CloudPlugs Terms of Service
Last Updated: January 28, 2019
These terms of service (“Terms”) cover your non-exclusive access and use of: (i) the hosted Internet of Things solution provided by CloudPlugs for the development, connectivity, storage, processing of data and management of devices (collectively, “Content”); (ii) software provided or made available by CloudPlugs (the “Software”); (iii) the CloudPlugs websites or applications; and, (iv) any written or electronic guides or other documentation provided or made available by CloudPlugs (the “User Guides”) (collectively the “Service(s)”) provided by CloudPlugs Inc (“CloudPlugs”, “we”, “us”, or “our”). By using our Services, you’re agreeing to be bound by these Terms, and to review our Privacy and Acceptable Use Policies.
If you’re using our Services for an organization, you’re agreeing to these Terms on behalf of that organization, and you are representing to CloudPlugs that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Services.
2. CHANGES TO THESE TERMS
We reserve the right to modify these Terms from time to time. Any revisions will be dated and will be posted at http://cloudplugs.com (the “Site”). Please review the date of these Terms when you visit our website to see if there are changes. If we make material changes to these Terms, we will notify you via the Services and/or by email to the address associated with your account. If you do not accept the changes, you must stop using and cancel your account by using the Account Panel in your CloudPlugs account, or by emailing email@example.com.
Your continued use of our Services after we publish or send a notice about our changes to these Terms means that you are consenting to the updated terms.
3. YOUR ACCOUNT
To access the Services you must create an account with CloudPlugs (become a “Registered User”), by completing a registration form and designating a valid e-mail address and password. Until you apply for and are approved for a CloudPlugs Free or Business Account, your access to the Service will be limited to the areas of the Service, if any, that CloudPlugs makes available to the general public. When registering with CloudPlugs you must provide and maintain true, accurate and current information about yourself. CloudPlugs may withdraw your account approval at any time in its sole discretion, with or without cause.
Free Accounts are free of charge for a period of 12 months from the date the account is registered. You may sign up for a Business Account prior to the expiration of the free service period. Support for free accounts is provided solely through our user forum.
Only you may use your CloudPlugs account and you are responsible for all activities in your account (please also see our Acceptable Use Policy). You must keep your account and passwords confidential and not authorize any third party to access or use the Service on your behalf. If you suspect misuse of your account or any security breach in the Service, you must contact us immediately. CloudPlugs will not be liable for any loss or damage arising from any unauthorized use of your accounts.
4. EMAIL SELECTED FOR YOUR ACCOUNT
You get to choose what email address you register for an account. Please be aware, however, that if the domain of the email address associated with your account in owned or controlled by an organization, such as your work or school, and that organization establishes a direct relationship with us and wishes to add your account to such relationship, then you may be rolled into that organization’s account after notification. Following that notice, if you choose not to change the email address associated with your account by contacting us, your account will be controlled by the organization. Please note that the email address associated with a CloudPlugs account can only be modified by CloudPlugs after receiving a written, verifiable notification.
If an organization such as an employer, or school gave you your account, you understand that this organization has rights to your account and may: (a) manage your account, including suspending or canceling your account; (b) reset your password; (c) view your account’s usage and profile data, including how and when your account is used; and (d) manage the Content in your account.
5. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION.
By registering with CloudPlugs or signing up for Services, you understand that we may send you (including via email) information regarding the Services, such as: (a) notices about your use of the Services, including notices of violations of use; (b) updates to the Services and new features or products; and (c) promotional information and materials regarding CloudPlugs’ products and services. You may opt-out of receiving electronic mail with promotional information and materials from us by following the “unsubscribe” instructions provided in the message.
Notices emailed to you will be considered given and received when the email is sent. If you don’t consent to receive notices (other than promotional materials) electronically, you must stop using the Services.
We call all electronic data, documents, applications and source code that you upload or develop on your account “Content”. All Content uploaded or produced in your account is yours. We do not control, verify or endorse the Content that you or others put on the Services. You are solely responsible for: (a) any and all Content that you produce, transmit and/or store in the Service and (b) making sure that you have all rights you need to the Content.
You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to your Content; (b) you have all rights in your Content necessary to grant the rights contemplated by this Agreement; and (c) none of your Content or End Users’ use of Your Content, or the Services Offerings will violate the Acceptable Use Policy.
You hereby grant CloudPlugs and its contractors the right, to access, store, modify, adapt, reproduce, distribute, display and disclose Content posted on the Service solely to the extent necessary to provide the Service or as otherwise permitted by these Terms.
You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. CloudPlugs will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
You must immediately notify CloudPlugs in writing of any unauthorized use of any (a) Content (b) any Account or (c) the Service that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide CloudPlugs with such cooperation and assistance related to any such unauthorized use as CloudPlugs may reasonably request.
7. CONTENT STORAGE
The Service is provided from the United States. By using and accessing the Service, you understand and consent to the storage and processing of the Content and any other personal information in the United States. However, you understand that you (or other people that you collaborate with) can access the Services (including Content) from outside of the United States (subject to applicable law) and that CloudPlugs reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide you with at least 30 days notice of any such changes in the processing location.
8. SUSPENSION AND TERMINATION OF CUSTOMER’S USE OF THE SERVICE
We reserve the right, to temporarily suspend or terminate your access to the Service at any time in our sole discretion. You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the Content that is stored with the Service.
Upon termination you may request access to your Content, which we will make available provided your account is not delinquent and any required data traffic charges are paid in full, except in cases where we have terminated your account due to your violation of these Terms or the Acceptable Use Policy. You must make such request with thirty (30) days following termination. Otherwise, any Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain any data stored in your account.
In addition to other termination provisions, if your account it not currently subject to a paid subscription plan with us, we at our discretion may terminate your account if: (a) you do not engage in any activity in your account within thirty (30) days after becoming a Registered User, or (b) you do not engage in any activity in your account for any period of ninety (90) consecutive days. In the event of such termination, any Content you may have stored will be lost.
9. ACCEPTABLE USE
We trust that you will use the Service responsibly. Please read our Acceptable Use Policy.
10. UPDATES TO THE SERVICE
CloudPlugs reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features, and we may suspend or stop the Service altogether.
11. THIRD PARTY SERVICES
CloudPlugs may make available to you optional third-party applications, services or products for use in connection with the Service (“Third-party Products”), but we do not warrant or endorse and do not assume and will not have any liability or responsibility to any person for any Third-Party Products. All transactions using CloudPlugs’ services are between the transacting parties only. CloudPlugs makes no warranty or guarantee about the availability, accuracy, completeness, reliability, or timeliness of any such Third-Party Product. Use of such Third-Party Product may require a subscription with the applicable third-party and other requirements imposed by the applicable third party. You are solely responsible for your dealings with any third party related to the Service, including the delivery of and payment for goods and services, as well as for any losses as a result of problems with any of your other service providers or any Third-Party Products.
If you receive Software from us and you install it, its use is governed in one of two ways: If you are presented with a license agreement that you must accept in order to use the Software, those terms apply; if no license is presented to you, the End User License Agreement part of these Terms applies. We reserve all other rights to the Software.
We may automatically check your version of the Software. We may also automatically download to your computer or device new versions of the Software.
Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your Service ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.
The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software or Service without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department’s compliance list at http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). You represent and warrant that you’re not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
13. SUPPORT AND SERVICE LEVEL COMMITMENTS
13.1. Technical Support Services. Subject to payment of the corresponding Fees, CloudPlugs will provide the support services (“Support Services“) specified in the applicable Order and as further described in the CloudPlugs Technical Support Policy. Upon CloudPlugs’ request, Customer will provide CloudPlugs with remote access to Customer’s computer systems as reasonably required for CloudPlugs solely to perform any Support Services and other obligations provided for under this Agreement, such as by VPN connection or other means.
13.2 Service Level Commitments. CloudPlugs will use commercially reasonable efforts to meet the Service Level Commitments for the CloudPlugs Service as specified under Service Level Commitments for Business Accounts subscribed to and paid for by the Customer under the applicable Order. The sole and exclusive remedy for any breach of any Service Level Commitment is set forth in Service Level Commitments, provided however that if CloudPlugs does not meet the Service Level Commitments for a period of thirty (30) days, Customer may terminate the Service in which case Customer will be entitled to a pro-rated refund of the any Platinum Technical Support Fees paid to CloudPlugs for the remainder of the corresponding Subscription Period.
14. CLOUDPLUGS PROPRIETARY RIGHTS
Except as expressly set forth herein, CloudPlugs or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by CloudPlugs. In the event that you provide comments, suggestions and recommendations to CloudPlugs with respect to the Service (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, “Feedback”), we will own all right, title, and interest in and to the Feedback, even if you have designated the Feedback as confidential. You hereby irrevocably assign to us all right, title, and interest in and to the Feedback.
15. NO WARRANTY
THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CLOUDPLUGS NOR ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, AND ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. IN THE EVENT THAT A FOREGOING EXCLUSION IS NOT ALLOWED BY A PARTICULAR JURISDICTION, SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
To the extent permitted by law, you will defend CloudPlugs against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, or your use of the Service, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of CloudPlugs’s actions); or, (b) violates applicable law or these Terms. CloudPlugs will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.
17. LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CLOUDPLUGS, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF CLOUDPLUGS HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF CLOUDPLUGS AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) ONE (1.0) TIME THE MOST RECENTLY MONTHLY OR YEARLY FEE THAT YOU PAID FOR THAT SERVICE; OR (B) ONE HUNDRED DOLLARS ($100 U.S.D.). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.
18. DISPUTE RESOLUTION AND GOVERNING LAW
You agree that all matters relating to your access to, or use of the CloudPlugs Service(s) shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the United States without regard to the conflict of laws or provisions therein that would require application of the laws of another jurisdiction. We both agree that United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act does not apply to these Terms. In the event of any dispute, controversy or claim between the parties hereto arising out of or relating to this Agreement, the parties shall first seek to resolve the dispute in good faith through informal discussions. In the event any dispute, controversy or claim cannot be resolved informally, the parties agree that any dispute shall be settled by binding arbitration to be held before a single arbitrator in Fairfax, Virginia under the rules in effect of the American Arbitration Association, and judgment upon the award may be entered in any court with competent jurisdiction.
We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Service or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Service. You may provide legal noticed to us via email to legal@CloudPlugs.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: CloudPlugs Inc., Attn: Legal Department, 1818 Library Street, Suite 500, Reston, VA 20190. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
CloudPlugs offers both free and paid Services and Software. If you choose to subscribe to a paid Business Account, you agree to pay the fees (“Fees) as quoted to you when you purchase that Service and Software. We may calculate taxes payable by you based on the billing information you provide to us at the time of purchase. You are responsible for all charges related to using the purchased Service and Software (for example, data charges and currency exchange settlements). You will pay the Fees in the currency CloudPlugs quoted for your account. CloudPlugs reserves the right to change the quoted currency at any time.
CloudPlugs reserves the right to change its prices at any time, however, if we have offered a specific duration and Fee for your use of the Service, we agree that the Fee will remain in force for that duration. After the offer period ends, your use of the Service will be charged at the then-current Fee(s). If you don’t agree to these changes, you must stop using the Service and cancel via email to firstname.lastname@example.org (with cancellation confirmation from a CloudPlugs representative). If you cancel, your Service ends at the end of your current Service period or payment period, and no refunds for previously paid services will be issued.
If you do not cancel in accordance with these Terms, the subscription for the Service will automatically renew at the then-current price and for the same subscription period. We will charge your credit card on file with us on the first day of the renewal of the subscription period.
If you elect to use a paid Service and Software, you must provide us with current, complete, accurate and authorized payment method information (e.g. credit card information). You authorize us to charge your provided payment method for the Services you have selected and for any paid feature(s) that you choose. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) if you have elected a subscription service, on a recurring basis. To the extent CloudPlugs has not received your payment, in order to bring your account up to date, we may bill you simultaneously for both past due and current amounts. If you do not cancel your account, we may automatically renew your Service(s) and charge you for any renewal term. You understand that failure to pay any charges or fees may result in the suspension or cancellation of your Services.
Except as specifically set forth in this section, all Services you are billed for are non-refundable. This means that if you are a Business Account user you will not be issued a refund for your most recent (or any previous) billing.
Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1 percent of the unpaid amount each month or the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.
22. SUBSCRIPTION PERIOD
Unless otherwise specified in a CloudPlugs Services and Software quote, all Services and Software are offered on an annual subscription plan. The subscription period will be for one year and will automatically renew each year on the anniversary unless you cancel at least fifteen (15) business days prior to your renewal date. You will be billed annually on or about the same day each year until such time that you cancel. Note that you will not be permitted to cancel, reduce the number of devices, or downgrade the CloudPlugs Service you have selected until the anniversary date.
23.1. Severability; Entire Agreement
These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Terms will remain in effect. This is the entire contract between you and us regarding the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service.
23.2. Assignment and transfer
We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service.
23.3. Independent Contractors; No third-party beneficiaries
CloudPlugs and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.
The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
23.5. Government Terms
If you are a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), you acknowledge that any Software and User Guides that are provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
24. COPYRIGHT COMPLAINTS AND REMOVAL POLICY
CloudPlugs respects the intellectual property rights of others and expects its users to do the same. We will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. For details on how to send us such notices, visit our DMCA Policy page at https://cloudplugs.com/terms-of-service. We reserve the right to delete or disable Content alleged to violate these Terms and to terminate repeat infringers.
25. INTELLECTUAL PROPERTY NOTICES
All contents of the Site and Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © 2018 CloudPlugs, and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.
CloudPlugs and the CloudPlugs logo are including without limitation, either trademarks, service marks or registered trademarks of CloudPlugs, Inc., and may not be copied, imitated, or used, in whole or in part, without CloudPlugs’s prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners.
CloudPlugs may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Service. Unless we have granted you licenses to our intellectual property in these Terms, our providing you with the Service does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.