination to fulfill its essential purpose.
Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this AGREEMENT. Vendor represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Vendor help documentation under normal use and circumstances. Customer represents and warrants that Customer has not falsely identified Customer nor provided any false information to gain access to the Service and that Customer’s billing information is correct.
Customer shall indemnify and hold Vendor, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties; or (iii) a claim arising from the breach by Customer or Customer Users of this AGREEMENT, provided in any such case that Vendor (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally releases Vendor of all liability and such settlement does not affect Vendor’s business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim.
Vendor shall indemnify and hold Customer and Customer’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Vendor of its representations or warranties; or (iii) a claim arising from breach of this AGREEMENT by Vendor; provided that Customer (a) promptly gives written notice of the claim to Vendor; (b) gives Vendor sole control of the defense and settlement of the claim (provided that Vendor may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provides to Vendor all available information and assistance; and (d) has not compromised or settled such claim. Vendor shall have no indemnification obligation, and Customer shall indemnify Vendor pursuant to this AGREEMENT, for claims arising from any infringement arising from the combination of the Service with any of Customer products, service, hardware or business process(s).
Customer shall indemnify and hold Vendor, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with Managed Server Data.
DISCLAIMER OF WARRANTIES.
“AS-IS”. THE SOFTWARE AND SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND WITH ALL FAULTS.
WARRANTY DISCLAIMERS, NO WARRANTY. VENDOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VENDOR MAKES NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION PERFORMANCE, RESULTS, NONINFRINGEMENT OF ANY PARTY'S RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
WARRANTY DISCLAIMERS, NO WARRANTY FOR SERVICE. VENDOR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. VENDOR AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY VENDOR AND ITS LICENSORS.
Third Party Interoperability. The Software and Service may interoperate with and allow you to use software applications, information and data not developed or offered by Vendor ("Third Party Information"). Your use of any Third Party Information is governed by the terms and conditions made available to you by the party from whom you obtained such information. Unless otherwise agreed by Vendor in writing, Third Party Information is not the responsibility of Vendor. YOUR USE OF THIRD PARTY INFORMATION IS AT YOUR OWN RISK. VENDOR MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, INTEROPERABILITY, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THIRD PARTY INFORMATION.
VENDOR’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
LIMITATION OF LIABILITY.
Limitations. (i) IN NO EVENT WILL VENDOR’S, OR ANY OF ITS OFFICERS’, DIRECTORS’, SHAREHOLDERS’, PARENTS’, SUBSIDIARIES’, AGENTS’, INSURERS’, SUCCESSORS’, AND/OR ASSIGNS’, LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF FEES PAYABLE TO VENDOR PURSUANT TO THIS AGREEMENT (INCLUDING FEES BOTH PAID AND DUE) AT THE TIME OF THE EVENT GIVING RISE TO THE LIABILITY; AND (ii) IN NO EVENT WILL VENDOR OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AGENTS, INSURERS, SUCCESSORS, AND/OR ASSIGNS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SUBSECTION 17(a) APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF VENDOR, AND/OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AGENTS, INSURERS, SUCCESSORS, AND/OR ASSIGNS IS/ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, VENDOR’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
Further Limitations. IN NO EVENT WILL VENDOR OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AGENTS, INSURERS, SUCCESSORS, AND/OR ASSIGNS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO i) ANY USE OF THE SOFTWARE AND SERVICE IN COMBINATION WITH HARDWARE OR SOFTWARE OR THIRD PARTY INFORMATION NOT PROVIDED BY VENDOR; ii) ANY CLAIM RELATING TO MANAGED SERVER DATA.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Local Laws and Export Control
Vendor provides services and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Customer acknowledges and agrees that the software and Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries on which the United States, Switzerland, and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all U.S., Swiss, and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
The software and Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730–774 and Council Regulation (EC) No. 1334/2000.
Vendor and its licensors make no representation that the Service is appropriate or available for use in other locations. Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to U.S., Swiss, or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical, or biological weapons, or missile projects, unless specifically authorized by the U.S. government or appropriate European body for such purposes.
Notice and Contact Information. Vendor may be contacted at the mailing address below or by Vendor’s website. Notices pursuant to this AGREEMENT should be sent to the address below, or to such others as may be provided in writing. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested.
Corporate Headquarters, Mailing Address: CLEAR SKY TECHNOLOGIES, INC., 425 Huehl Rd., Bldg. 4B, Northbrook, IL 60062, USA.
Website Address: https://serversuit.com
Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way. Nothing in this AGREEMENT is intended or shall be construed to create between the Parties a relationship of principal and agent, partners, joint venturers, or employer and employee. No Party shall hold itself out to others or seek to bind or commit another Party in any manner inconsistent with this AGREEMENT.
No Waiver. Neither party will be deemed to have waived any of its rights under this AGREEMENT by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this AGREEMENT will constitute a waiver of any prior or subsequent breach of this AGREEMENT.
Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this AGREEMENT.
Choice of Law & Jurisdiction. This AGREEMENT shall be governed solely by the internal laws of the State of Illinois, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Illinois, United States of America.
Severability. All of the provisions of this AGREEMENT are intended to be distinct and severable. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this AGREEMENT invalid or otherwise unenforceable in any respect. In the event that a provision of this AGREEMENT is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this AGREEMENT will continue in full force and effect.
Conflicts among Attachments. In the event of any conflict between the terms of this main body of this AGREEMENT and those of any attachment including those of any documentation, the terms of this main body will govern.
Electronic Execution, Binding Agreement. This AGREEMENT may be executed as a “click-wrap” or “browse-wrap” AGREEMENT or by other form of electronic signature and Customer agrees that this execution shall result in a binding AGREEMENT between the parties. CUSTOMER AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER OR CUSTOMER’S AUTHORIZED REPRESENTATIVE. THIS AGREEMENT IS ENFORCEABLE AGAINST CUSTOMER AND ANY LEGAL ENTITY THAT USES THE SOFTWARE AND SERVICES AND ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE, DO NOT USE THE SOFTWARE AND SERVICES.
Interpretation and Construction. The parties agree that the terms of this AGREEMENT result from negotiations between them. This AGREEMENT will not be construed in favor of or against either party by reason of authorship.
Entire Agreement. This AGREEMENT sets forth the entire AGREEMENT of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
Modification to Terms. Vendor reserves the right to modify the terms and conditions of this AGREEMENT or its policies relating to the Service at any time, effective upon posting of an updated version of this AGREEMENT on the Service. Customer is responsible for regularly reviewing this AGREEMENT. Continued use of the Service after any such changes shall constitute Customer’s consent to such changes.
Assignment; - Change in Control. This AGREEMENT may not be assigned by Customer without the prior written approval of Vendor but may be assigned without Customer’s consent by Vendor to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Vendor directly or indirectly owning or controlling 50 percent or more of Customer shall entitle Vendor to terminate this AGREEMENT for cause immediately upon written notice.
Headings. The headings of sections and subsections have been included for convenience only and shall not be considered in interpreting this AGREEMENT.
Counterparts. This AGREEMENT may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same AGREEMENT.
Notice to U.S. Government End Users. The development of the Software and Service has been exclusively at the private expense of VENDOR Accordingly, the Software and Service and Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and comprises “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Accordingly, and consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.