EnterCloud Terms of Service Agreement
Effective December, 2019
THIS AGREEMENT CONTAINS PROVISIONS REQUIRING THAT YOU AGREE TO THE USE OF ARBITRATION TO RESOLVE ANY DISPUTES ARISING UNDER THIS AGREEMENT RATHER THAN A JURY TRIAL OR ANY OTHER COURT PROCEEDINGS AND TO WAIVE YOUR PARTICIPATION IN CLASS ACTION OF ANY KIND AGAINST ENTERCLOUD.
Agreeing to use the Services by clicking “Create Account” or any similar button constitutes your acceptance and agreement to be bound by this Agreement, and all other rules, policies, and procedures that may be published from time to time by us on https://EnterCloud.io (the “Website”) and may be modified from time to time without notice to you.
This Agreement applies to all users of the Service. If you are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to EnterCloud that you have the authority to bind such Entity to this Agreement, in which case the terms “you” or “your” herein will refer to such Entity.
EnterCloud may modify this Agreement from time to time without prior notice to you, provided that if any such alterations constitute a material change to this Agreement, EnterCloud will provide notice of such changes. Modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such modifications, you agree to be bound by the modified Agreement. If you do not agree to any change to this Agreement, then you must immediately stop using the Services.
You must be at least 13 years of age to use the Service. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time.
1. Access to Services
Subject to your compliance with this Agreement, EnterCloud hereby grants to you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable right to access and use the Services. If you are agreeing to this Agreement on behalf of an Entity, such Entity’s Affiliates may also access and use the Services provided that such Affiliates agree to be bound by the terms of this Agreement, and the Entity remain fully liable for such Affiliates’ actions and omissions in connection with this Agreement as if the Entity had performed such acts and omissions itself. For purposes of this Agreement, Affiliate means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a party.
Unless otherwise expressly permitted in writing by EnterCloud, you will not and you have no right to:
(a) interfere with, disrupt, alter, or modify the Services or any part thereof, or create an undue burden on the Services or the networks or services connected to the Services;
(b) utilize any framing techniques to enclose any EnterCloud trademark, logo, service mark, or other trade dress (“EnterCloud Marks”) or Materials (defined below) or use any meta tags or other “hidden text” utilizing the EnterCloud Marks or Materials without EnterCloud’s written consent;
(c) use software or automated agents or scripts so as to create multiple accounts or to automate interaction with the Services other than through EnterCloud’s publicly documented API;
(d) cover or obscure any page or part of the Services via HTML/CSS, scripting, or any other means;
3. Free and Trial Services
We may offer free or trial versions of the Services (“Free Services”) from time to time. With respect to each such Free Service, we will make each such Free Service available to you free of charge until the earlier of (a) the end of the free trial period (if applicable) for which you registered to use the Free Service; (b) the date of Paid Services initiated by you; or (c) termination of the Free Service by EnterCloud at our sole discretion. We will have no liability for any harm or damage arising out of or in connection with any Free Services.
4. Acceptable Use
Subscribers may not falsely imply any sponsorship or association with EnterCloud.
Subscribers may not engage in any activities or post, transmit, store or link to any files, materials, data, text, audio, video, images or other content that infringe on any person’s or entity’s intellectual property rights, impersonate any person or entity, or that are otherwise malicious, injurious, deceptive, or unlawful.
Subscribers may not use the Services in a manner that would violate the lawful privacy rights of any person, or to publish or republish defamatory or libelous statements, or to harass or embarrass, which shall be determined in EnterCloud’s sole and absolute discretion.
Subscriber may not use the Services to obtain information about or make decisions about anyone but themselves.
EnterCloud reserves the sole right to determine whether content or usage meets the requirements for acceptable use.
EnterCloud makes available software in connection with the Services. Subject to the terms and conditions of this Agreement, EnterCloud grants you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable (except to Affiliates) license to install and use the Software during your use of the applicable Services in accordance with this Agreement and any EnterCloud documentation (“License”). Your License will end upon the earlier of the termination of your use of the Services requiring such Software or the termination of this Agreement. Some Software may contain open source or third party software which may have additional terms and restrictions regarding such software’s use.
You will not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the compressed code or binary code portions of the Software (collectively, “Reverse Engineering”) or permit or induce the foregoing. If, however, directly applicable law prohibits enforcement of the foregoing, you may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of your own or third party software with the Software, and to the limited extent permitted by directly applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information; and (b) you have first requested such information from us and we fail to make such information available (for a fee or otherwise) under reasonable terms and conditions.
6. Trade Sanctions and Export Control
You may not use the Service for any reason if you or any party that owns or controls you are subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the U.S. Government and the European Union or its Member States. You may not use the Service to export or re-export any information or technology to any country, individual, or entity to which such export or re-export is restricted or prohibited.
You are responsible for maintaining the confidentiality of all usernames, passwords, API keys, and other access codes created by or assigned to you (“Credentials”) and are solely responsible for all activities that occur under such Credentials. You agree to notify EnterCloud promptly of any actual or suspected unauthorized use of any Credentials. EnterCloud reserves the right to terminate any Credentials that EnterCloud reasonably determines may have been accessed or used by an unauthorized third party.
Subscribers are responsible for the acts of others utilizing their access to the Services and will be held responsible for violations of the Services by their sub-users or persons who gain access to the Services using the Subscriber’s Credentials. Any activity that a Subscriber is prohibited from performing by this Agreement is equally prohibited to anyone using the Subscriber’s access to the Services.
Subscribers shall notify all persons who receive access to the Services of the provisions of this Agreement and shall inform them that the terms of this Agreement are binding upon them.
Subscribers shall notify EnterCloud if and when they learn of any security breaches regarding the Services and shall aid in any investigation or legal action that is taken by authorities and/or EnterCloud to remedy the security breach.
8.1 Recurring Billing
By choosing to use paid Services, you agree to pay us for all charges at the prices then in effect for any use of such paid Services in accordance with the applicable payment terms. By providing a credit card or other means of payment (“Payment Method”), you are authorizing us to charge your Payment Method on a monthly or annual basis, as otherwise applicable for the subscription fees associated with the Paid Services that you sign up for, or at any time up to the Subscriber’s current balance. The term of this Agreement shall commence on the date that the Subscriber signs up for Paid Services. All invoices and payments are in U.S. Dollars.
8.2 Payment Processors
We use third-party payment processors (the “Payment Processors”). The processing of payments may be subject to the terms, conditions, and privacy policies of the Payment Processors in addition to this Agreement. We are not responsible for errors by the Payment Processors.
8.3 Price Changes
We reserve the right to change the subscription fees that we charge for the Service, at any time in our sole discretion, provided that we give you at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the billing period immediately following our notice to you.
8.4 Promotional Credit
Only one promotional code is permitted per customer and may be redeemed only within 30 days of creating your account. Promotional credit will expire after 12 consecutive months without a billable invoice. Credit earned on sign-up via a referral link or code is considered promotional credit.
8.5 Earned Credit
Earned credit from making a referral will expire after 12 consecutive months without a billable invoice.
9. Beta Services
From time to time, we may make early stage or non-production Services (“Beta Services”) available to you at no charge. Beta Services are intended for evaluation purposes only, and may be subject to additional terms that will be presented to you at the time of sign-up. EnterCloud may, but is not obligated to, provide you with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Beta Services’ trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with any Beta Services.
For purposes of these Terms of Service, the term “Content” includes, without limitation, information, data, text, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content (as defined below).
All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules, and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
The Services may contain Content specifically provided by us, our partners, or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets. or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, revocable, non-sublicensable, and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution, or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
By submitting any User Content to the Website, excluding privately transmitted User Content, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit such User Content in connection with the Website, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Website or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each user of the Website and/or the Services a non-exclusive, perpetual license to access any of your User Content that is available to such user on the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. By submitting any User Content to the Services other than on the Website, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, and perform such User Content solely for the purpose of providing the Services. For clarity, the foregoing licenses granted to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Some Content will be marked on the Service as “Creative Commons Content”. Creative Commons Content will be identified with a Creative Commons icon. We hereby grant each user of the Services a license to Creative Commons Content under the Creative Commons CC BY-NC-SA 4.0 US license, available at the Creative Commons License. You agree to abide by the terms of the Creative Commons License when using Creative Commons Content.
We implement security procedures to help protect your servers and data from security threats. However, you understand that your use of the Service necessarily involves providing EnterCloud access to and the ability to modify the contents and operation of your servers and that we cannot guarantee that our security procedures will be error-free, that your data will always be secure, or that unauthorized third parties will never be able to defeat our security measures.
12. Termination, Modification and Discontinuation
You will lose your license to use the Service if you violate any provision of this Agreement. Additionally, we may at our sole discretion terminate your account or suspend or terminate your access to the Service at any time, with or without notice for any reason or no reason at all. All fees owed to EnterCloud and charges accrued before such termination shall be immediately due and payable. We reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time through the Service’s Website or by requesting account termination by sending an email.
13. Proprietary Rights and Ownership
The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by EnterCloud are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of EnterCloud or our third-party licensors. Except as expressly authorized by EnterCloud you may not make use of the Materials. EnterCloud reserves all rights to the Materials not granted expressly in this Agreement.
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless EnterCloud and its officers, directors, employees, consultants, contractors, Affiliates, subsidiaries and agents (collectively, the “EnterCloud Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
15. Warranty Disclaimer
THE SERVICES ARE MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE ENTERCLOUD ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, ITS SAFETY OR SECURITY, OR THE SERVICES CONTENT. ACCORDINGLY, THE ENTERCLOUD ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE’S INOPERABILITY, UNAVAILABILITY, OR SECURITY VULNERABILITIES.
THE ENTERCLOUD ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
16. Limitation of Liability
IN NO EVENT WILL THE ENTERCLOUD ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE ENTERCLOUD ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Subscriber shall keep confidential any confidential information to which it is given access and shall cooperate with EnterCloud’s efforts to maintain the confidentiality thereof.
Subscriber is solely responsible for the preservation of Subscriber’s data which Subscriber saves on their servers (the “Data”). EVEN WITH RESPECT TO DATA AS TO WHICH SUBSCRIBER CONTRACTS FOR BACKUP SERVICES PROVIDED BY ENTERCLOUD, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ENTERCLOUD SHALL HAVE NO RESPONSIBILITY TO PRESERVE DATA. ENTERCLOUD SHALL HAVE NO LIABILITY FOR ANY DATA THAT MAY BE LOST, OR UNRECOVERABLE, BY REASON OF SUBSCRIBER’S FAILURE TO BACKUP ITS DATA OR FOR ANY OTHER REASON.
20. Governing Law
This Agreement will be governed by the laws of the State of Delaware without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and EnterCloud agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Delaware for the purpose of litigating all such disputes.
This Agreement constitutes the entire and exclusive understanding and agreement between you and EnterCloud regarding your use of and access to the Service. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of this Subscription Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration.
22. Dispute Resolution and Arbitration
22.1 Use of Arbitration
In the interest of resolving disputes between you and EnterCloud in the most expedient and cost effective manner, you and EnterCloud agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ENTERCLOUD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding the foregoing, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and EnterCloud will be governed by the Commercial Arbitration Rules and Mediation Procedures (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
22.3 Notice and Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other by certified mail or, in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). EnterCloud’s address for Notice is: EnterCloud, P.O. Box 66, Bellingham, WA 98227-0066. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or EnterCloud may commence an arbitration proceeding.
Any arbitration hearings will take place at a location to be agreed upon in the State of Washington provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse EnterCloud for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
22.5 No Class Actions
YOU AND ENTERCLOUD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EnterCloud agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In the event that EnterCloud makes any future change to this arbitration provision (other than a change to EnterCloud’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to EnterCloud’s address for Notice, in which case your account with EnterCloud will be immediately terminated and this arbitration provision as in effect immediately prior to the amendments you reject will survive.
If Subsection 22.1 is found to be unenforceable or if the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to this Agreement.
23. Consent to Electronic Communications
You may contact us or send notices.