EULA - CloudM Migrate
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.
- 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):
- 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
- 6.1 CTS warrant that:
- 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.
- 7.1 End User is responsible for:
- 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.
- 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:
- 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.
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