Terms of Service
The Terms of Service (the “Terms”) are a legal agreement between App Ninjas CVBA, herein “Cloud Ninjas”, having an office and place of business at Veluwestraat 43, 2800 Mechelen, Belgium, and the person or entity agreeing to the terms herein (the “Client”, “You” or “you”). By using or accessing any part of Cloud Ninjas (the “Services”), You agree that You have read, understand, and agree to be bound by all of the terms and conditions contained herein. If You do not agree to the Terms, You must not use or access the Service. If You are entering into this Terms on behalf of a company, You represent that You have the authority to bind that company to the Terms. If Client has purchased a license to use Cloud Ninjas through an Cloud Ninjas reseller, Client also agrees to comply with the terms of any agreement (the “Agreement”) between Client and such reseller. In the event of an inconsistency between the Terms and any such reseller agreements, the Terms shall control.
You may not access the Services if You are a direct competitor of Cloud Ninjas, except with prior written consent of Cloud Ninjas. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
“Third Party Applications” means any on-line web application and any software provided for by third parties, that are connected to and work with the Services.
“Malware” means any virus, worms, logic bombs, Trojan horses and other harmful or malicious codes, files, scripts and programmes.
“Data” means all Client data or information exchanged for the purposes of the Services.
“Confidential Information” means all confidential information disclosed orally or in writing by one Party (hereafter, “the Disclosing Party”) to the other Party (hereafter, “the Receiving Party”) which is designated as such or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. The Data are Confidential Information. The Services provided by Cloud Ninjas also constitute Confidential Information. The Confidential Information of each Party includes the Terms of the Agreement, as well as the business and marketing plans, technical and technological information, product plans and designs, and business processes disclosed by that Party. However, Confidential Information 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 known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the latter, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party.
“Services” means the services referred to in Article 1 of the Special Terms and Conditions.
“Users” means natural persons authorised by the Client to use the Services to which a user name and password have been allocated. Users may include the Client’s staff, consultants, subcontractors and franchisees with which the Client has a business relationship, provided the latter undertake to comply with the terms and conditions of the Agreement.
Cloud Ninjas shall make the Services available to the Client in accordance with and for the term agreed.
USE OF THE SERVICES
Obligations of Cloud Ninjas
Cloud Ninjas undertakes, vis-à-vis the Client, to: (i) provide standard support for the Services, (ii) make every endeavour reasonable commercially to ensure that the Services are available around the clock (24/7), with the exception of: (a) scheduled downtimes (for which Cloud Ninjas shall provide at least eight (8) hours’ notice through the Services purchased), or (b) any downtime due to circumstances beyond the control of Cloud Ninjas, and in particular as a result of an unforeseen event, an act by a public authority, flooding, fire, an earthquake, civil unrest, terrorist attack, strike or other social conflicts, or faults or delays by Internet access providers, and (iii) take all commercially reasonable measures to prevent unauthorized access or use of the Data.
Obligations of the Client
The Client undertakes, vis-à-vis Cloud Ninjas, to: (i) ensure that the Users comply with the Terms, (ii) assume full liability for the accuracy, quality, integrity and legality of its Data and the means by which they are acquired, (iii) take all reasonable measure to prevent unauthorised access or use of the Services and inform Cloud Ninjas rapidly in the event of unauthorised access or use, (iv) use the Services in accordance with the applicable legislation and regulations, (v) limit access to the Services exclusively to Users, (vi) not sell, sell on or rent out the Services, (vii) not use the Services to store or transmit unlawful, libellous, or otherwise unlawful or tortuous material nor to store or transmit material in violation of third-party privacy rights, (viii) not use the Services to store or transmit Malware, (ix) not interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, and (x) not attempt to gain unauthorized access to the Services or their related systems or networks.
If the Client installs or activates Third-Party Applications to be used with the Services, the Client authorises the suppliers of those Third-Party Applications to access the Data insofar as this is necessary for these Third-Party Applications to work with the Services. Cloud Ninjas assumes no responsibility for the disclosure, alteration or deletion of the Client’s Data arising from such access by the suppliers of Third-Party Applications.
The functionalities of Services which operate and communicate with Google services depend on the continuous availability of the programming interface or the Google programme to be used with the Services. If Google Inc. ceases to make its programming interface or Google programme available for the Services under conditions which are reasonable, Cloud Ninjas reserves the right to cease to provide these functionalities without the Client being entitled to reimbursement, a credit note or any other consideration.
The Client agrees to pay the subscription fee applicable to Clients and its Users use of the Service. Such fees will be paid on a periodic basis as agreed to Cloud Ninjas or to your Cloud Ninjas reseller as agreed when you registered for the Services.
Cloud Ninjas or your Cloud Ninjas reseller may invoice the annual fee when the Agreement is signed based on a reasonable estimate of the Users which will be covered by Cloud Ninjas. If the number of Users increases by more than 10% during the year, a pro rata-adjusting invoice will be issued based on the number of months remaining before the next anniversary date of the Agreement. The invoices issued to Cloud Ninjas shall be payable thirty (30) days from the date on which the invoice is received. All taxes, duties and similar levies whatsoever shall be added to the fees payable by Cloud Ninjas, with the exception of taxes and levies payable on Cloud Ninjas’ profits, property and employees. The annual fee shall be the subject of annual indexation based on the fluctuation of the consumer prices index (the index for the month preceding the conclusion of the Agreement serving as the baseline).
INTELLECTUAL PROPERTY AND OTHER RIGHTS
Notwithstanding any provision to the contrary, Cloud Ninjas reserves all rights on its Services, including all intellectual property rights. The Client shall not (i) authorise any third party to access the Services, (ii) not create any works deriving from the Services, (iii) copy or reproduce in scoping notes or mirror sites any content of the Services or part thereof other than copies or scoping notes produced on the Client’s intranet or for the Client’s internal needs, (iv) undertake any reverse engineering of the Services, and (v) access the Services to (a) construct a competitive product or service, or (b) copy all the functionalities, functions or graphic attributes of the Services. The Client shall, however, hold exclusively all rights to all Data. The Client shall grant to Cloud Ninjas a free user’s licence (including incorporation into the Services) for all improvements or adaptations or feedback which it communicates to Cloud Ninjas on the functioning of the Services, including all those provided by the Users. This licence is worldwide and concluded for the entire duration of the Client’s rights to these improvements, suggestions or other information; it may also be assigned with a right to sub-licence.
Unless otherwise authorised in writing by the Disclosing Party, the Receiving Party shall (i) take precautions equivalent to those which it takes to preserve the confidentiality of its own Confidential Information of a similar nature (but in any event, reasonably adequate precautions) to ensure that the Disclosing Party’s Confidential Information is not disclosed or used for purposes other than those permitted under the Agreement, and (ii) limit access to the Disclosing Party’s Confidential Information, on a need to know basis for the purposes laid down in the Agreement, to those of its employees and contractors who have signed confidentiality agreements with the Receiving Party establishing protection measures that are as stringent as those laid down in the Agreement. Without prejudice to the above, Cloud Ninjas shall apply the appropriate administrative, physical and technical measures for ensuring the security, confidentiality and integrity of the Data. Cloud Ninjas shall not (a) amend these Data, and (b) disclose these Data unless it is legally obliged to do so or is expressly authorised to do so by the Client or for statistical purposes. Notwithstanding any provision to the contrary, each Party authorizes the other Party to announce, in its institutional, promotional and/or advertising communications to its business relationship with the Client and to use the Customer’s name to this end.
GUARANTEES AND EXCLUSIONS
- Guarantees by Cloud Ninjas Cloud Ninjas guarantees, subject to Article IV.B above, that the functionalities of the Services will not diminish materially during the term of the Agreement. In the event of a breach of this guarantee, the Client’s sole recourse shall be the right to terminate the Agreement in accordance with Article X.B below.
- Reciprocal guarantees Each Party declares and warrants (i) that it has the power to conclude the Agreement, and, (ii) that it will not transmit to the other Party any Malware (other than Malware transmitted to it by the other Party).
- Exclusion Unless otherwise specified, both Parties exclude all guarantees of any kind, express or implicit, laid down by law or otherwise, other than those laid down in the Agreement, and specifically waives all such guarantees, to the fullest extent permitted under the applicable law, subject to the same exception.
The total contractual, strict or other liability of any kind of either of the Parties arising from or relating to the Agreement may not, under any circumstances, exceed the fees paid under the Agreement in the 12 months preceding the incident concerned. Neither Party may invoke the liability of the other Party for any loss of earning or turnover or any consequential, special, collateral or subsequent damage or cost of a replacement service, irrespective of the ground – contractual, strict or other liability – and irrespective of whether or not the Party was or was not advised of the potential for damage of this kind.
The client agrees not to hire current or former employees or independent contractors of Cloud Ninjas, without Cloud Ninjas’ prior written consent, during the term of the Agreement and during the one (1) year period commencing upon the termination hereof. The Client agrees to obtain this restriction from any third-party to whom it introduces such employees or independent contractors. In case of breach by The Client of this Section 10, liquidated damages shall be due to Cloud Ninjas equal to 50 000 EUR, notwithstanding Cloud Ninjas’ right to be compensated for any actual damages which Cloud Ninjas may incur.
TERM, TERMINATION AND LAPSE OF THE AGREEMENT
The Terms commences on the date the Client accept it and continues until all Users subscriptions granted in accordance with the Terms have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, these Terms will terminate at the end of the free trial period.
Each Party may terminate the Terms immediately by registered letter if: (i) any material breach of the Terms constituting due cause is not remedied within thirty (30) days of receipt of a written notification thereof by the defaulting Party, or (ii) the other Party becomes the subject of a petition for bankruptcy or any other collective procedure relating to insolvency, temporary administration, liquidation, compulsory liquidation or assignment made for the benefit of creditors.
Continuing effect of certain provisions Articles V (Fees), VI (Intellectual Property and other rights), VII (Confidentiality), VIII.C (Exclusion), IX (Liability), X.B (Early termination), X.C (Return of Data), XI (Notifications) and XII (General Provisions) shall continue in effect after termination or expiry of these Terms.
Unless otherwise specified herein, all notifications, authorisations and approvals pursuant to the Agreement shall be made or granted in writing and be considered to have been made or granted: (i) when submitted in person, (ii) the second working day after dispatch by registered letter, (iii) the second working day after dispatch by fax with acknowledgement of receipt, or (iv) the first working day after an electronic mail is sent (on the clear understanding that an e-mail will not suffice for notifications of early termination). All notifications must be sent to the addresses given on the first page hereof.
Applicable law and choice of forum
The Agreement is subject to Belgian law and the courts for the district of Mechelen shall have sole jurisdiction therefor.
Relationships between the parties
The Parties are independent contracting parties. The Agreement does not create any franchise, joint venture, agency, employment or fiduciary relationship between the Parties.
No failure or delay by either Party in exercising any right under the Agreement shall constitute abandonment of that right.
If any provision of the Agreement is held by a competent court to be contrary to law, it shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement shall remain in effect.
Unless otherwise specified in the Agreement, neither Party may assign its rights or obligations under the Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party (which may not be unreasonably withheld). Notwithstanding the foregoing, either Party may assign the Agreement, in its entirety, without the consent of the other Party, to one of its associated companies or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets, provided this does not involve a direct competitor of the other Party.
The Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification or waiver of any provision of the Agreement shall be effective unless set down in writing and signed, or accepted electronically, by the Party against whom the modification, or waiver is to be asserted.