CLOUDM MIGRATE SELF HOSTED SOFTWARE (downloadable and installable software
licence)
PLEASE READ CAREFULLY BEFORE DOWNLOADING OR INSTALLING ANY SOFTWARE. BY
ACCESSING OR USING THE SOFTWARE DESCRIBED BELOW YOU AGREE TO BE BOUND BY
THE TERMS AND CONDITIONS DESCRIBED IN THIS AGREEMENT AND ALL TERMS AND
CONDITIONS INCORPORATED BY REFERENCE.
This Software licence agreement (User Licence) is a
legal agreement entered into between Cloud Technology Solutions Ltd a
company incorporated in England and Wales with registration number
06738954 and whose registered address is at Lowry House, 17 Marble
Street, Manchester M3 2AW (CTS) and the entity and any
of its affiliates, agreeing to this Agreement (End User).
This Agreement commences on the Effective Date. If you are accepting on
behalf of your employer or another entity, you represent and warrant
that you have (i) full legal authority to bind End User (your employer
or the applicable entity), (ii) you have read and understand this
Agreement; and (iii) that such End User (employer or applicable entity
as the case may be) agrees to indemnify and hold harmless, CTS for
breach and/or violations of this Agreement by you, the entity and/or any
Authorised Users and End User.
IMPORTANT NOTICE:
BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR AUTHORISING OTHERS TO
DO SO, END USER AGREES TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND
END USER FROM THE EFFECTIVE DATE. THE TERMS OF THIS AGREEMENT INCLUDE,
IN PARTICULAR, LIMITATIONS ON LIABILITY.
IF END USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CTS WILL NOT
LICENSE THE SOFTWARE AND DOCUMENTS TO END USER AND AUTHORISED USERS OR
THIRD PARTIES MUST DISCONTINUE THE DOWNLOADING USING AND/OR INSTALLATION
PROCESS NOW. IN THIS CASE DISCONTINUING THE USE DOWNLOADING/INSTALLATION
PROCESS WILL TERMINATE THIS AGREEMENT.
This User Licence governs End User access to and use of the Software and
Documentation. The User Licence, Order, Documentation, privacy policy
and any other policies or other terms incorporated herein are
collectively referred to as the “Agreement”. IF YOU DO NOT AGREE TO ALL
OF THE APPLICABLE TERMS AND CONDITIONS IN THE AGREEMENT DO NOT USE THE
CTS SOFTWARE.
OPERATING SYSTEM REQUIREMENTS: THIS SOFTWARE REQUIRES A
COMPUTER WITH A MINIMUM OF 16GB OF MEMORY AND A 64 BIT WINDOWS OPERATING
SYSTEM. SYSTEM REQUIREMENTS.
CTS reserves the right to change or modify any of the terms and
conditions contained in this Agreement at any time and in its sole
discretion. If CTS makes a material change/s it shall provide End User
with written notice such as by email, on its website, or updating the
Documents in this Agreement (Changes). End Users and Authorised Users
continued use of the Software, Documentation, will confirm its
acceptance of the Changes. CTS encourage End User to frequently review
the documents referred to in this Agreement. If End User does not agree
to the amended Agreement, End User and Authorised Users must stop using
the Software immediately. End User and Authorised User should
print a copy of this Agreement for future reference.
- 1. Grant and scope of licence
- 1.1 In consideration of payment by End User of the Fee’s for
the Software specified in the Order and End User agreeing to
abide by the terms of this Agreement, CTS hereby grant End
User and End User accepts a non-exclusive, non-transferable,
non-sublicensable licence to install, display, perform and
use the Software and the Documents on the terms of this
Agreement from the Effective Date for the applicable Term.
- 1.2 End User acknowledges and agrees that the Fees specified
in the Order and the User Licence is granted under condition
1. End User further acknowledges and agrees that it shall be
obligated to communicate to CTS and/or Partner any
Authorised Users above the number specified in the Order and
to pay additional Fees for a license to use the Software for
any mailboxes, users, objects, processors, servers,
directories, websites, portal sites, intranet sites (as
applicable).
- 1.3 If an End User orders Software through a Partner any
Fees shall be paid directly to the Partner and any
obligations in respect of the Fees shall be on the Partner
to provide any such refunds or credits dependant upon the
terms of the End User and Partner agreement.
- 1.4 If an End User orders Software through the CTS website,
a third party website or over the telephone directly via an
account manager at CTS, End User shall;
- (a) make payment of the Fees in arrears in
accordance with the Order, Fee’s are non-refundable
either in part or in full; and
- (b) pay the Fees by the method stated in the Order;
and
- (c) Fees do not include VAT or any applicable
taxes.
- 1.5 Subject to clause 2, End User may:
- (a) download, install and use the Software for its
internal business purposes only;
- (b) provided it is used on only one computer or
virtual machine cluster at any one time, transfer
the Software from one computer to another;
- (c) make up to 1 copy of the Software for back-up
purposes only;
- (d) receive and use any free supplementary software
code or update of the Software incorporating
"patches" and corrections of errors as may be
provided by CTS from time to time; and
- (e) use any Documents in support of the use
permitted under condition 1 and make up to 1 copy of
the Documents as are reasonably necessary for its
lawful use.
- 2. Restrictions on use
- 2.1 Except as expressly set out in this Agreement or as
permitted by any local law, End User undertakes that it
shall not (and will use its best commercial efforts to make
sure a third party shall not):
- (a) copy the Software or Documents except where such
copying is incidental to normal use of the Software,
or where it is necessary for the purpose of back-up
or operational security;
- (b) rent, assign, resell, lease, convey,
sub-license, loan, translate, merge, adapt, vary or
modify or the functional equivalent, the Software or
Documents;
- (c) distribute, disclose or allow the use of the
Software or Documentation, in any format through any
time sharing service, service bureau, network or by
any other similar means;
- (d) make alterations to, or modifications of, the
whole or any part of the Software, nor permit the
Software or any part of it to be combined with, or
become incorporated in, any other programs;
- (e) disassemble, decompile, reverse-engineer,
reverse translate, or in any other manner decode the
Software, alter, modify or create any derivative
works or enhancements adaptions or translations of
the Software or Documentation, based on the whole or
any part of the Software nor attempt to do any such
thing except to the extent that (by virtue of
section 296A of the Copyright, Designs and Patents
Act 1988) such actions cannot be prohibited because
they are essential for the purpose of achieving
interoperability of the Software with another
software program, and provided that the information
obtained by End User or Authorised User during such
activities:
- (i) is used only for the purpose of
achieving interoperability of the Software
with another software program; and
- (ii) is not unnecessarily disclosed or
communicated without CTS’s prior written
consent to any third party; and
- (iii) is not used to create any software
which is substantially similar to the
Software;
- (f) provide or otherwise make available the Software
in whole or in part (including but not limited to
program listings, object and source program
listings, object code and source code), in any form
to any person other than Authorised Users without
prior written consent from CTS; and
- (g) publish the results of any tests run on the
Software;
- (h) disclose , provide, or otherwise make available
to any third party any trade secrets contained in
the Software or Documentation;
- (i) use the Software in a manner intended to avoid
incurring Fees;
- (j) use any other destination domain other than the
destination domain specified in the Order.
- 2.2 End User undertakes that it shall:
- (a) keep all copies of the Software secure and to
maintain accurate and up-to-date records of the
number and locations of all copies of the Software;
- (b) supervise and control the use of the Software
and ensure that the Software is used by Authorised
Users in accordance with the terms of this Agreement
or substantially similar terms;
- (c) include this Agreement on all entire and partial
copies you make of the Software on any medium; and
- (d) comply with the privacy
policy set out
- (e) comply with all applicable technology control or
export laws and regulations;
- (f) take back up copies of all source data; and
- (g) only use the Software in accordance with the
specifications set out in the Order, unless
otherwise agreed in writing with CTS or Partner as
the case may be.
- 2.3 CTS or Partner who provided the Software have the right
to inspect or audit by remote polling or other reasonable
means during normal business hours and with reasonable
notice to determine End User’s compliance with this
Agreement, including but not limited to usage levels. In the
event such inspection or audit uncovers non-compliance with
this Agreement, then without prejudice to CTS's termination
rights hereunder, End User shall promptly pay any applicable
Fees.
- 3. Intellectual property rights
- 3.1 End Users acknowledges and agrees that all Intellectual
Property Rights in the Software and the Documents anywhere
in the world belong to CTS, that rights in the Software are
licensed (not sold) to End User in accordance with this
Agreement, and that End User has no rights in, or to, the
Software or the Documents, other than the right to use them
in accordance with the terms of this Agreement.
- 3.2 End User acknowledges that it has no right to have
access to the Software in source code form.
- 3.3 CTS shall retain all rights, title and interest
including all associate patent, copyright, trade marks
(whether registered or unregistered) trade dress, trade
secret and other proprietary rights in and to the Software
and the Software including the source and object codes,
logic and structure and the Agreement constitutes valuable
trade secrets of CTS.
- 4. Personal Data
- 4.1 Download or use of the Software may require the
processing of personal data pertaining to End User,
Authorised Users or End Users personnel. Such data will be
used by CTS for communication, administrative and
operational purposes related to the Software, including but
not limited to tracking Software activations, communicating
and monitoring, regarding the use or download of the
Software and providing Software updates. For further details
and how personal data works with the Software please see the
CTS
privacy
policy
- 4.2 End User has obtained the relevant consent from data
subjects and hereby grants CTS a perpetual, non-exclusive
licence to collect, use, store, maintain and make personal
data available to third parties for the purpose of using the
Software.
- 5. Confidential Information
- 5.1 Subject to Section 5.2 (Disclosure of Confidential
Information) the recipient will not disclose the discloser's
Confidential Information, except to employees, or
professional advisers ('Delegates') who need to know it and
who have a legal obligation to keep it confidential. The
recipient will use the Confidential Information only to
exercise the rights and fulfil obligations under this
Agreement, while using reasonable care. The recipient will
ensure that its Delegates are also subject to the same
non-disclosure and use obligations.
- 5.2 Disclosure of Confidential Information
- (a) Subject to Section 5.2(b), the recipient may
disclose the discloser's Confidential Information
(i) in accordance with a Legal Process or (ii) with
the discloser’s written consent.
- (b) Before the recipient discloses the discloser's
Confidential Information inaccordance with a Legal
Process, the recipient will use commercially
reasonable efforts to promptly notify the discloser
in writing that the discloser Confidential
Information has been requested and is about to
disclose the same. The recipient does not need to
provide notice before disclosure if the recipient is
informed that (i) it is legally prohibited from
giving notice or (ii) the Legal Process relates to
exceptional circumstances involving danger of death
or serious physical injury to any person.
- (c) The recipient shall comply with the other
party’s reasonable requests opposing disclosure of
its Confidential Information.
- 6. Warranty
- 6.1 CTS warrant that:
- (a) the Software will, conform to the Documentation,
when properly used by End User, Authorised User or
third party on an operating system for which it was
designed, and will perform substantially in
accordance with the functions described in the
Documents; and
- (b) that the Documents correctly describe the
operation of the Software in all material respects;
- for a period of 90 days from the Effective Date (Warranty
Period) any replacement or repaired Software in condition
6.2 will be warranted for the remainder of the original
Warranty Period or (30) days whichever is longer.
- 6.2 If, within the Warranty Period, End User or Partner
notifies CTS in writing of any defect or fault in the
Software as a result of which it fails to perform
substantially in accordance with the Documents, CTS will, at
its sole option and exclusive remedy, either repair or
replace the Software, provided that End User makes available
all the information that may be necessary to help CTS to
remedy the defect or fault, including sufficient information
to enable CTS to recreate the defect or fault.
- 6.3 The warranty does not apply:
- (a) if the defect or fault in the Software results
from End User or Authorised User having altered or
modified the Software; and
- (b) if the defect or fault in the Software results
from End User or Authorised User having used the
Software in breach of the terms of this Agreement;
and
- (c) if the defect is caused by misuse of
misconfiguration of the Software.
- 6.4 Disclaimer of Warranties
- (a) THE WARRANTIES SET FORTH IN CONDITION 6 ABOVE
ARE THE SOLE AND EXCLUSIVE WARRANTIES REGARDING THE
SOFTWARE. CTS EXPRESSLY DISCLAIM TO THE FULLEST
EXTENT PERMITTED BY LAW ALL OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. In addition, CTS shall have no obligation
or other liability with regard to any error or
non-compliance with a warranty that is caused by:
(i) modifications to the Software made by any person
or entity other than CTS; (ii) use of the Software
installed in a hardware or operating environment not
supported by CTS; (iii) a malfunction of hardware or
other equipment; (iv) hardware, software or other
products not provided by CTS; (v) a breach of this
Agreement or (vi) the negligence, misuse or improper
use of the Software by End User, Authorised User or
any third party. This Agreement is final and no Fees
paid or payable hereunder are refund
- 7. End User Obligations
- 7.1 End User is responsible for:
- (a) Ensuring that the specifications in the Order
are accurate, correct and complete in all material
respects;
- (b) Maintaining Confidential Information as
confidential and including any passwords;
- (c) Designating Authorised Users with authorised
access to access the Software;
- (d) Ensuring that all activities that occur in
connection with the User Licence comply with the
Agreement; and
- (e) Obtaining and maintaining any rights necessary
for the End Users use of the domain name specified
in the Order.
- 7.2 The End User agrees that CTS’s responsibilities do not
extend to the internal management or administration of the
Software for the End User.
- 7.3 If the End User orders Software through a Partner, the
Partner may have access to admin accounts and End User
Authorised User accounts, the End User is solely responsible
for:
- (a) Any access by the Partner to the End Users
account or the Authorised User accounts; and
- (b) Defining in the Partner agreement any rights or
obligations between Partner and End User.
- 7.4 The End User shall obtain and maintain all required
consents from Authorised Users for CTS or Partner to have
access to relevant accounts in order to provide use of the
Software.
- 7.5 The End User will use commercially reasonable efforts to
prevent unauthorised use of the Software and to immediately
terminate any unauthorised use by any third party. The End
User will promptly notify CTS or Partner of any authorised
use of, or access to, the Software of which End User becomes
aware.
- 7.6 The End User undertakes not to allow anyone other than
Authorised Users who need to use the Software or
Documentation in the End User business to have access to the
Software or Documentation. End User agrees to contractually
obligate Authorised Users with whom it provides consent or
access to the Software or Documentation to comply with such
terms of this Agreement or substantially similar terms.
- 7.7 End User acknowledges and undertakes that it shall be
responsible for any Authorised User to comply with this
Agreement and shall indemnify and hold harmless CTS for any
damages, loss, expenses or costs (including reasonable legal
fees) incurred by CTS as a result of non-compliance with
condition 2 and 7 of this Agreement.
- 7.8 End User shall use the most current version of the
Software available and ensure that it accepts any updates
provided by CTS.
- 8. Limitation of liability
- 8.1 End User acknowledges that the Software
has not been developed to meet its individual requirements,
and that it is therefore End Users responsibility to ensure
that the facilities and functions of the Software as
described in the Documents meet its requirements.
- 8.2 CTS only supply the Software and Documents for internal
business use of the End User business, and End User agrees
not to use the Software or Documents for any consumer
purposes.
- 8.3 CTS shall not in any circumstances whatever be liable to
End User, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, arising under or in
connection with the Agreement for:
- (a) loss of profits, sales, business, or revenue;
- (b) business interruption;
- (c) loss of operation time;
- (d) loss of anticipated savings;
- (e) loss or corruption of data or information;
- (f) loss of agreements or contracts;
- (g) loss of business opportunity, goodwill or
reputation; or
- (h) any indirect or consequential loss or damage.
- 8.4 Other than the losses set out in condition 8.3 (for
which CTS are not liable), CTS’s maximum aggregate liability
under or in connection with this Agreement whether in
contract, tort (including negligence) or otherwise, shall in
all circumstances be limited to a sum equal to 125% of the
Fees in aggregate, within any Contract Year;
- 8.5 This maximum cap in condition 8.4 shall not apply to
condition 7.7.
- 8.6 Nothing in this Agreement shall limit or exclude CTS’s
liability for:
- (a) death or personal injury resulting from CTS’s
negligence;
- (b) fraud or fraudulent misrepresentation;
- (c) any other liability that cannot be excluded or
limited by applicable law.
- 8.7 This Agreement sets out the full extent of CTS’s
obligations and liabilities in respect of the supply of the
Software and Documents. Except as expressly stated in this
Agreement, there are no conditions, warranties,
representations or other terms, express or implied, that are
binding on us. Any condition, warranty, representation or
other term concerning the supply of the Software and
Documents which might otherwise be implied into, or
incorporated in, this Agreement whether by statute, common
law or otherwise, is excluded to the fullest extent
permitted by law.
- 9. Suspension and Termination
- 9.1 If CTS becomes aware of an End User's
or Authorised User’s violation or breach of this Agreement,
CTS may specifically Suspend the End User or the applicable
Authorised User account. If End User or Authorised User
fails to comply with CTS's request to Suspend an Authorised
User Account, then CTS may without affecting any other
rights it may have:
- (a) Suspend the applicable Authorised User account.
The duration of any Suspension by CTS will be until
the applicable Authorised User has cured or
rectified the breach which caused the Suspension; or
- (b) Terminate this Agreement immediately by written
notice to End User if it commits a material or
persistent breach of this Agreement which it fails
to remedy (if remediable) within 14 days after the
service of written notice requiring End User to do
so.
- 9.2 Upon termination for any reason:
- (a) all rights granted to End User under this
Agreement shall cease;
- (b) End User must immediately cease all activities
authorised by this Agreement;
- (c) End User must immediately pay any Fee’s due to
CTS or Partner (as applicable) under this Agreement;
and
- (d) End User must immediately delete or remove the
Software and Documentation from all computer
equipment and/or virtual computer equipment it uses
or in its possession, and immediately destroy or
return to CTS (at CTS's option) all copies of the
Software and Documents in End User’s possession,
custody or control and, in the case of destruction,
certify to CTS that End User has done so.
- 10. Communications
- 10.1 Any notice given by CTS to End User,
will be deemed received and properly served immediately when
posted on the CTS
website, or in the case of either party 24 hours
after an e-mail is sent on a business day. In proving the
service of any notice, it will be sufficient to prove, in
the case of an e-mail, that such e-mail was sent to the
specified e-mail address of the addressee and in the case of
the website, visibility on the website.
- 11. Events outside CTS’s control
- 11.1 CTS shall not be liable or responsible
for any failure to perform, or delay in performance of, any
of CTS’s obligations under this Agreement that is caused by
an Event Outside CTS’s Control. An Event Outside CTS’s
Control is defined below in condition 11.2.
- 11.2 An Event Outside CTS’s Control means any act or event
beyond CTS’s reasonable control, including without
limitation failure of public or private telecommunications
networks.
- 11.3 If an Event Outside CTS’s Control takes place that
affects the performance of itsobligations under this
Agreement:
- (a) CTS’s obligations under this Agreement will be
suspended and the time for performance of its
obligations will be extended for the duration of the
Event Outside CTS’s Control; and
- (b) CTS will use reasonable endeavours to find a
solution by which CTS's obligations under this
Agreement may be performed despite the Event Outside
CTS's Control.
- 12. Miscellaneous
- 12.1 CTS may transfer its rights and
obligations under this Agreement to another organisation,
but this will not affect End User rights or obligations
under this Licence.
- 12.2 End User may only transfer its rights or obligations
under this User Licence if CTS consent in writing.
- 12.3 This Agreement constitutes the entire agreement between
CTS and End User and supersedes and extinguishes all
previous agreements, promises, assurances, warranties,
representations and understandings between CTS and End User,
whether written or oral, relating to its subject matter. End
User agrees that it shall have no remedies in respect of any
statement, representation, assurance or warranty (whether
made innocently or negligently) that is not set out in this
Agreement. End User agrees that it shall have no claim for
innocent or negligent misrepresentation or negligent
misstatement based on any statement in this Agreement.
- 12.4 If CTS fail to insist that End User perform any of its
obligations under this Agreement, or if CTS do not enforce
its rights against End User, or if CTS delay in doing so,
that will not mean that CTS have waived its rights against
End User and will not mean that End User do not have to
comply with those obligations. If CTS do waive a default by
End User, CTS will only do so in writing, and that will not
mean that CTS will automatically waive any later default by
End User.
- 12.5 Each of the conditions of this Agreement operates
separately. If any court or competent authority decides that
any of them are unlawful or unenforceable, the remaining
conditions will remain in full force and effect.
- 12.6 This Agreement, its subject matter and its formation
(and any non-contractual disputes or claims) are governed by
English law. CTS and End User both irrevocably agree to the
exclusive jurisdiction of the courts of England and Wales.
- 12.7 End User irrevocably appoints CTS of Lowry House, 17
Marble Street, Manchester, M3 2AW as its agent to receive on
its behalf in England or Wales service of any proceedings
under condition 12.6 above. Such service shall be deemed
completed on delivery to such agent and shall be valid until
such time as CTS has received prior written notice that such
agent has ceased to act as agent. If for any reason such
agent ceases to be able to act as agent or no longer has an
address in England or Wales, End User shall forthwith
appoint a substitute acceptable to CTS and deliver to CTS
the new agent's name and address and email address within
England and Wales.
- 13. Definitions.
- Authorised User means a
person contractually connected to the End User in the form
of an employee, contractor, agent or consultant who is
authorised by the End User to the use of a single mailbox or
object for a single user on a single physical or virtual
computer or within a directory environment in accordance
with this Agreement. The acts or omissions of any Authorised
User is considered an act or omission of the End User.
- Confidential Information means any
information in any form or medium obtained by or on behalf
of either party from or on behalf of the other party in
relation to this Agreement which is expressly marked as
confidential or which a reasonable person would consider to
be confidential, whether disclosed or obtained before, on or
after the date of this Agreement, together with any
reproductions of such information or any part of it
including the Software and the Documents;
- Contract Year means a 12-month period
commencing on the Effective Date of this Agreement or any
anniversary of it Documents means the information contained
at the following link: https://support.cloudm.io
and in varying mediums including but not limited to product
information, user manuals and operating instructions (not
including marketing material) that CTS or Partner (as the
case may be) makes available to End User.
- Effective Date means the commencement date
of this Agreement being the date that the Software is
activated by End User using a license key provided by CTS or
Partner.
- Fee's mean the amounts specified in the
Order invoiced or due to be invoiced to the End User by CTS,
or the Partner for use of the Software.
- Intellectual Property Rights means current
and future worldwide rights under patent law, copyright law,
trade secret law, trademark law, moral rights law and other
similar rights.
- Legal Process means a data disclosure
request made under applicable law, governmental regulation,
regulator; court order, subpoena, warrant, governmental
regulatory or agency request, or other valid legal
authority, legal procedure or similar process.
- Order means the End Users order for the use
of the Software as set out in writing between the parties
prior to the Effective Date either (i) directly with CTS,
(ii) through a third party website or (iii) through a
Partner as the case may be. The Order shall set out
(including but not limited to) the order number; date;
software; Fees, method of payment; destination platform;
source platform; destination domain; number of Authorised
Users, price per user, subtotal, additional charges such as
VAT or applicable tax; and End User details.
- Partner means an authorised reseller of the
Software paying CTS to provide access to End User for use of
the Software.
- Software means CloudM Migrate computer
software in object code form (and any fixes updates or
modified versions) which is owned by CTS and which is
provided either (i) directly by CTS through its own website
or a third party website; or (ii) through a Partner;
- Suspend means the immediate disabling of
access to the Software, or components of the Software, as
applicable, to prevent further use of the Software.
- Term means the term for the applicable
Software beginning on the Effective Date and continuing for
the duration of 12 months or as agreed in writing between
End User and Partner or End User and CTS as the case may be.