These Terms of Service set forth the terms and conditions pursuant to which The Cloud Miner Limited (“CloudMiner”) provides the services set forth on the Order Form ( “the Services”) to the Customer set forth on the Order Form referencing these terms (“Order Form”) (collectively, the “Terms of Service”).
Eligibility. Customer represents and warrants that (a) any individual using Customer’s Account (defined below) or otherwise accessing the Services on Customer’s behalf is at least 18 years of age and (b) Customer’s use of the Services shall (i) be in compliance with all applicable laws, rules and regulations and (ii) not conflict with or violate any other agreement to which Customer is a party.
Registration. To use the Services, Customer must register for an account on the Services (an “Account”). Customer must provide accurate and complete information for Customer’s Account and keep all such Account information updated. Customer may create additional user accounts in connection with Customer’s Account, for Customer’s employees, contractors and agents, up to the amount indicated on an applicable Order Form (each such user, an “Authorized User”). Customer shall not permit more than the authorized number of Authorized Users to use Customer’s Account in any manner, and shall not, nor shall Customer permit any of its Authorized Users, to share any access credentials for the Services with any other individuals or entities. Customer is solely responsible for the activity that occurs on Customer’s Account, including on Authorized User Accounts, whether or not authorized, and for keeping all access credentials associated with Customer’s Account, including Authorized User Accounts, secure. Customer shall promptly notify CloudMiner of any breach of security or unauthorized use of Customer’s Account.
Content. “Content” means information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. As between the parties, all Content, except for Customer Data (as defined below), is owned by CloudMiner or its licensors. Subject to these Terms of Service, CloudMiner grants to Customer a worldwide, non-exclusive, non-sublicensable, and non-transferable license to access and use Content solely for purposes of using the Services for Customer’s internal use.
Restrictions on Use of the Services. Customer shall not directly or indirectly (i) sell, license, sublicense, distribute, copy, rent or lease the Services, or include the Services in a service bureau, time-share outsourcing offering or otherwise make the Services available to, or use the Services for the benefit of, any third party, or transfer any of the rights received hereunder; (ii) interfere with or disrupt the integrity or performance of the Services or any third party data contained therein or attempt to gain unauthorized access to the Services or its related systems or networks; (iii) copy, modify, translate or create derivative works based on the Services or any underlying software or any part, feature, function or user interface thereof, including by framing or mirroring any part of any Services or any Content; (iv) access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service; (v) decompile, disassemble, decipher or reverse engineer the Services, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, (except to the extent such restriction is prohibited by applicable statutory law); (vi) remove any copyright notices, information and restrictions contained in the Services or any Content; (vii) bypass, circumvent or attempt to bypass or circumvent any measures CloudMiner may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services) or take any action that imposes or may impose (as determined by CloudMiner in its sole discretion) an unreasonable or disproportionately large load on CloudMiner’s (or CloudMiner’s third party providers’) infrastructure; (viii) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Services; or (ix) otherwise take any action in violation of CloudMiner’s guidelines and policies, including these Terms of Service.
Availability. CloudMiner is not and will not be responsible or liable for any failure in the Services resulting from or attributable to (i) Customer Data or failures to deliver Customer Data to CloudMiner; (ii) failures in any telecommunications, network or other service or equipment outside of CloudMiner’s facilities; or (iii) any force majeure or other cause beyond CloudMiner’s reasonable control. CloudMiner does not guarantee that the Services or any Content will be available, or that any Content that is available is or will continue to be accurate, complete, or error-free. CloudMiner reserves the right, but does not have any obligation, to remove, edit, modify or block access to any Content in its reasonable discretion, at any time, without notice to Customer.
Definition. “Customer Data” means any and all electronic data, Content and information submitted to the Services by Customer or by a third party on Customer’s behalf, or that is collected and processed by Customer or by a third party on Customer’s behalf directly from Customer’s use of the Services.
License to Customer Data. Customer hereby grants CloudMiner a non-exclusive, perpetual, worldwide, royalty-free, fully paid-up right and license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit Customer Data in connection with the Services. Customer acknowledges and agrees that (i) the quality of the Services depends on the uploading or other provisioning of the Customer Data into the Services and (ii) CloudMiner will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data. If Customer elects to publicly share certain Customer Data posted on portions of the Services, Customer also hereby does and shall grant each user of the Services a non-exclusive, irrevocable right and license to access such Customer Data that are viewable to such other users or the public, and to use, edit, modify, reproduce, distribute and display such Customer Data in accordance with the terms, features and settings of the Services made available by CloudMiner and any additional rights and restrictions granted by Customer to such users, including after termination of Customer’s Account or the Services, for so long as such Customer Data is made available on the Services.
Aggregate Data. Notwithstanding anything to the contrary set forth herein, CloudMiner is expressly authorized to use data derived from Customer Data and data regarding Customer’s use of the Enterprise Service, in anonymized and aggregated form, to analyze and improve the Services and for distribution in general benchmarking data and industry reports, provided that no personally identifying information of Customer or Customer’s users is revealed.
Representations and Warranties. Customer represents, warrants and covenants that (i) all Customer Data is accurate and compliant with all applicable laws, rules and regulations; (ii) Customer owns all rights, title and interest in and to the Customer Data, or has otherwise secured all necessary rights in the Customer Data, as may be necessary to permit the access, use and distribution thereof as contemplated by these Terms of Service; (iii) Customer shall only use the Services in accordance with all applicable laws, rules and regulations, these Terms of Service and any relevant documentation provided by CloudMiner and (iv) Customer will not, and will not permit any third party, to upload, download, post, submit, provide, transmit, distribute or otherwise make available to or through the Services any Customer Data that (A) is unlawful, infringing, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or that otherwise violates any other right of any third party, including any intellectual property, proprietary or privacy rights, or that is otherwise inappropriate, as determined by CloudMiner in its sole discretion; (B) contains any viruses, code, files or programs designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or that is or can be otherwise malicious or disruptive; (C) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”) or otherwise violates federal CAN-SPAM regulation; or (D) contains any personally identifying information subject to specialized security regimes.
Payments and Billing.
Payment. Customer shall be responsible for and shall pay to CloudMiner the annual subscription fees set forth in the applicable Order Form (“Fees”) in accordance with the terms and conditions contained therein. Customer shall pay all invoices within thirty (30) days of the date of invoice. If Customer’s actual usage exceeds the subscribed-for amount indicated in an Order Form, Customer shall be responsible for paying the applicable overage charges. All amounts are stated in, and shall be paid in, U.S. dollars.
Taxes. All Fees are exclusive of any taxes. Customer shall be responsible for all taxes, tariffs, levies and duties associated with the Services other than taxes based on CloudMiner’s net income.
Late Fees. Unpaid invoices or payment obligations are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Unpaid debts will be reported to all available credit reporting agencies.
No Refunds. Payment obligations are non-cancelable. Except as expressly set forth in these Terms of Service, CloudMiner will not, under any circumstances, issue refunds or pro-rate any Fees for early cancellation or termination of the Services, or for any other reason, including for any unused Services or if Customer’s actual usage of the Services falls below the purchased amount applicable to Customer’s subscription level for the Services. Subscription quantities cannot be decreased during the relevant subscription term.
Chargeback Policy; Disputes. Customer must promptly contact CloudMiner for any disputes related to Customer’s Account. CloudMiner has a zero tolerance policy for chargebacks. Any customer who disputes a Credit Card payment that is found to be valid will be permanently banned from use of any and all CloudMiner services.
Free Trials and Other Promotions. Any free trial or other promotion that provides access to the Enterprise Service must be used within the specified time of the trial or promotion in order for Customer to avoid being charged the Fees associated with the relevant service or feature offered in the promotion.
Term. Subject to earlier termination as provided below, these Terms of Service is for the Service Term as specified in the Order Form. Fees for a specific Service will not change during a current subscription term. Furthermore, Fees for a specific Service received by a Customer will not change for such Customer’s subsequent renewal unless CloudMiner gives Customer prior written notice thereof, with such change being effective as of the first day of the immediately following renewal term.
Termination. If either party materially breaches any of its duties or obligations under these Terms of Service or an Order Form, and such breach is not cured within thirty (30) calendar days of the non-breaching party providing the breaching party of written notice of the breach, the non-breaching party may terminate these Terms of Service or the applicable Order Form, as applicable.
Effect of Termination. Upon termination or expiration of these Terms of Service, all provisions of these Terms of Service which by their nature should survive termination or expiration shall survive such termination or expiration, including provisions regarding ownership, aggregate data use, payment (to the extent any payment obligations remain outstanding), warranty disclaimers, indemnity and limitations of liability.
Customer Data After Termination. Termination or cancellation of Customer’s Account by either party may result in the forfeiture and destruction of all information and data, including Customer Data, associated with Customer’s Account. CloudMiner may delete or destroy all copies of Customer Data in CloudMiner’s systems or otherwise in CloudMiner’s possession or control, unless legally prohibited. CloudMiner reserves the right, including after termination, to access, read, preserve, and disclose any information, including without limitation Customer Data, as CloudMiner reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of CloudMiner, CloudMiner’s users and the public.
Fees Due Upon Termination. In the event of termination, Customer shall pay CloudMiner all Fees due for the entire subscription period.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; CloudMiner’s Confidential Information includes the Services, and Confidential Information of each party includes the terms and conditions of these Terms of Service and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information of a Disclosing Party does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was rightfully known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is rightfully received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the Confidential Information of the Disclosing Party as it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party will (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms of Service, and (ii) except as otherwise authorized by the Disclosing Party in writing, only disclose Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who (A) need that access for purposes consistent with these Terms of Service and (B) have confidentiality obligations with respect to the Disclosing Party’s Confidential Information consistent with those contained herein. Neither party will disclose the terms of Order Form to any third party other than (1) its affiliates, legal counsel and accountants, or (2) in connection with a bona fide due diligence inquiry for a financing, acquisition or similar transaction, in each case subject to confidentiality obligations consistent with these Terms of Service, without the other party’s prior written consent. A Receiving Party shall be responsible for any breaches of confidentiality obligations hereunder by any third party to whom it discloses the Disclosing Party’s Confidential Information. Notwithstanding anything to the contrary set forth herein, CloudMiner is expressly authorized to use data regarding Customer’s use of the Service in anonymized and aggregated form, to analyze and improve the Service and for distribution in general benchmarking data and industry reports, provided that any reported user data is aggregated and anonymized such that no personally identifying information of Customer or its users is revealed.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
CLOUDMINER MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND CLOUDMINER WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COMPLETENESS, COPYRIGHT COMPLIANCE, ERROR-FREE, OR LEGALITY OF MATERIAL OR CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CLOUDMINER, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER’S USE OF THE SERVICES IS SOLELY AT CUSTOMER’S OWN RISK. CLOUDMINER FURTHER DISCLAIMS ANY LIABILITY WITH RESPECT TO ANY AND ALL ACTIONS TAKEN OR DECISIONS MADE BY CUSTOMER.
Indemnification. Customer is solely responsible for Customer’s conduct and Customer’s data related to the Service. Customer shall defend, indemnify, and hold harmless CloudMiner, its affiliates and each of CloudMiner and its affiliate’s respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to Customer’s use, misuse or provision of, or access to, the Services, Content, or otherwise from Customer Data, violation of these Terms of Service, or infringement by Customer, or any third party using Customer’s Account or identity in the Services, of any intellectual property or other right of any person or entity.
Limitation of Liability. EXCEPT FOR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, NOR SUCH PARTY’S DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE ENTERPRISE SERVICES (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); OR (C) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF the fees paid OR PAYABLE BY SUCH PARTY during the immediately previous three (3) month period.
Entire Agreement and Severability. These Terms of Service (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of these Terms of Service (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under these Terms of Service. No change, consent or waiver under these Terms of Service will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under these Terms of Service at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. No waiver by any party of any breach or default of any provision of these Terms of Service by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver. If any provision of these Terms of Service is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. These Terms of Service are in English only, which language shall be controlling in all respects. No version of these Terms of Service in another language shall be binding or of any effect.
Force Majeure. Neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
Assignment. These Terms of Service and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, either party may assign these Terms of Service to any successor to all or substantially all of its business or assets which concerns these Terms of Service (whether by sale of assets or equity, merger, consolidation or otherwise). These Terms of Service shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
Notices. Unless otherwise specified in these Terms of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to firstname.lastname@example.org. Customer acknowledges and agrees that CloudMiner may occasionally send Customer communications regarding Customer’s Account or the Service via email.
Headings; Interpretation. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Terms of Service shall be read as being followed by “without limitation” where appropriate.
Publicity. Customer hereby consents to inclusion of Customer’s name and logo in client lists that may be published as part of CloudMiner’s marketing and promotional efforts.
Governing Law and Arbitration. These Terms of Service and the transactions contemplated hereby shall be governed by and construed under the law of Hong Kong, without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods or any implementation of the Uniform Computer Information Transactions Act. Any dispute, controversy or claim arising in any way out of or in connection with these Terms of Service and the transactions contemplated hereby, including the existence, validity, interpretation, performance, breach or termination hereof ("Dispute") will be referred to and finally resolved by binding arbitration administered by the Hong Kong International Arbitration Centre ("HKIAC") under the HKIAC Administered Arbitration Rules ("Rules") in force when the Notice of Arbitration is submitted in accordance with those Rules. The seat of arbitration will be Hong Kong. The arbitration tribunal will consist of three arbitrators to be appointed in accordance with the Rules. Arbitration will be conducted in English. Judgment upon the award rendered by the arbitrators is final and binding upon parties, and may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator(s). In any action or proceeding to enforce rights under these Terms of Service, the prevailing party shall be entitled to recover costs and attorneys’ fees.
(Last Updated at: 13th October 2016)