CLOUDVELOX, INC. Terms of Service

Transcription

1 CLOUDVELOX, INC. Terms of Service BY INSTALLING OR USING THE SOFTWARE (THE SOFTWARE ) THAT ACCOMPANIES THESE TERMS OF SERVICE ( TERMS ) OR BY ACCESSING OR USING ANY OF THE FEATURES OR FUNCTIONALITY OF THE SERVICE (THE SERVICE ) PROVIDED BY CLOUDVELOX, INC. ( CLOUDVELOX ) AND MADE AVAILABLE SOLELY FOR USE IN CONJUNCTION WITH THE SOFTWARE, YOU ( YOU OR YOUR ) AGREE TO THESE TERMS. YOU MAY NOT USE THE SOFTWARE OR THE SERVICE, OR ACCEPT THESE TERMS, IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH CLOUDVELOX. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THESE TERMS, IN WHICH CASE YOU OR YOUR SHALL REFER TO SUCH ENTITY. 1. DEFINITIONS. Capitalized terms shall have the meanings set forth in this Section or in the Section where they are first used. 1.1 Affiliate means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where control means ownership of fifty percent (50%) or more of the outstanding voting securities. 1.2 Amazon Parties means, collectively, Amazon Web Services LLC and its Affiliates. 1.3 Amazon Services means any and all web, online, cloud, and other services provided by any of the Amazon Parties. 1.4 Content means any and all information, data, results, ideas, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, or other materials. 1.5 Customer Content means any and all Content, and software, provided, imported or uploaded to the Service by you or on your behalf. 1.6 Documentation means all specifications, user manuals, and other technical materials relating to the Service. 1.7 Intellectual Property Rights means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. 1.8 Third Party Service Provider means any third party, such as, but not limited to, an Amazon Party or Rackspace, that provides any web, online, cloud, or other service used by CloudVelox to host and/or provide the Service. 1.9 Users means you and your employees, contractors, or third parties (if any) whom you authorize to use the Service in accordance with these Terms. 2. LICENSE GRANT AND RESTRICTIONS 2.1 License Grant. Subject to these Terms, CloudVelox grants you a non-exclusive, nontransferable (except as permitted in Section 13.7) license during the Term to: (a) reproduce, display, and perform the Software solely for use in conjunction with the Service and solely for your internal business 1

2 purposes in accordance with any site and other license restrictions specified on the Site; and (b) access and use the Service solely for your internal business purposes. 2.2 Limitations. You agree that you will not: (a) permit any party to access and/or use the Service, other than the Users authorized under these Terms; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service; (d) reverse engineer or access the Software or Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Software or Service, or (iii) copy any ideas, features, functions or graphics of the Software or Service; (e) without CloudVelox s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service; (f) publish any performance or benchmark tests or analyses relating to the Software or Service or the use thereof; (g) modify, adapt, alter, translate, or create derivative works from the Software; (h) merge the Software with other software; (i) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any third party; or (j) use or reproduce the Software except as expressly permitted in Section IP Ownership. The Software, the Service (including any Content incorporated therein but excluding your Customer Content), and any and all of CloudVelox s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to you by CloudVelox in providing the Service, (collectively, the CloudVelox Technology ), and all Intellectual Property Rights in the foregoing, is the exclusive property of CloudVelox or its suppliers. You acknowledge and agree that any comments, ideas and/or reports you provide to CloudVelox ( Feedback ) shall be the property of CloudVelox and you hereby irrevocably transfer and assign to CloudVelox all Intellectual Property Rights embodied in or arising in connection with such Feedback. You agree to provide CloudVelox any assistance it may require to document, perfect, and maintain its rights in the Feedback. Feedback will not include any confidential Customer Content. Except as expressly set forth in this Section 2, no express or implied license or right of any kind is granted to you regarding the CloudVelox Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the CloudVelox Technology. All rights not expressly granted to you are reserved to CloudVelox. 2.4 Open Source Software. Certain items of software included with the Software are subject to open source or free software licenses ( Open Source Software ). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to these Terms, except Sections 9.2 and 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, CloudVelox makes such Open Source Software, and CloudVelox s modifications to that Open Source Software, available by written request at the notice address specified below in Section ACCOUNTS. CloudVelox makes certain features of the Service available only if you have paid a fee and/or registered to create a CloudVelox master account ( Master Account ). The holder of the Master Account will have the ability to create user accounts ( User Accounts ) with varying levels of privileges and associated usernames and passwords. CloudVelox reserves the right to change or update these usernames and passwords in CloudVelox s sole discretion from time to time. You are responsible for maintaining the confidentiality of all usernames and passwords, and are solely responsible for all activities that occur under these usernames. You agree (a) not to allow any third party other than an authorized User to use the Master Account or any User Account or any related usernames or passwords at any time; and (b) to notify CloudVelox promptly of any actual or suspected unauthorized use of the Master Account or any User Account or any related usernames or passwords, or any other breach or suspected breach of these Terms. CloudVelox reserves the right to terminate any Master Account or 2

3 User Account, which CloudVelox reasonably determines may have been used by an unauthorized third party. 4. PAYMENT 4.1 Orders and Prices. You may order paid features of the Service by following the directions on the Site. CloudVelox offers paid access to the Service on a subscription basis. You shall pay all fees for such features in accordance with the pricing specified on the Site. CloudVelox reserves the right to modify its fees and to introduce new fees at any time, upon at least sixty (60) days prior notice to you, which notice may be provided by , provided that you may terminate these Terms prior to the effective date of the fee change and receive a prorated refund of prepaid fees for the then-current subscription period. 4.2 Billing and Renewal. CloudVelox charges and collects fees in advance of the applicable subscription period. All payment obligations are non-cancelable and all amounts paid are nonrefundable, except as provided otherwise in these Terms. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. You agree to provide CloudVelox with complete and accurate billing and contact information. This information will include your legal company name, street address, address and name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. 5. CUSTOMER CONTENT 5.1 Customer Content License. You grant CloudVelox a non-exclusive, worldwide, transferable and sublicenseable (each as permitted in Section 13.7), royalty-free and fully paid license during the Term: (a) to use the Customer Content, as necessary, for purposes of providing the Service to you; and (b) to use your trademarks, service marks, and logos (collectively, the Customer Marks ) as required to provide the Service to you. As between you and CloudVelox, all rights in and to the Customer Content and Customer Marks not expressly granted to CloudVelox in these Terms are reserved by you. 5.2 Representations. You represent and warrant that: (a) you have full right and authority to grant the licenses granted in these Terms, including the right for CloudVelox to use any third party software applications that may be replicated and hosted through the Service; (b) no portion of the Customer Content shall (i) infringe any copyright, trademark, or patent, (ii) misappropriate any trade secret, (iii) contain any viruses, worms or other malicious computer programming code able to damage the Service or Content contained therein, (iv) otherwise violate the rights of a third party, or (v) violate any applicable law, rule, or regulation; and (c) you will comply with the terms and conditions of the Acceptable Use Policy available at You acknowledge and agree that CloudVelox may suspend your access to the Service for any violation or suspected violation of this Section. 5.3 Security and Backups. The maximum storage space provided to you at no additional charge is as specified on the Site. If the amount of storage required exceeds these limits, you will be charged the then-current storage fees. CloudVelox reserves the right to establish or modify its general practices and limits relating to the storage of Customer Content. CloudVelox will have no obligation or liability for backing up Customer Content. You are solely responsible for backing up your Customer Content. 5.4 Access to Customer Content upon Termination. You agree and acknowledge that Company has no obligation to retain the Customer Content in the event these Terms terminate and may delete such Customer Content, at any time on or after termination. 6. CLOUDVELOX USE OF INFORMATION. CloudVelox collects information and data on how the Software and Service is used by customers ( Use Data ). CloudVelox reserves the right to use the Use 3

4 Data for its internal business purposes and disclose to and share with third parties the Use Data in an anonymous and aggregated form, at its discretion. 7. COPYRIGHT POLICY. CloudVelox reserves the right to bar any customer who repeatedly infringes third party copyright rights from accessing CloudVelox s services. If you believe that your copyrighted work has been copied and posted to the Service by another user in a way that constitutes copyright infringement and wish to have the allegedly infringing material removed, you must provide CloudVelox with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work that you claim has been infringed; (c) an identification of, and information sufficient for CloudVelox to locate, the material you believe to be infringing; (d) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (e) your name and contact information, such as telephone number or address; and (f) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner s behalf. Contact information for CloudVelox s Copyright Agent for notice of claims of copyright infringement is as follows: 8. CONFIDENTIALITY CloudVelox, Inc. Attn: Copyright Agent 2350 Mission College Blvd. Suite 1250 Santa Clara, CA copyright_agent@cloudvelox.com 8.1 Confidential Information. Each party (the Disclosing Party ) may from time to time during the Term disclose to the other party (the Receiving Party ) certain information regarding the Disclosing Party s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information that is marked at the time of disclosure as confidential ( Confidential Information ). Notwithstanding the foregoing, the CloudVelox Technology will be deemed the Confidential Information of CloudVelox. 8.2 Restrictions. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms, and will disclose the Confidential Information of the Disclosing Party only to the employees, contractors, or service providers of the Receiving Party who have a need to know such Confidential Information for purposes of these Terms and who are bound by written confidentiality obligations. The Receiving Party will protect the Disclosing Party s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. 8.3 Exceptions. The Receiving Party s obligations under Section 8.2 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without use of the Disclosing Party s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under these Terms in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. 4

5 8.4 Return of Confidential Information. The Receiving Party will either, at its option, return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the termination of these Terms, whichever comes first. 9. LIMITED WARRANTY AND DISCLAIMER 9.1 Limited Warranty. CloudVelox warrants that the Software and Service will materially conform during the Term to CloudVelox s then current Documentation for the Software or Service, as applicable, under normal use and circumstances. If you notify CloudVelox of a breach of this warranty within ten (10) days after the breach first arose, CloudVelox will, at its option, use commercially reasonable efforts to correct the nonconformance, or, if CloudVelox determines that it is not feasible to make such correction even after using such efforts, terminate these Terms and refund the unused portion of any prepaid fees for the applicable subscription period. The foregoing constitutes your sole and exclusive remedy for any breach of the foregoing warranty. CloudVelox will have no warranty obligations under this Section 9.1 to the extent any warranty claim results from or relates to: (a) use of the Software or Service that is not in accordance with these Terms or the Documentation; (b) use of a version of the Software other than the most current version; (c) any issues arising from the failure of the Software or Service to interoperate with any other software or services, except to the extent that such interoperability is mandated in the applicable Documentation; (d) any use of the Software or Service in a computing environment not meeting the system requirements set forth in the Documentation, including hardware and operating system requirements; (e) any issues arising from the acts or omissions of any Third Party Service Provider; or (f) any nonconformance that is not reproducible by CloudVelox. 9.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICE ARE PROVIDED AS IS, AND CLOUDVELOX (AND ITS SUPPLIERS) MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE OR SERVICE (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY CLOUDVELOX. CLOUDVELOX (AND ITS SUPPLIERS) DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, THAT OPERATION OF THE SOFTWARE OR SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT YOUR CUSTOMER CONTENT WILL BE SECURE OR NOT LOST OR DAMAGED. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CLOUDVELOX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. 10. LIMITATION OF LIABILITY 10.1 Types and Amounts of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CLOUDVELOX BE LIABLE TO YOU FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL, ARISING OUT OF OR RELATING TO THE SOFTWARE, SERVICE, ANY OTHER PRODUCTS OR SERVICES PROVIDED BY CLOUDVELOX, OR THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF CLOUDVELOX HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL CLOUDVELOX BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF CLOUDVELOX ARISING OUT OF OR RELATING TO THE SOFTWARE, SERVICE, ANY OTHER PRODUCTS OR SERVICES PROVIDED BY CLOUDVELOX, AND THESE TERMS SHALL NOT EXCEED THE FEES PAID BY YOU TO CLOUDVELOX DURING THE TWELVE (12) MONTHS 5

6 IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS WILL NOT INCREASE CLOUDVELOX S LIABILITY. IN NO EVENT SHALL CLOUDVELOX S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CLOUDVELOX WILL NOT BE LIABLE TO YOU IN CONNECTION WITH ANY ACTS OR OMISSIONS OF ANY THIRD PARTY SERVICE PROVIDER Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and these Terms entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you. 11. INDEMNIFICATION 11.1 By CloudVelox. CloudVelox will defend at its expense any suit brought against you, and will pay any settlement CloudVelox makes or approves or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Software or Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any United States copyright. If any portion of the Software or Service becomes, or in CloudVelox s opinion is likely to become, the subject of a claim of infringement or misappropriation, CloudVelox may, at CloudVelox s option: (a) procure for you the right to continue using the Software or Service, as applicable; (b) replace the Software or Service, as applicable, with non-infringing software or services which do not materially impair the functionality of the Software or Service; (c) modify the Software or Service, as applicable, so that it becomes non-infringing; or (d) terminate these Terms and refund the unused portion of any prepaid fees for the applicable subscription period, and upon such termination, you will immediately cease all use of the Software and Service. Notwithstanding the foregoing, CloudVelox shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Software or Service not in accordance with these Terms or the Documentation; (x) CloudVelox s conformance to your specifications; (y) any use of the Software or Service in combination with other products, services, equipment, software or Content not supplied by CloudVelox; or (z) any modification of the Software or Service by any person other than CloudVelox or its authorized agents. This Section 11.1 states your sole and exclusive remedy for claims of intellectual property infringement or misappropriation Intentionally Omitted 11.3 Procedure. CloudVelox s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) CoudVelox shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with CloudVelox to facilitate the settlement or defense of any claim or suit. 12. TERMINATION 12.1 Term. These Terms will continue to apply for an indefinite period until terminated by you as set forth in the Terms (such period, the Term ) Termination by You. If you wish to terminate these Terms, you may do so by (a) notifying CloudVelox at any time; and (b) closing your Master Account for the Service, where CloudVelox has made this option available to you. Your notice should be sent, in writing, to CloudVelox s address set forth below in Section

7 12.3 Effect of Termination. Termination of your Master Account includes: (a) removal of access to all offerings within the Service; (b) deletion of your password and all related information; and (c) barring of further use of the Service. Upon termination of these Terms, you shall promptly discontinue use of the Software and Service and permanently erase all copies of the Software. Sections 1, 2.2, 2.3, 4.2, 5.2, 6, 8, 9.2, 10, 11, 12.3, and 13 will survive the termination of these Terms for any reason. 13. MISCELLANEOUS 13.1 No Support; Modifications of Service; Software Updates. You acknowledge and agree that CloudVelox has no obligation to provide you with any support or maintenance in connection with the Software or Service Governing Law and Venue. These Terms and any action related thereto will be governed and interpreted by and under the federal laws of the United States, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any action or proceeding arising from or relating to these Terms must be brought in a federal court, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, except that CloudVelox may file a claim or take action in any court having jurisdiction to protect its intellectual property or confidential or proprietary information. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms Import and Export Compliance. You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software and your Customer Content. You agree to comply with all applicable import, reimport, export, and re-export laws, rules, and regulations of the United States and foreign jurisdictions, including the Export Administration Regulations ( EAR ) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ( ITAR ) maintained by the U.S. Department of State, in connection with your Customer Content and your use of the Software and Service. You are solely responsible for compliance related to the manner in which you choose to use the Service, including your transfer and processing of your Customer Content and the provision of your Customer Content to Users Severability; Waiver; Construction. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. Includes and including are not limiting Remedies. Recourse against the United States for any alleged breach of this agreement must be made under the terms of the Federal Tort Claims Act or as a dispute under the contract disputes clause (Contract Disputes Act) as applicable. CloudVelox shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer No Assignment; Subcontracting. Neither party shall assign or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign these Terms in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets without any consent of the other party. Notwithstanding the foregoing, CloudVelox will have the right to engage subcontractors or service 7

8 providers in connection with these Terms. These Terms shall be binding upon the parties and their respective successors and permitted assigns Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, telecommunications failures, Third Party Service Provider, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible Independent Contractors. The parties relationship is that of an independent contractor, and neither party is an agent or partner of the other Notices. You are responsible for updating your data to provide CloudVelox with your most current address. In the event that the last address you have provided to CloudVelox is not valid, or for any reason is not capable of delivering to you any notices required by these Terms, CloudVelox s dispatch of the containing such notice will nonetheless constitute effective notice of the changes described on the notice. Any notice provided to CloudVelox pursuant to these Terms should be sent to: CloudVelox, Inc Mission College Blvd. Suite 1250 Santa Clara, CA Modifications; Entire Agreement. No modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing and signed by your authorized signatory and an officer of CloudVelox. These Terms, the underlying GSA Schedule Contract, the Schedule Pricelist and any applicable Orders, including and all exhibits and attachments, if any, are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters. 8