TERMS OF SERVICE
Terms of Service
You must carefully read CloudERP’s terms of Service herein below before proceeding.
Your use of the CloudERP Solution (as such term is defined below) is subject to the following terms of Service (“ToS“). By using the CloudERP Solution, you confirm that you have read and you agree to be bound by the ToS at all times.
If you are confirming the use in the CloudERP Solution on behalf of an entity (e.g. corporation) you hereby confirm that you have the authority to do so.
If you do not agree to be bound by the terms of CloudERP’s ToS, you must not activate or use the CloudERP Solution.
- “CloudERP system” means the system developed by CloudERP which enables process automation from various majors ERP providers and the conversion into structured formats, which contain the information required.
- “Confidential Information” means any information which is confidential in nature, disclosed by CloudERP to Customer in writing, orally or can be inferred by inspection of tangible objects (including without limitation documents, prototypes, technical data, trade secrets, know-how, research, developments, products, product plans, services, customers, markets, software, inventions, processes, designs, drawings, marketing plans, financial information and CloudERP’s facilities and equipment). Confidential Information shall not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by CloudERP; (ii) becomes publicly known and made generally available after disclosure by CloudERP to Customer through no action or inaction of Customer; or (iii) information that Customer is compelled to disclose by law, but only to the minimum extent required, provided that Customer notifies CloudERP in writing of any such requirement prior to such disclosure and, if applicable, will assist CloudERP in obtaining an order protecting the information from public disclosure.
- “Fees” means the applicable payment to be paid to CloudERP by Customer as agreed between the parties.
- “Intellectual Property” means all intellectual property rights of every kind and description, including without limitation all (a) rights in or to trademarks, trade names and service marks (whether or not registered), and other designations of source of origin, together with all goodwill related to the foregoing, (b) patents, patent applications, continuations and continuations in part (c) rights in or to copyrights, whether or not registered, (d) rights in or to trade secrets and confidential information, including without limitation know-how, technology methods, ideas and inventions, (e) rights in software and computer code (whether in source code, object code or any other form), and (f) all applications and registrations of any of the foregoing together with all revisions, extensions, reexaminations translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith.
- “Ordering Document” means any written purchasing orders, specifications, instructions, manuals or other materials provided by CloudERP to Customer in connection with the CloudERP Solution.
- “Services” means the services rendered by CloudERP, for which Customer has paid the applicable Fees as provided under an applicable Ordering Document, including but not limited to license to use of the Software.
- “Software” means the executable code of the CloudERP Solution.
- “You” or “Customer” means the customer purchasing the Services which details are provided under the applicable Ordering Document.
- The ToS shall govern the use in the CloudERP Solution and shall prevail any other terms unless explicitly set forth otherwise in an Ordering Document or an agreement entered between You and CloudERP. CloudERP reserves the right to change, cancel or supplement the terms and conditions of the ToS, including with respect to changes in the Software, at any time during the term of Service. CloudERP shall provide Customer with a written notice of any such change or addition to the ToS, and Customer’s continued use of the Service is subject to its acceptance of such changes. The continued use of the Service by Customer shall be deemed to be acceptance.
- Services and License. Subject to Customer’s compliance with the terms of these ToS and the payment of the fees set forth in an applicable Ordering Document, CloudERP hereby grants, to Customer, a limited, non-exclusive, terminable, non-transferable license to use the CloudERP Solution and Software, solely for the Customer’s own internal business use, during the term of services as such is specified in Ordering Document, and subject to the terms of the ToS. Customer is responsible for the supervision, management and control of the use of the Software and output of the Software, including, but not limited to: (i) selection of the Software to achieve its intended results; (ii) determining the appropriate uses of the Software and the output of the Software in Customer’s business; (iii) establishing adequate independent procedures for testing the accuracy of the Software and any output; and (iv) establishing an adequate backup to prevent the loss of data in the event of a malfunction of the Software or Service.
Customer understands that CloudERP may decide at any time, without advanced notice, to make any changes to the Services which are necessary in order to comply with any statutory requirements or to the extent that such changes do not materially affect the nature of the Service. To the extent that any of the changes made by CloudERP in its sole discretion, will affect the nature of the Service, CloudERP shall provide Customer a prior written notice.
- Use of Services and Customer Responsibilities. In order to use the Services, Customer may be requested to provide CloudERP with any information that is reasonably necessary for CloudERP to render the Services. CloudERP shall provide Customer with username and password which will enable Customer to logon to its personal account. Customer is responsible to keep its user name and password secure.
Customer acknowledges and agrees that (i) CloudERP is not and will not be liable to Customer for any loss it may suffer as a result of using the Software; (ii) by using the Services, Customer assumes all responsibility for all the information produced by the CloudERP Solution; (iii) CloudERP makes no warranties, undertakings or representations as to the accuracy of the information provided by Customer or that the Software will be free from errors, viruses or other defects. Customer understands it is his responsibility to take any safety measures it deems appropriate to ensure that his computer and systems are protected from viruses (e.g. by setting up firewall systems and virus scanners) and his operation is not harmed by any lack of access to the Service for any reason and in any given time.
- Data Protection. It is not the intention of the Customer and CloudERP to disclose “personal data” within the meaning of the EU General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) pursuant to the Service. To the extent that either Customer or CloudERP receive any personal data from the other party, the receiving party will comply with all applicable data protection legislation and regulations. Each party acknowledges that it is a controller in respect of any personal data it receives within the ToS.
- Restrictions. Customer shall not, nor shall Customer allow any third party to (i) disclose, transmit, rent, lease, sell, assign, license, sublicense, communicate or otherwise transfer the Software or any portion thereof, to third parties; (ii) copy, duplicate, modify, adapt, translate or otherwise create derivative works of the Software, (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of, or trade secrets related to, any portion of the Software (iv) remove any proprietary notices or labels on the Software or placed by the Software; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Software; or (vi) use any portion of the Software separately from or independently of the Software, (vii) build a product using similar features, functions or graphics of the Software, (viii) use the Software outside of the scope of the license granted hereunder, (ix) provide access to or use of the Software to any third party; (x) interfere with the operation of the Software or perform any action which may cause the Services to be interrupted or degraded (xi) use the Software in an illegal manner (e.g. fraudulency, deliberately misleading or incorrect, or is intended to promote any illegal activity) in any jurisdiction in which the Software is or may be accessed or made available; (xii) use the Service in a manner that is likely to expose CloudERP to criminal prosecution, civil action or cause damage to CloudERP’s goodwill and reputation. Customer shall (a) use the Software solely for the Customer’s own internal use, and shall not make the Software available for third parties and/or for timesharing, application service provider or service bureau use; (b) comply with all applicable laws and regulations in the Customer’s use of and access to the Software; and (c) notify CloudERP immediately should it become aware of any unauthorized access to or use of the Services.
- Retention of Rights. CloudERP Solution and the Software are protected by copyright laws and other Intellectual Property laws. Customer obtains only such rights as are specifically provided in the ToS. CloudERP or its licensors (if applicable) retain all title, right, copyright (and any other applicable Intellectual Property right), and interest in and to the CloudERP Solution and Software, including all work product or output generated by them, documentation, translations, enhancements, improvements modifications and derivative works made to or derived from the CloudERP Solution or the Software. Furthermore, Customer all retain all Intellectual Property rights in the output of the Service and information provided by Customer in connection with the Services, and Customer hereby grants CloudERP a perpetual, nonexclusive, royalty-free license to use the same in order to provide the Services or for CloudERP’s internal use. Except as expressly set forth herein, Customer will not acquire any Intellectual Property rights in the Software by virtue of the License granted herein.
Without limiting the generality of the foregoing, Customer undertakes not to (and to not allow any third party to): (i) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Software for any purpose without the express written consent of CloudERP; (ii) register, attempt to register, or assist anyone else to register any trademark, trade name, service marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with CloudERP; or (iii) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with or in the Software.
- Fees & Term of Payment. Unless otherwise agreed between CloudERP and Customer in writing, the Fees payable by Customers are only for the use of the Software during an applicable term, and does not include any other services, training, professional services, hardware, hosting and networking costs. (b) The Fees shall be due and payable within thirty (30) days of invoice, unless otherwise is set forth in the Ordering Document or Master agreement (if applicable). The Customer will make all payments to the address and in the manner noted in the invoice. (c) Without derogating from any other right of CloudERP under any applicable law, invoices unpaid by Customer within 30 days of the date the payment is due shall bear interest at the rate of one percent (1.0%) per month (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid (unless otherwise is set forth in the Ordering Document or Master agreement if applicable). Without derogating from the aforesaid, it is hereby agreed that unless payment of the Fees, including all accrued interest, is received by CloudERP within thirty (30) days of the date payment is due, CloudERP shall not be obliged to provide the Customer with the Services and shall have the right to terminate the License forthwith.
- Taxes. The License Fees detailed in the Ordering Document do not include import or export fees, duties, tariffs or other charges associated with exporting or importing of goods and/or services, local, state, or federal sales, use, excise, personal property, VAT or other taxes or duties, and any such taxes, to the extent legally applicable, shall be borne and paid by Customer. If Customer is legally required to withhold any income or remittance tax from amounts payable to CloudERP, then (a) Customer shall promptly notify CloudERP in writing, (b) the amount payable will be automatically increased to the extent required to offset such tax, so that the amount remitted to CloudERP, net of taxes, equals the amount stated in the invoice, and (c) Customer will provide CloudERP with the official receipt of payment of such taxes to the appropriate taxing authority. Customer will be responsible for payment of any withholding taxes and shall indemnify CloudERP from and against any claim for unpaid withholding taxes, interest and penalties which may be claimed by the applicable tax authorities relating to payment of such taxes, unless otherwise is set forth in the Ordering Document or Master agreement (if applicable).
- Maintenance, Support, and Professional Services. During the term of Service, any maintenance, support and other professional services, as may be requested by Customer, will be provided by CloudERP at CloudERP’s sole and absolute discretion, only if and to the extent that the parties have reached an agreed statement of work, based on the fees set forth in the Ordering Document (and if no such fees are set forth under the Ordering Document, CloudERP’s then current rates shall apply). Customer shall use the most recent version of the Software available from CloudERP as soon as reasonably possible following delivery of such Software but in no event later than thirty (30) days after delivery.
Notwithstanding the foregoing, CloudERP is under no obligation to provide any new version of the Software. However, should CloudERP decides to provide Customer with a new version of the Software, Customer understands and agrees that it may be required to accept new terms and conditions in order to use it. CloudERP’s commitment to provide any maintenance or support services (if and to the extent agreed), is subject to CloudERP having a full remote access to the Software and to the relevant systems, servers, instances, equipment and devices, as well as all logs, graphics etc.
Customer acknowledges that, from time to time, CloudERP may be required to shut down the Service for the purpose of performance maintenance upgrades or other support service. CloudERP shall use reasonable commercial efforts to minimize such downtime.
- Confidentiality Obligations. It is mutually acknowledged that CloudERP may provide Customer with Confidential Information in the course of rendering its Services. Such Confidential Information expressly includes the Software. Accordingly, CloudERP and Customer agree to the following: (a) Customer shall, at all times, exercise a highest standard of care with respect to the Confidential Information, which shall be no less than the standard of care Customer exercises in protecting its own confidential property. Customer will not disclose, will not permit the disclosure of, or otherwise authorize access to, or disclosure of, the Confidential Information to any person or entity other than to employees who have a “need to know” such information to allow Customer to exercise its rights and obligations hereunder. Customer shall promptly notify CloudERP in writing of the existence of any unauthorized knowledge, possession, or use of the Confidential Information. Customer shall not alter, modify, disassemble, reverse engineer or de compile any software or other materials (in any form) or documents embodying Confidential Information. Customer will take all reasonable measures to ensure that any of its employees receiving Confidential Information shall strictly comply with all of the provisions of this Section 11 as if each of them were a party hereto, and hereby assumes full responsibility and liability for such compliance by its employees. (c) Notwithstanding anything contained herein, Customer hereby authorizes CloudERP and its affiliates: (i) to use Customer’s name, logo and other applicable Customer’s trademarks, at any time, on their websites and other promotional or marketing materials, presentations, press releases, etc., for the purpose of referencing Customer as a customer of CloudERP; and (ii) to allow CloudERP and its affiliates to use Customer as a reference for the Software.
- Limited Warranty. For a period of thirty (30) days from delivery of Software to Customer (the “Warranty Period“) the Software will perform in material conformance with requirements of applicable statement of work, this Agreement, and, to the extent not inconsistent, CloudERP’s then current, generally available documentation relating to use and operation of the Software. Customer acknowledges that the Customer’s sole and exclusive remedy for any failure or nonperformance of the Software shall be for CloudERP to use commercially reasonable efforts to adjust or repair the Software, as CloudERP shall choose at its sole and absolute discretion, provided that: (a) Customer notifies CloudERP in writing of the defect within 30 days of the defect arising, providing full descriptive details of the defect and the manner in which it was discovered; and (b) such defect in material or workmanship is discovered within the Warranty Period; and (c) the defect was not caused by: (i) accident, corruption, misuse or neglect of the Software by Customer; or (ii) acts or omissions by someone other than CloudERP; or (iii) changes, modifications, repairs and the like to the Software other than by authorized personnel of CloudERP; or (iv) combination of the Software with products, material or software not provided by CloudERP or not intended for combination with the Software; or (v) failure by Customer to incorporate and use all updates to the Software available from CloudERP. Any replacement Software will be warranted for the remainder of the original Warranty Period or thirty (30) days from the date of receipt by Customer, whichever is longer.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12 ABOVE (LIMITED WARRANTY), CloudERP DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF CUSTOMER, NOR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. CloudERP DOES NOT MAKE, AND THIS AGREEMENT DOES NOT PASS TO CUSTOMER IN ANY WAY ANY REPRESENTATION, WARRANTY OR UNDERTAKING ON BEHALF OF CloudERP’S SUPPLIERS OR LICENSORS. CUSTOMER REPRESENTS AND WARRANTS THAT IT HAD THE CHANCE TO REVIEW, EVALUATE AND TEST THE SOFTWARE, ITS FEATURES, OPERATION, PERFORMANCE AND OUTCOME, AND IT IS SATISFIED WITH ITS FINDINGS AND THE SOFTWARE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CloudERP MAKES NO AND DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE, AND ANY ACCOMPANYING DOCUMENTATION WHETHER ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, TRADE USAGE, OR OTHERWISE. CloudERP SHALL HAVE NO LIABILITY WHATSOEVER IN CONNECTION WITH OR ARISING OUT OF THE USE OF THE SOFTWARE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
- Limitation of Liability. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, AND TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, IN NO EVENT WILL CloudERP BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST INCOME, LOST PROFITS OR LOST DATA, AND/OR DAMAGES TO GOODWILL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE USE OR INABILITY TO USE THE SOFTWARE, THE PERFORMANCE OF THE SOFTWARE, AND THE PROVISION OF THE SERVICES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, TORT, OR OTHERWISE, EVEN IF CloudERP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT, CloudERP’S TOTAL CUMULATIVE LIABILITY TOWARDS CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR THE SOFTWARE (INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SOFTWARE, OR FOR ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION), OR ANY WORK PRODUCT PROVIDED IN CONNECTION WITH SERVICES WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, TORT, OR OTHERWISE, SHALL EXCEED THE LICENSE FEES ACTUALY PAID BY CUSTOMER TO CloudERP IN THE SIX (6) MONTHS PRECEDING THE CIRCUMSTANCES FIRST GIVING RISE TO THE CLAIM OF LIABILITY.
- Indemnification. CloudERP shall indemnify Customer against any award of damage and costs made against Customer by a final judgment of a court of last resort that determined that the Software infringes any patent or copyright, subject to Customer providing CloudERP with (a) prompt written notice of the claim or action for which indemnity is sought, (b) sole control and authority over the defense and settlement of any such claim or action, and (c) proper and full information and reasonable assistance to defend and/or settle any such claim or action. Counsel retained by Customer to monitor the handling of any claim subject to indemnity under this Section 15 shall be retained at Customer’s sole expense, and that expense shall not be subject to indemnity by CloudERP. In the defense or settlement of the claim (including threaten or potential claim), CloudERP shall have the right at its sole option and expense to (i) obtain for Customer the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing while giving similar performance or, (iii) if such remedies are not reasonably available (at CloudERP sole and absolute discretion), remove the infringing portion of the Software, accept its return and, provide Customer with a refund of the License Fees paid for such Software for the un-utilized term. CloudERP shall have no liability if the alleged infringement is based on a modification of the Software by anyone other than CloudERP; is based upon Third Party Products (as defined below) contained in the Software; is based on use of the Software with equipment not authorized by CloudERP; is based upon Customer’s use of a non-current version of the Software; or is based on the use of the Software other than in accordance with its documentation. This Section 15 states CloudERP’s entire liability and Customer’s exclusive remedy for infringement.
- Third Party Products. Customer acknowledges that the Software uses or contains certain products and components which were developed and owned by third parties, the use of which is governed by terms and conditions of such third parties which Customer would be obligated to accept and to which Customer would be bound (“Third Party Products“).
- Term & Termination. The License granted hereunder will expire upon the elapse of the term as provided in an applicable Ordering Document, unless extended for an additional period by mutual written consent of both parties. If either party commits any material breach of the Tos, and, in the case of a breach capable of remedy, fails to commence remedy within fourteen (14) days after receipt of written notice from the other party stating with particularity the claim of default (and thereafter diligently pursue such cure to completion), the non-defaulting party will be entitled to terminate the Service (and all rights granted hereunder) with immediate effect by giving written notice. If either party: (i) passes a resolution for voluntary winding up or a court of competent jurisdiction makes an order that such party be wound up except for the purposes of bona fide reconstruction while solvent; or (ii) makes a composition or arrangement with its creditors; or (iii) has a receiver or manager or provisional liquidator or administrator appointed over the whole or a substantial part of its business or undertaking, or circumstances arise which would entitle a court of competent jurisdiction or a creditor to appoint the same, and such proceedings have not been discharged within 90 days, or such party has consented to or failed to challenge such proceeding, then the other party may terminate the Service (and all rights granted hereunder) by giving written notice of termination to that party with immediate effect.
- Consequence of Termination. Immediately Upon expiration or termination of the Service for any reason the following shall apply: (i) all rights and licenses granted to Customer hereunder shall immediately terminate and Customer shall forthwith cease using the Software, (ii) Customer shall immediately return to CloudERP, or upon CloudERP’s request, destroy (and certify such destruction in writing by an authorized representative), all CloudERP’s Confidential Information and Software, or any copies (including extracts, summaries, and adaptations) thereof, and any other Intellectual Property of CloudERP, or other materials or media that contain or are based on Confidential Information of CloudERP, made available to Customer in connection with this Agreement, and shall make no further use of same without the written consent of CloudERP. At CloudERP’s request, Customer will enable CloudERP’s representative(s) to: (a) remove, uninstall, and delete the Software from any and all servers, instances, equipment and devices under Customer’s control, and (b) verify the removal, un-installation, and deletion of the Software from any and all servers, instances, equipment and devices under Customer’s control, (iii) Customer shall pay to CloudERP all unpaid amounts due under this Agreement. The expiration or termination of this Agreement shall not relieve either party hereto of any obligation to pay any amount due as a result of any transaction prior to the date of expiration or termination and shall not affect any other rights or liabilities of the parties which may have accrued prior to the date of expiration or termination, (iv) in the event of any termination, (a) Customer will not be entitled to any refund of any License Fees or any other fees paid to CloudERP, and (b) CloudERP shall have no liability to Customer or any third party due to such termination.