Last Revised: December 2019
1.1 CloudWize is the developer and proprietor of a technology for analyzing and evaluating the costs and performance of the cloud hosting and computing services (the “Cloud Services”), which includes a proprietary software-as-a-service solution which is made available by CloudWize (the “Services”). The Cloud Services that are in use by the Customer are detailed in the Order Subject to Customer’s compliance with its obligations under these Terms, CloudWize shall make the Services and all content and/or analyses and/or results and/or reports generated via the use of the Services in connection with the End User Account Data (both as defined in Section 1 below) (the “Output”) available to Customer, for the applicable Term as set forth hereunder.
1.2 Access and Use.
1.2.1 CloudWize shall issue and provide Customer with personal access credentials (“User IDs”) for Customer’s system administrators and personnel designated to use the Services on its behalf (“Personnel”). Customer and its Personnel may only access and use the Services through the User IDs issued to them by CloudWize. Customer is solely responsible for maintaining the confidentiality of the User IDs. Any instruction, action or activity occurring through any such User IDs shall be deemed to be provided and/or taken by Customer, and Customer shall be solely responsible for all activities that occur under such User IDs, including for any unauthorized use of such User IDs or any other breach of security, or any related damage or loss.
1.2.2 Customer shall ensure that: (i) the access and use of the Services by Customer shall be by no more than the number of Personnel for which Customer has received User IDs; (ii) the Cloud Services login details are provided in proper format as specified by CloudWize (“Customer Login Details”); (iii) its Personnel are fully skilled and familiar with the use and operation of the Services; and (iv) the Services shall be reasonably used.
1.3 Order Forms. The description of the Services and the applicable Fees shall be specified in one or more order forms, proposal or other document (whether provided to Customer through an online or offline format) which are executed by the Parties pursuant to these Terms (each, an “Order ”). Each Order Form will be governed by the terms of these Terms. In the event of any conflict or inconsistency between the terms and conditions of these Terms and the terms of any Order Form, the terms and conditions of these Terms shall govern, and the conflicting or inconsistent provision in the Order Form will have no force or effect unless expressly stated otherwise in the Order Form.
2.1 Subject to Customer compliance with the terms and conditions of these Terms, CloudWize hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable, limited right during the Term to access and use, and to allow its Personnel to access and use the features and the functions of the Services solely for internal business purposes in accordance with the purchased services described in the Order Form.
2.2 Usage Restrictions. Customer shall not: (i) make the Services available to, or use the Services for the benefit of, anyone other than Customer; (ii) copy or make a derivative work of the Services or any part, feature, function or user interface thereof, other than for normal use of the Services for Customer’s own internal business (including, but not limited to, configuration of the Services and/or developing of new features), (iii) license, sublicense, sell, resell, transfer or assign, distribute, rent or lease any Services or the Reports provided to Customer via the Services, or include the Services in a service bureau or outsourcing offering, (iv) knowingly use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, including in violation of applicable law with respect to third party rights, (v) knowingly use a Services to store or transmit malicious code, (vi) knowingly or negligently interfere with or disrupt the integrity or performance of the Services or third party data contained therein, (vii) attempt to gain unauthorized access to the Services or its related systems or networks, (viii) conceal or remove any copyright or proprietary notices contained in any Reports and/or other materials provided via the Services (ix) access and/or the Services and/or the Reports provided therein in order to build a competitive product or service, including creating any indices therefrom, (x) reverse engineer the Services, (xi) permit access to or use the Services in a way that circumvents a contractual usage limit, and/or (xii) allow and/or enable a third party to do any of the aforementioned.
2.3 Availability. During the Term, CloudWize shall use commercially reasonable efforts to ensure the Services’ availability. CloudWize’s obligations hereunder are based on and subject to the Customer: (i) complying with CloudWize’s instructions, if any, for performing any corrective action; (ii) maintaining the validity of Customer Login Details and; and (iii) maintaining the connectivity (with acceptable bandwidth) of the Customer’s workstations to the main Internet, as well as creating and maintaining firewall definitions and opening required ports that permit access to the Services. The following shall not be considered within the definition or calculation of Downtime: (i) scheduled downtime; (ii) Services unavailability that is attributable to: (a) causes by unavailability or inaccessibility of Cloud Services providers, or beyond CloudWize’s reasonable control or the performance of any third party hosting provider or communications or internet service provider; (b) any actions or omissions of the Customer or any third party acting on its behalf; and/or (c) Customer’s or any third party’s equipment or software; (d) Services unavailability caused by the suspension and termination of Customer’s right to use the Services in accordance with these Terms; and (iii) separate instances of Service unavailability of less than five (5) minutes duration each. Customer acknowledges that CloudWize may from time to time auto update the Services (which may include adding or removing functionality) without a prior notification.
CloudWize shall provide the Customer with technical support and training services during the Term, as specified in the Order. CloudWize shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services that will be provided. Any training materials provided to Customer may be used only in connection with the Service.
4.1 Proprietary Rights. CloudWize owns and shall continue to own all rights, title and interest in and to the Services, including modifications, enhancements, derivatives, substitutes, or emulations of the aforementioned and any Intellectual Property Rights therein, including any item which is the outcome of customization work, design, development and implementation done by CloudWize, by or on behalf of Customer. As between the Parties, the Output collected and/or generated via the Services, shall be deemed CloudWize’s Intellectual Property. These Terms does not convey any right, title or interest in and to the CloudWize’s Intellectual Property, except for the license granted in accordance with these Terms. “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights, including but not limited to copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, utility models and rights in designs.
4.2 License to Use Output. CloudWize hereby grants Customer a perpetual non-exclusive, non-transferable, royalty-free license to use the Output generated via the use of the Services solely for the benefit of Customer, provided however that such license excludes any use of the above in breach of the use restrictions set forth in Section 2 of these Terms. CloudWize undertakes to refrain from use of the Report generated for Customer via Customer’s use of the Services, for any purpose other than to (i) provide the Services, and (ii) develop, improve and customize the Services.
4.3 License to Use Feedback, End User Account Data and Plan Data. If Customer contacts CloudWize with any suggestions or feedback data regarding the Services, which may include suggestions for, or feedback concerning, customizations, features, improvements, modifications, corrections, enhancements, derivatives or extensions, such feedback shall be deemed to be the sole property of CloudWize and Customer hereby irrevocably transfers and assigns to CloudWize all Intellectual Property Rights in such feedback and waives any and all moral rights that Customer may have in respect thereto.
5.1 Mutual Representations. Each Party hereby represents, warrants, and covenants to the other Party that (i) it is duly organized, validly existing and in good standing under the laws of the state of its domicile and is in good standing in each other jurisdiction in which it or any of its affiliates (to the extent such affiliate is related to these Terms) are7 established (if any); (ii) it has power and authority to transact its business and to accept to these Terms and to perform its obligations under these Terms; and (iii) its entry into these Terms and performance thereof does not violate or constitute a breach of any agreement to which it is a Party or otherwise bound. Each Party hereby represents, warrants, and covenants to the other Party that in performing its obligations and exercising its rights under these Terms, it will comply (and shall require all the its personnel providing Services hereunder to comply) with all applicable laws.
5.2 Customer’s Representations. While using the Services, certain Customer Data will be made available to CloudWize. Customer hereby grants CloudWize royalty-free, fully-paid, non-exclusive right to use the Customer Data in order to: (i) to provide the Services to the Customer; (ii) to administer and make improvements to the Services; and (iii) to collect and analyze anonymous information. Customer acknowledges that the Services does not operate as an archive or file storage service and that Customer is solely responsible for the backup of Customer Data alone and implement back up plans and safeguards appropriate for its requirements. Customer represents and warrants that it owns or has obtained the rights to all of the rights subsisting in the Customer Data and Customer has the right to provide CloudWize the license granted herein to use such Customer Data in accordance with these Terms. Customer shall have sole responsibility for the reliability, integrity, accuracy and quality of the Customer Data. “Customer Data” means Customer Login Details, data obtained by CloudWize from the Cloud Services (including, without limitation, reports, usage, technical and meta data) or data provided by Client for the purpose of and in connection with using the Services.
5.3 The Services include third party open source software that are subject to third party terms and conditions. If there is a conflict between any such third party terms and the terms of these Terms, then such third party terms shall prevail but solely in connection with the related third party open source software. A list of any third party open source software and related third party terms is available at the Service user interface.
6.1 Subscription Fees. In consideration for the Services, Customer shall pay CloudWize the amounts set forth on each Order Form (“Fees”). Upon the commencement of each Renewal Term, CloudWize reserves the right to increase the Fee at its sole discretion.
6.2 Payment Terms and Taxes. If not otherwise specified in the Payments Schedule, the Fees shall be paid within thirty (30) days after receipt of invoice. Any payment not received by CloudWize within such period shall accrue interest at a rate of one percent (1%) per month, or the highest rate allowed by applicable law, whichever is lower. All Fees are non-cancelable for the stated Subscription Period and sums paid are non-refundable, except as expressly stated under the Agreement. All Fees are stated and payable in US Dollars, and are exclusive of VAT. Customer shall bear and pay all taxes related to or arising from these Terms, except for those taxes based on CloudWize’s income. Customer may not withhold or set off any Fees due to CloudWize hereunder.
7.1 EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED BY CLOUDWIZE TO CUSTOMER “AS IS” AND CLOUDWIZE MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICES AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT POSSIBLE BY LAW.
7.2 CLOUDWIZE, DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING THE OUTPUT WHICH CUSTOMER OBTAINS THROUGH USE OF THE SERVICES, OR THAT THE OUTPUT IS COMPLETE OR ERROR-FREE. THE OUTPUT DOES NOT CONSTITUTE AN ADVICE, AND CUSTOMER UNDERSTANDS IT MUST DETERMINE FOR ITSELF THE NEED TO MAKE ANY CHANGES TO THE CLOUD SERVICES REGARDING THE SUBJECT MATTER OF THE OUTPUT. CUSTOMER’S USE OF AND RELIANCE UPON THE SERVICES AND OUTPUT IS ENTIRELY AT CUSTOMER’S SOLE DISCRETION AND RISK.
7.3 Aggregate Liability. In no event SHALL CLOUDWIZE’S aggregate liability for any and all claims, losses or damages arising out of or relating these Terms, THE Services AND THE OUTPUT (whether in contract, equity, negligence, tort or otherwise) exceed the aggregate fees ACTUALLY paid by Customer to CLOUDWIZE under these Terms during the TWELVE (12) month period immediately preceding the date upon which the applicable cause of action arises.
7.4 Indirect Damages. EXCEPT FOR PARTY’S WILFUL MISCONDUCT, CUSTOMER’S BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 (CONFIDENTIAL INFORMATION), BREACH OF THE CLOUDWIZE’S INTELLECTUAL PROPERTY RIGHTS OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), Under no circumstances will either party be liable for INDIRECT, special, incidental consequential damages OR LOST OF PROFIT (including, without limitation, loss resulting from business interruption, LOSS OF DATA, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES), even if a party has been advised of the possibility or likelihood of such damages. neither party SHALL be liable to the other party for any delay, loss or damage attributable to any service, product or action of any person other than its own and its employees.
8.1 Confidentiality. Each Party will hold all Confidential Information of the other Party, whether received prior to, on or after the Effective Date, in strict confidence and shall not directly or indirectly use (other than for the purposes as permitted hereunder), copy, transfer or disclose any such Confidential Information, unless specifically authorized by the other Party in writing. Each Party understands and acknowledges that all items of Confidential Information of the other Party are important, material and confidential trade secrets of the other Party and affect the successful conduct of its business. “Confidential Information” means the confidential and proprietary information of a Party, including any and all ideas, information, concepts, designs, logos, names, know how, techniques, processes, methods, inventions, products, works of authorship, discoveries, developments, source code and object code, other programming code, algorithms, innovations, improvements and other proprietary information of a Party of any kind, whether tangible or intangible, whether in written or other form, and its technical information, and operating procedures and production technologies, that is labeled or otherwise designated as confidential, or that by its nature would reasonably be expected to be kept confidential. Without limiting the generality of the above, CloudWize’s Confidential Information shall also include the Services and all intellectual property embodied therein and all intellectual property rights relating thereto. Notwithstanding the foregoing, information shall not be considered Confidential Information to the extent it: (i) is already known to the receiving Party free of any restriction at the time it is obtained from the other Party; (ii) is subsequently learned from an independent third party free of any restriction and without breach of these Terms; (iii) becomes publicly available through no wrongful act of either Party; or (iv) is independently developed by one Party without reference to any Confidential Information of the other. If Confidential Information is required to be disclosed by law, regulations, court order or subpoena, the receiving Party shall immediately notify the disclosing Party prior to making such disclosure in order to afford the disclosing Party a reasonable period of time to oppose to such order. The terms and conditions of the Agreement will be deemed to be the Confidential Information of each Party and will not be disclosed without the prior written consent of the other Party, provided however, that each Party may reveal the existence and terms of these Terms without obtaining prior written consent of the other Party: (i) in the course of a due diligence process conducted by a third party in connection with a potential investment, acquisition, merger or other similar transaction involving such Party; or (ii) for compliance with applicable regulatory and legal requirements.
8.2 Restrictions and Obligations. The receiving Party shall: (i) use Confidential Information received by it solely to carry out the purposes of these Terms and for no other purpose whatsoever; (ii) limit access to any Confidential Information received by it only to its employees and/or contractors who have a need to know and only for use in connection with these Terms; (iii) advise those employees and/or contractors having access to the Confidential Information of the proprietary nature thereof and of the obligations set forth in these Terms; (iv) take appropriate action by agreement with those employees and/or contractors having access to the Confidential Information to fulfill its obligations under these Terms; (v) safeguard all Confidential Information received by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own similar information or material; and (vi) upon the disclosing Party’s request, return or destroy and certify destruction of all copies, notes, packages, diagrams, computer memory media and all other materials containing any portion of the Confidential Information to the disclosing Party. It is understood and agreed that each Party assumes full liability for a breach by any of its agents, employees or contractors of this Section 8. It is hereby clarified that each Party’s confidentiality and non-use obligations under this Section 38 shall survive the expiration or termination of these Terms, and remain in effect until each such Confidential Information is no longer deemed as “Confidential Information” as defined herein.
8.3 Remedies. The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and agree that the non-breaching Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
9.1 Customer Indemnity. Customer shall defend, indemnify and hold harmless CloudWize and its officers, directors, shareholder, employees, affiliates and agents (the “CloudWize Indemnitee”) from and against all costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, finally awarded, arising from any third party claim that: (i) the Output, Customer’s use of the Service, or other content violate any third party rights; or (ii) that Customer failed to obtain any necessary permit, license or consent of a third party, including but not limited to, the Cloud Services providers, in connection with these Terms.
9.2 CloudWize Indemnity. CloudWize shall defend, indemnify and hold harmless Customer and its officers, directors, shareholder, employees, affiliates and agents (the “Customer Indemnitee”) from and against all costs, damages, losses and expenses , including reasonable attorneys’ fees and other legal expenses, finally awarded arising from a third party claim that the Services infringe or violate a patent, copyright, trademark or trade secret of such third party. If Customer’s use of the Services is, or in CloudWize’s opinion is likely to be, enjoined due to the type of claim specified in this Section 2, CloudWize may, at its sole option and expense, and as Customer’s sole remedy: (i) procure for Customer the right to continue using the Services under the terms of these Terms; (ii) replace or modify the Services so that they are non-infringing and substantially equivalent in function to the enjoined Services; or (iii) if options (i) and (ii) above cannot be accomplished despite CloudWize’s reasonable efforts, then CloudWize may terminate Customer’s rights and CloudWize’s obligations hereunder with respect to such Services and refund to Customer the unused portion of the Fees already paid by Customer.
9.3 As a condition to the defense and indemnity set forth above, the CloudWize Indemnitee or the Customer Indemnitee, as applicable (the “Indemnified Party”) shall give the other Party (the “Indemnifying Party”) prompt notice of any such claim made against it and the Indemnifying Party shall be entitled, by written notice to such Indemnified Party, to assume sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof (collectively, “Claim”), at its own expense, provided that (i) no settlement, consent order or consent judgment which involves any placement of a financial burden or admission of any liability or wrongdoing, act or omission on the part of the Indemnified Party may be agreed to by the Indemnifying Party without the Indemnified Party’s prior written consent; and (ii) the Indemnifying Party shall keep the Indemnified Party informed of the status and progress of such Claim, the defense thereof and/or settlement negotiations with respect thereto. The Indemnified Party shall give the Indemnifying Party all reasonable assistance, at Indemnifying Party’s cost and expense, necessary in connection with such defense. The Indemnified Party shall have the right to employ separate counsel in the defense of any such claim and participate in the defense thereof.
9.4 The provisions of this section 9 set forth CloudWize’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of intellectual property rights of any kind.
10.1 Term. These Terms shall commence as of the Effective Date set forth under the Order Form, and subject to Customer’s compliance herewith, will continue for the Initial Subscription Period(s) set forth under the Order Form executed pursuant hereto, unless terminated earlier as provided in these Terms. Upon the lapse of each Initial Subscription Period, these Terms (and the respective Order Form) shall automatically renew for subsequent periods of one (1) year (each, a “Renewal Term”, and collectively with the Initial Subscription Period – the “Term”), unless either Party notifies the other Party of its intent not to renew at least thirty (30) days prior to the beginning of the applicable Renewal Term. The expiration or termination of one Order Form but not of these Terms shall not affect any other Order Form.
10.2 Termination for Convenience. Either Party shall have the right to terminate these Terms by notice in writing within thirty (30) days of receipt of such notice.
10.3 Termination for Breach. If either Party materially breaches these Terms, the non-breaching Party may terminate these Terms upon provision of written notice to the other Party, provided that the breaching Party has failed to cure such breach within thirty (15) days following its receipt of such notice. CloudWize may terminate these Terms immediately in its sole discretion upon Customer’s breach of Sections 2, 2.3, 5, 8 of these Terms.
10.4 Termination for Bankruptcy. Either Party may terminate these Terms in its entirety if the other Party (i) becomes insolvent or is unable to meet its debts as they mature, (ii) files a voluntary petition in bankruptcy or seeks reorganization or to effect a plan or other arrangement with creditors, (iii) applies for, consents to or acquiesces in the appointment of any receiver or trustee for all or a substantial part of its property, or if any such receiver or trustee is appointed and not discharged within thirty (30) days after the date of such appointment.
10.5 Effects of Termination. Upon expiration or termination of the Agreement for any reason, (i) all rights granted herein, and any Order Form executed pursuant hereto, shall terminate immediately; (ii) each Party shall promptly return to the other Party, or destroy and certify the destruction of, all Confidential Information to the other Party; (iii) Customer and its Personnel shall immediately cease to use the Services; (iv) Customer shall remit in full all payments due to CloudWize according to these Terms and all Order Form pursuant thereto (and in the event of termination by CloudWize, only such payments accruing prior to the date thereof), and following such final payment, neither Party will be entitled to receive any payment from the other Party; (v) the following provisions shall survive the expiration or termination of these Terms: 3, 7, 8, 9, 10.5 and 11; and (vi) all other performance obligations of both Parties under these Terms shall cease.
11.1 CloudWize (and its affiliates) may use Customer’s name and logo and disclose that Customer is CloudWize’s customer in CloudWize’s marketing material (including website).
11.2 All notices, consents and other communications required under these Terms will be in writing and deemed delivered by confirmed email and/or to the Party’s address included in the preamble to these Terms and in each instance will be deemed given upon receipt.
11.3 These Terms, together with all schedules, constitutes the entire agreement of the Parties, and supersedes any prior agreements between the parties with respect to the subject of these Terms. These Terms may be modified only by a writing agreement signed by an authorized representative of each party.
11.4 CloudWize may change these Terms from time to time, and such change will become effective upon the date on which it is posted on the CloudWize’s website. Customer is responsible for checking CloudWize’s website regularly for such changes. By continuing to access or use the Services Customer agree to be bound by the revised Terms.
11.5 These Terms shall be governed by and construed in accordance with the laws of the State of Israel exclusive of its conflict of laws principles. Any dispute relating to these Terms will be exclusively resolved in the applicable courts located in Tel Aviv, Israel. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to these Terms. CloudWize may seek immediate relief at law or in equity for any breach by Customer in any appropriate court.
11.6 Nothing contained in these Terms is intended or is to be construed to create a partnership, joint venture or agency relationship. If any provision of these Terms shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect.
11.7 Any failure by a Party to require compliance by the other party with any of the terms of these Terms will in no way affect the such Party’s right to enforce the same, nor will any waiver by a Party of any breach of any term of these Terms constitute a waiver of any succeeding breach.
11.8 Neither party shall be liable to the other for any performance delay or failure to perform hereunder, exclusive of payment obligations, due to any act, omission or condition beyond the reasonable control of the affected party.
11.9 These Terms may not be transferred or assigned by Customer without the prior written consent of CloudWize; but may be transferred or assigned by CloudWize. Any attempted assignment or transfer of any of the rights, duties, or obligations herein shall be void if not in compliance with this subsection. These Terms shall inure to the benefit of and be binding upon each Party’s successors and permitted assigns.