Terms and Conditions
CLOUD CANARIES
END USER LICENSE AGREEMENT
(SaaS and HOSTED SERVICES)
PLEASE CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT AND OUR PRIVACY POLICY. BY CLICKING I ACCEPT OR TAKING ANY STEPS TO ACCESS OR USE CLOUDCANARIES.AI SERVICES YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND OUR PRIVACY POLICY AND AGREE TO BE BOUND BY EACH OF THEIR TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND OUR PRIVACY POLICY, DO NOT CLICK” I ACCEPT” AND YOU ARE NOT PERMITTED TO ACCESS OR USE CLOUDCANARIES.AI SERVICES.
The following terms and conditions govern all use of the Cloud Canaries websites (https://www.CloudCanaries.ai), the Cloud Canaries mobile phone application(s) and all content, services and products available at or through the websites and/or application (“Services” or “Site”) by the user (“user” “you” “your”). The Services are provided by, owned and operated by Cloud Canaries Inc. (“Cloud Canaries” “we” “us” “our”) a Delaware corporation with offices at 8 Merrill Street, Cambridge, MA 02139. The Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on this Site by Cloud Canaries (collectively, the “Agreement”).
If using the Cloud Canaries mobile phone application, you acknowledge and agree that by accepting the terms of this Agreement, a binding agreement is concluded solely between you and Cloud Canaries, and not with Apple Inc. ("Apple"), and that Cloud Canaries, not Apple, is solely responsible for the applications licensed hereunder and the content thereof.
Cloud Canaries may change, add or remove any part of this Agreement, or any other terms associated with the use of the Services, at any time, by providing notice in writing or electronically. Any changes shall become part of the Agreement and shall apply as soon as such a notice is sent. By continuing to use the Services after the notice is sent, you are indicating your acceptance of those changes.
1. ABOUT CLOUD CANARIES
1.1 Miners have used canaries to monitor their environments for centuries. Cloud Canaries likewise enable corporations and businesses an easy to use, inexpensive and robust early warning system by exercising cloud workloads, such as a web server, database, and compute.
1.2 Cloud Canaries simulate cloud workloads. Cloud Canaries report success, failure, and latency information. Cloud Canaries crowdsource from other Cloud Canaries to pinpoint failures. Information is collected, analyzed and actioned via standard messaging systems and displayed on Cloud Canary dashboards.
2. LICENSES; LICENSE RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, Cloud Canaries hereby grants to you a limited, personal, non-exclusive, non-transferable, non-sublicenseable, revocable license to remotely create, update, deploy and manage Cloud Canaries to access Cloud Canaries Services and features and to engage in permissible activities and participation thereon.
2.2 Third Party Licenses. The Cloud Canaries application and/or website may contain third party software which is subject to additional notices and/or terms and conditions. Such required third party software notices and/or additional terms and conditions are located at http://www.CloudCanaries.ai/thirdparty and are made a part of, and incorporated by reference into this Agreement. In addition, you acknowledge and agree that certain third party software which is not incorporated into the Cloud Canaries application and/or website may be required in order for you to use or enjoy the full benefit of the Services. You shall be fully responsible for obtaining a lawful copy of such software. Furthermore, your use of such separately acquired third party software shall be in accordance with any terms and conditions of the end user license agreement provided with such software. You acknowledge that your access to and use of the Services does not carry, and you do not receive under this Agreement any license, covenant not to sue, or other rights under any third party intellectual property rights or other rights.
2.3 License Restrictions. You agree that the license granted herein is solely for non-commercial purposes (i.e. you are not permitted to sell, rent, lease, or otherwise charge for access to or use of any Cloud Canaries or Dashboards created by you). In addition, you agree that you will not, nor permit others to: (a) attempt to reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover any source code, algorithms, methods or techniques embodied in the Cloud Canaries Services, application or website, except to the extent expressly permitted by applicable law, notwithstanding contractual obligations to the contrary, and then only after (i) you have notified Cloud Canaries in writing of your intended activities and the information sought and (ii) Cloud Canaries fails to provide such information within a reasonable period of time following such notice; (c) modify, transfer, assign, pledge, sublicense, rent, lease, sell, resell, or create derivative works based on the Cloud Canaries Services or any software, content or information thereon, including but not limited to any user interfaces related to the foregoing.; nor (d) distribute any content available through the Services except as expressly permitted.
2.4 Product Activation; Server Access Technology. You acknowledge and agree that the Services may include server access restrictions, security and other technology designed to prevent unauthorized use and copying beyond the scope of the licenses granted in this Agreement. In addition, you acknowledge and agree that the Services may include technology designed to access (both manually and automatically) the Cloud Canaries servers. You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any security technologies included as part of the Services.
2.5 No Support by Apple. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any of the Services and/or Cloud Canaries software.
2.6 User Access. You acknowledge and agree that your access to the Services from your computer, mobile phone, or tablet pc may require that you create a user account, including the use of a user name and password or other logon credentials (altogether, Logon Credentials). It is important that you remember your Logon Credentials and that you keep them in a safe offline location. If you forget your Logon Credentials you may not be able to access the Services. You are solely responsible for maintaining the confidentiality of your Logon Credentials and for all activities that occur through the use of your Logon Credentials. you agree to: (i) immediately notify Cloud Canaries of any unauthorized use of your user account or any other breach of security of which you become aware, and (ii) ensure that you secure your user account and computer, mobile phone, or tablet pc from unauthorized third party access. Cloud Canaries will not be liable for any loss or damage arising from your failure to comply with this Section. Please note that you may be issued new Logon Credentials or required to change your Logon Credentials from time to time.
2.7 Privacy. You acknowledge and agree that your access to the Services may require you or provide you the option to transmit to Cloud Canaries certain personal and non-personal information about you, such as your Login Credentials, name, email address, telephone number, mailing address, company name, employment title, and/or certain technical information about your system hardware and software. Cloud Canaries will collect, use and in certain limited circumstances disclose your personal information (e.g. to contractors and service providers who are assisting Cloud Canaries in the operation or hosting of the Cloud Canaries website, application, or other software) in accordance with its Privacy Policy. As a condition to accessing and using the Services, you are required to accept the terms of our Privacy Policy. You hereby acknowledge and agree that you have read our Privacy Policy which is available at www.CloudCanaries.ai/privacy and is incorporated herein by this reference.
2.8 Security. Cloud Canaries has implemented physical, electronic and managerial procedures in order to help safeguard and prevent unauthorized access, use and/or disclosure of your personal and other sensitive information Cloud Canaries has collected from you. Although Cloud Canaries uses reasonable efforts to safeguard the security of such information, transmissions made on or through the Internet and information stored on Cloud Canaries's servers are vulnerable to attack and cannot be guaranteed to be secure. In addition, submissions made via e-mail are not protected by encryption and are vulnerable to interception during transmission. In addition, please be aware that any Content which you submit in a public forum can be freely accessed by third parties. You covenant that you will not attempt to access, upload, distribute or make available for distribution any proprietary and/or confidential Content unless you have sufficient rights and proper authorization to do so and you further agree that you will not distribute nor make available for distribution any proprietary and/or confidential Content to third parties who do not themselves have sufficient rights and proper authorization to access and/or download such proprietary and/or confidential Content.
2.9 Modifications. Cloud Canaries reserves the right, at any time in Cloud Canaries's discretion, to (i) modify the features, functionality and/or product specifications for the Services without notice to you, and/or (ii) to commence charging fees in order to access and use the Services or to increase any such fees already being charged.
2.10 Canary Review. Cloud Canaries disclaims any responsibility for any harm resulting from the use by users of the Services.
2.11 Copyright Infringement and DMCA Policy. As Cloud Canaries asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by CloudCanaries.ai violates your copyright, you are encouraged to notify Cloud Canaries in accordance with Cloud Canaries's Digital Millennium Copyright Act (“DMCA”) Policy (see below). Cloud Canaries will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material that are contained on the Website. Cloud Canaries may terminate a visitor's access to and use of the Website at Cloud Canaries's sole discretion if Cloud Canaries determines that the visitor or user is or may be infringing on the copyrights or other intellectual property rights of Cloud Canaries or others. In the case of such termination, Cloud Canaries will have no obligation to provide a refund of any amounts previously paid to Cloud Canaries.
DMCA/IP Notification Policy. To notify Cloud Canaries of infringing or unlawful content, please provide Cloud Canaries with the following information:
- Your name, address, telephone number and e-mail address;
- A description of the exact location on the Site of the infringing or unlawful content;
- A description of the claimed infringing or unlawful content, specifying which parts you belief infringe or are unlawful and which parts you believe should be removed;
- In the event that you believe that the content infringes your rights, please include a detailed statement specifying your asserted rights and why the content infringes them.
- In the event that you believe that the content is unlawful, please include a detailed statement specifying why you believe that the content breaches a particular law; and
- A sworn and signed statement that the information provided is accurate and that you are directly or indirectly damages by the content.
3. FEEDBACK
3.1 Feedback. If you elect to provide any feedback or comments of any nature to Cloud Canaries, all of your feedback and comments shall be the sole and exclusive property of Cloud Canaries, and Cloud Canaries shall have the right to use such feedback in any manner and for any purpose in Cloud Canaries's discretion without remuneration, compensation or attribution to you, provided that Cloud Canaries is under no obligation to use such feedback.
4. OWNERSHIP. Cloud Canaries retains all right, title and interest (including all intellectual property rights and other rights) in and to the Services, including without limitation the Cloud Canaries trademarks, copyrights, software, the documentation and updates of any of the foregoing, and any feedback submitted by you in accordance with Section 3.1, subject only to the limited licenses expressly set forth in Section 2.1 of this Agreement. You do not acquire any other rights, express or implied, in the Services other than those rights expressly granted under this Agreement. However, you do retain the rights and/or the ownership in all content and data uploaded by you. You hereby grant Cloud Canaries, its affiliates, contractors and each of their agents a non-exclusive, irrevocable, worldwide license to (a) upload, copy and store the Content; (b) extract some or all of the Content and data from your account (c) create and store Content derived from some or all of the data from your account and (d) distribute or otherwise use for marketing and promotional purposes the Content you make publicly available through your account. You hereby represent and warrant that you have the right to grant the foregoing license to Cloud Canaries and that Cloud Canaries's exercise of its rights hereunder will not infringe or misappropriate the intellectual property rights or other rights of any third party.
5. NO WARRANTY; LIMITATION OF LIABILITY
5.1 No Warranty. THE SERVICES, SITE, APPLICATION OR SOFTWARE MAY CONTAIN ERRORS AND DEFECTS OR MAY SUFFER INTERMITTENT DOWNTIME AND IS PROVIDED "AS IS", AS-AVAILABLE, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CLOUD CANARIES AND ITS LICENSORS (INCLUDING BUT NOT LIMITED TO APPLE) (COLLECTIVELY REFERRED TO AS "CLOUD CANARIES" FOR THE PURPOSES OF SECTION 5) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CLOUD CANARIES OR ITS REPRESENTATIVE SHALL CREATE A WARRANTY. CLOUD CANARIES DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, TIMELY OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SHOULD THE CLOUD CANARIES .AI SERVER PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICES PROVIDED BY CLOUD CANARIES. YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
5.2 Limitation of Liability. EXCEPT TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS PROHIBITED BY LAW, NEITHER CLOUD CANARIES NOR ANY OF ITS LICENSORS SHALL BE LIABLE TO YOU FOR PERSONAL INJURY, OR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, EVEN IF CLOUD CANARIES HAS BEN ADVISED OF THE RISK OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. The parties acknowledge that the limitations of liability in this Section 5.2 and in the other provisions of this Agreement and the allocation of risk herein are an essential element of the agreement between the parties, without which Cloud Canaries would not have entered into this Agreement.
5.3 No Liability for Third Party software. Cloud Canaries may incorporate or provide access to third-party websites and may provide links, widgets, or references to websites operated by third parties. We do not monitor or investigate such websites and we are not responsible for the content, functionality, or practices of such websites. Cloud Canaries has no control over or responsibility for the maintenance or any outages of third-party websites or widgets. Inclusion of links to third-party websites on our Site does not imply approval or endorsement of the linked website by us. If you decide to leave our Site and access these third party websites, you do so at your own risk. Cloud Canaries suggests that you read the terms of use and privacy policies (if any) on those third party websites. You agree that Cloud Canaries has no liability for any damage or loss of any type that is a result of your use of a third party website.
6. INDEMNITY.
You agree to defend Cloud Canaries, its affiliates, employees, agents, assigns and licensors against any third party suits, actions, claims or proceedings (i) alleging that the Content uploaded by you infringes or misappropriates a third party's intellectual property or other rights or (ii) resulting from your breach of or failure to comply with any term, condition, representation or covenant under this Agreement, and you agree to indemnify and hold Cloud Canaries its affiliates, employees, agents, assigns and licensors harmless from all damages, liabilities, costs and expenses, including reasonable attorneys' fees, incurred by or awarded against Cloud Canaries or its affiliates, employees, agents, assigns and licensors that may result from any such third party claim.
7. TERMINATION. This Agreement shall remain in effect until terminated in accordance with its terms. You may terminate this Agreement at any time by notifying Cloud Canaries in writing (or electronically). Cloud Canaries may terminate this Agreement at any time upon by notifying you in writing (or electronically). Upon termination of this Agreement, you will cease all use of the Services. Note that upon termination of this Agreement you will no longer be able to access any Content, features, or Services and Cloud Canaries shall have the right to delete the same. Sections 3, 4, 5, 6, 7 and 8 will survive any termination of this Agreement.
8. GENERAL TERMS
8.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the internal laws of the Commonwealth of Massachusetts without giving effect to any choice of law rule. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Middlesex County, Massachusetts in connection with any claim, action, suit, or proceeding relating to this Agreement, except that either party may seek injunctive, equitable or similar relief from any court of competent jurisdiction. Any claims of any nature whatsoever sought to be made by you with respect to the Services, including but not limited to any product liability or intellectual property infringement claims, shall be solely addressed to Cloud Canaries, and not Apple, and Cloud Canaries shall be solely responsible for the investigation, defense, settlement and discharge of any such claims.
8.2 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
8.3 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Cloud Canaries which may be withheld in Cloud Canaries's discretion. Any purported assignment, transfer or delegation by you shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
8.4 Legal Compliance; Export Administration; and Government Users. By accepting this Agreement you represent and warrant that you (i) are not located in a jurisdiction that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a terrorist supporting country, (ii) you are not listed on any U.S. government list of prohibited or restricted parties, and (iii) you will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively Export Controls). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer any Content, to any destination, person or entity restricted or prohibited by the Export Controls. If you are an agency or instrumentality of the United States Government, the Cloud Canaries software constitutes commercial computer software and the documentation constitutes commercial computer software documentation, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Cloud Canaries software and documentation are governed by the terms of this Agreement. The manufacturer of the software for the Services is Cloud Canaries, Inc. 8 Merrill Street, Cambridge MA 02139.
8.5 Third Party Beneficiary. You and Cloud Canaries acknowledge and agree that Apple, and any of its subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of the terms of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereunder.
8.6 Injunctive Relief. You acknowledge and agree that a breach or threatened breach of any covenant contained in this Agreement would cause irreparable injury, that money damages would be an inadequate remedy and that Cloud Canaries shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain you, from such breach or threatened breach. Nothing in this Section 8.6 shall be construed as preventing Cloud Canaries from pursuing any and all remedies available to it, including the recovery of money damages from you.
8.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; and no other act, document, usage or custom shall be deemed to amend or modify this Agreement.