Cumulocity
PARTNER CLOUD SERVICES AGREEMENT
This Partner Cloud Services Agreement, including any Cloud Service specific information and additional click through terms on the sign-up webpage https://www.cumulocity.com/ecosystem/partners-registration/ to which this Partner Cloud Services Agreement in linked, (collectively, the “Agreement”) is entered into by and between Cumulocity Inc.. (“Supplier”) and partner and will be effective as of the date Partner accepts the terms of this Agreement as set forth above (“Effective Date”). Supplier and Party are each a “Party” and together the “Parties.”
1. USE OF SERVICES
Provision of Cloud Services
Supplier grants Partner a non-exclusive, non-transferable, non-sublicensable right to access and use the Supplier web-based products and services identified on the sign-up webpage to which this Partner Cloud Services Agreement is linked (“Cloud Services”), including the then current version of any user manuals and operating instructions generally provided with the Cloud Services (“Documentation”) for a period of ninety (90) days from the Effective Date unless otherwise extended at Supplier’s sole discretion (“Duration Term”). PARTNER MAY USE THE CLOUD SERVICES SUBJECT TO THE TERMS OF THIS AGREEMENT AND SOLELY FOR PARTNER’S DEMONSTRATION AND TESTING PURPOSES. PARTNER WILL NOT PROCESS ANY LIVE DATA, INCLUDING PERSONAL DATA, IN CONNECTION WITH ITS DEMO AND TESTING OF THE CLOUD SERVICES. WHEN DEMONSTRATIONS OF PROCESSING PERSONAL DATA IS NECESSARY, PARTNER WILL NOTIFY SUPPLIER WITHOUT IMMEDIATELY.
User Access
Partner is solely responsible for all User use and access to the Cloud Services and the security of any Credentials and will immediately report to Supplier any suspected unauthorized use of the Cloud Services or Credentials. “Users” of the Cloud Services mean Partner (if Partner is an individual) or the employees or contractors of Partner(if Partner is an organization) who are authorized by Partner in accordance with this Agreement to access the Cloud Services using Partner’s account credentials created for the Cloud Services (“Credentials”).
Restrictions
Partner will comply with all laws and regulations applicable to Partner and to Partner’s use of the Cloud Services. Partner will not, or permit or cause any third party to: (a) use the Cloud Services other than expressly authorized by, and in accordance with the usage terms of, this Agreement; (b) process any production data or any data that qualifies as personal data under any applicable laws, including without limitation the General Data Protection Regulation; (c) commercially exploit or make the Cloud Services available to any third party; (d) disassemble, reverse engineer, reverse compile, translate, modify, adapt, alter, copy or create derivative works from any products or services provided with the Cloud Services; (e) interfere with or disrupt the integrity or performance of the Cloud Services or the data contained therein in any way, including but not limited to: (i) conducting penetration testing in multi-tenant environments; (ii) conducting penetration tests in single-tenant environments without Supplier’s prior written consent; (iii) attempting to gain unauthorized access to the Cloud Services or their related systems or networks; or (iv) storing or transmitting a virus or other malicious code through the Cloud Services; (f) disseminate performance-related information relating to the Cloud Services; or (g) use, access, or provide access to the Cloud Services in any manner that violates an applicable economic, financial or trade prohibition, sanction or embargo, which may include but is not limited to such prohibitions, sanctions or embargoes enacted or imposed by law other restrictive measure and administered or enforced by (i) the United Nations Security Council, (ii) the Unites States government, (iii) the European Union or any of its member states’ governments, (iv) the United Kingdom, (v) the Singaporean government, (vi) the Swiss Confederation, or (vii) any other authority that has jurisdiction over Partner, Supplier or the relevant project or activity for which the Cloud Service is being used, accessed or provided.
Cloud Services Availability
Supplier will use commercially reasonable efforts to make the Cloud Services accessible to Partner, subject to the availability of third-party infrastructure, required and emergency maintenance, availability of third-party networks and communications facilities, and force majeure events.
No Cloud Services Support
Supplier, in its sole discretion, may provide (or, after providing, withdraw, or terminate) limited maintenance or support for the Cloud Services during the Duration Term. Notwithstanding any decision by Supplier to exercise its discretion in providing Prtner with limited maintenance or support for the Cloud Services, in no event is Supplier obligation to provide any maintenance or support for the Cloud Services.
Reservation of Rights
Supplier owns all intellectual property rights in and to the Cloud Services, Documentation and all related materials and derivative works thereof. There is no transfer or assignment by Supplier of any ownership right and Supplier reserves all rights not expressly granted under this Agreement.
2. PARTNER INFORMATION
Operational Data:
Feedback: Supplier will automatically collect information associated with Partner’s access and use of the Cloud Services, including, without limitation application telemetry, IP addresses, IP configurations, stored sessions, open ports, Credentials, network metadata, and device operating system, status, version and configuration (collectively, “Operational Data”). Supplier may use the Operational Data to monitor, analyze, develop, support or improve the performance of the Cloud Services. Partner grants to Supplier a worldwide, perpetual, irrevocable license to use and commercialize any suggestions, enhancement, requests, recommendations, corrections or other feedback provided by Partner relating to the Cloud Services.
Partner Data
Except for Operational Data, Partner owns all content, information, materials and intellectual property provided by Partner in connection with Partner’s use of the Cloud Services (“Partner Data”). Partner is solely responsible for its provision and use of Partner Data with the Cloud Services; the accuracy, quality and content of the Partner Data; and obtaining all necessary rights, consents and permissions. Partner will comply with all applicable laws, in its provision and use of Partner Data in connection with the Cloud Services. Partner grants Supplier a worldwide, irrevocable, non-transferable, non-assignable (except as permitted under this Agreement), sub-licensable, non-exclusive license to access, retrieve, store, copy, display, distribute, transmit and otherwise use Partner Data associated with the Cloud Services: (a) in connection with maintaining, providing and/or making available the Cloud Services; and (b) as reasonably required to cooperate with legitimate governmental requests, subpoenas or court orders, provided that Supplier gives Partner reasonable notice of the demand to allow Partner to seek a protective order or other appropriate remedy unless Supplier is legally prohibited from doing so.
Privacy Notice
Supplier will collect and process any Operational Data that qualifies as personal data according to Art. 4 No. 1 of the General Data Protection Regulation in accordance with its then current Privacy Notice. Supplier may change its Privacy Notice from time to time by posting a new version at https://cumulocity.com/docs/legal-notices/privacy-notice/.
Security
Supplier will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Partner Data. Supplier will comply with its then current Cloud Information Security Policy as amended from time to time and available on request (subject to a written confidentiality agreement between the Parties).
3. CONFIDENTIALITY
Confidential Information
Each Party will have access to confidential or nonpublic information (“Confidential Information”) of the other Party or third parties. Confidential Information disclosed is proprietary and will remain the sole property of the disclosing Party or such third parties. The Cloud Services and Documentation are Confidential Information of Supplier. Confidential Information will not include information that: (i) is or becomes publicly available or enters the public domain through no fault of the recipient; (ii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations; (iii) is already in the recipient’s possession free of any confidentiality obligations at the time of disclosure; (iv) is independently developed by the recipient; or (v) is approved, in writing, for release or disclosure without restriction.
Confidentiality Obligations
Each Party agrees to: (i) use Confidential Information only for the purposes of this Agreement; (ii) hold Confidential Information in confidence and protect it from dissemination to, and use by, any third party; (iii) not to create any derivative work from Confidential Information; (iv) restrict access to Confidential Information to its personnel, affiliates, agents, and contractors who need access to such Confidential Information and who have agreed in writing to treat such Confidential Information in accordance with this Agreement; and (v) return or destroy all Confidential Information of the other Party upon termination or expiration of this Agreement. If the recipient is required by law or valid legal order to disclose Confidential Information, the recipient will, unless prohibited by law, give reasonable notice of such demand to allow the disclosing Party to seek a protective order or other remedy.
4. WARRANTY DISCLAIMER
Warranty Disclaimer
Partner acknowledges that the Cloud Services are provided “as is” without any warranty whatsoever. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUPPLIER DOES NOT WARRANT THAT THE CLOUD SERVICES WILL OPERATE UNINTERRUPTED OR ERROR FREE AND SUPPLIER DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
5. INDEMNITY
Partner Indemnity
Partner will indemnify Supplier from any third-party action against Supplier to the extent proximately based upon an allegation arising from (i) any access to or use of Partner Data with the Cloud Services or (ii) any modification or use of the Cloud Services with any Partner application, provided that Supplier (a) promptly notifies Partner of any such action; (b) gives Partner full authority, information, and assistance to defend such claim; and (c) gives Partner sole control of the defense of such claim and all negotiations for the settlement of such claim, except that Partner will not enter into any settlement that adversely affects any rights of or imposes any obligation or liability on Supplier without Supplier’s prior written consent.
6. LIMITATION OF LIABILITY
Limitation of Liability:
SUPPLIER IS NOT LIABLE FOR ANY LOSSES OR DAMAGES THAT MAY ARISING FROM OR RELATE TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR OTHER EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS), REGARDLESS OF THE FORM ALLEGED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. USAGE LIMITS
Usage Limits:
Partner will ensure that its use of the Cloud Services does not exceed the usage terms set forth in this Agreement.
8. SUSPENSION AND TERMINATION
Suspension:
Supplier may suspend Partner’s access to the Cloud Services to: (i) comply with any law, regulation, government or court order or (ii) prevent any degradation of the Cloud Services caused by Partner.
Termination:
This Agreement will automatically terminate upon expiration of the Duration Term. Notwithstanding the foregoing, Supplier may immediately terminate this Agreement upon notice to Partner. Upon any termination of this Agreement, all access to the Cloud Services will be removed and Partner will not have any access to the Partner Data processed by the Cloud Services. All disclaimers of warranties, limitations of liability, and provisions for the protection of Supplier’s proprietary rights in the Cloud Services as set forth herein will survive any termination of this Agreement.
9. GENERAL
Third-Party Components
If Partner downloads any portion of the Cloud Services, including but not limited to plug-ins or connectors or fat clients (“Cloud Service Downloadable”), Partner acknowledges that such Cloud Service Downloadable may contain or be distributed with certain open source, free, or commercial third-party components, which may be subject to special license terms and conditions (“Third Party Terms”) located at https://third-parties.c8y.io/build-sets/third-parties-cloud.html. Third Party Terms include important licensing and warranty information and disclaimers of third-party licensors.
Export Control
Partner may not use, access, download, provide access to, or otherwise export or re-export the Cloud Services, in whole or in part, except as explicitly allowed in this Agreement and in compliance with all applicable export laws, regulations, and restrictions (whether international, federal, state, local, or provincial). Supplier reserves the right to not perform any obligation under this Agreement if prohibited by such export laws, regulations, or restrictions. Without limiting the generality of the foregoing, Partner represents and warrants that: (a) Partner is not a citizen, national, or resident of, and is not under control of, the government of Cuba, Iran, North Korea, Sudan, Syria, nor any country to which the European Union (EU) or the United States have prohibited export; (b) Partner is not listed on the EU’s ‘Consolidated List of persons, groups and entities subject to EU financial sanctions’ or on the United States Department of Treasury lists of ‘Specially Designated Nationals’, ‘Specially Designated Terrorists’, or ‘Specially Designated Narcotic Traffickers’, nor is Partner listed on the United States Department of Commerce ‘Denied Persons List’ or ‘Entity List’; and (c) Partner will not download, grant access to, or otherwise export or re-export the Cloud Services, directly or indirectly, to (i) the countries, or the citizens, nationals or residents of the countries, referenced in subsection (a) or (ii) the persons, groups, or entities referenced in subsection (b).
Anti-Corruption
The Parties will comply with all applicable laws, regulations, and requirements (whether international, federal, state, local, or provincial) prohibiting bribery, money laundering, and anti-corruption, including the U.S. Foreign Corrupt Practices Act.
Assignment
Partner may not assign, transfer, delegate, or sublicense any of Partner’s rights or obligations under this Agreement without Supplier’s prior written consent. Any assignment, transfer, delegation, or grant of sublicense without Supplier’s consent is null and void.
Dispute Resolution
In the event of a dispute, each Party will appoint a senior management representative to negotiate in good faith to resolve the dispute. Formal proceedings may not commence until 30 days after the initial written request to negotiate the dispute; provided, however, that a Party may file for formal proceedings at any time to avoid the expiration of any limitations period, preserve a superior position with respect to other creditors, or apply for interim, injunctive, or equitable relief.
Governing Law
This Agreement is governed by the laws of the State of New York without giving effect to its conflicts-of-laws provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Uniform Commercial Code (UCC). The Parties consent to exclusive personal jurisdiction in federal and state courts located in the Southern District of New York. In the event a dispute arising under this Agreement results in litigation, the non-prevailing Party will pay the court costs and reasonable attorneys’ fees and expenses of the prevailing Party. EACH PARTY WAIVES ALL RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF THIS AGREEMENT.
Notices
All notices and demands relating to this Agreement must be in writing and sent to the other Party: (a) if to Supplier, at 251 Little Falls Drive, Wilmington, county of New Castle, Delaware 19808, to the attention of the Legal Department and (b) if to Partner, at the email address Partner provided on the sign-up webpage. All notices and demands will be effective upon delivery when: (i) delivered in person with signed receipt; (ii) sent by registered mail (return receipt requested); (iii) sent by nationally recognized trackable carrier service; or (iv) on the date sent by email.
U.S. Government Use
If Partner is a U.S. Government entity, the Cloud Services, including the related software, and Documentation are “commercial computer software” and “commercial computer software documentation” under applicable Federal Acquisition Regulation (or other similar regulation) and are governed solely by the terms of this Agreement.
Entire Agreement
Waiver; Priority; Severability: This Agreement constitutes the entire agreement between the Parties and supersedes all prior written and oral agreements and communications related to the subject matter of this Agreement. Any waiver under this Agreement must be in writing and signed by the Party granting the waiver. A waiver granted under this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other provision of this Agreement. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. In the event of any conflict between any provision of this Agreement and any Cloud Services specific information or additional click through terms on the sign-up webpage, the provisions of this Agreement will prevail (except that the DPA will prevail with respect to the Parties’ data protection obligations). If any provision of this Agreement is held invalid or unenforceable, the provision will be limited to the minimum effect necessary, and the remaining provisions of this Agreement will remain binding and enforceable., the provisions of this Agreement will prevail (except that the DPA will prevail with respect to the Parties’ data protection obligations). If any provision of this Agreement is held invalid or unenforceable, the provision will be limited to the minimum effect necessary, and the remaining provisions of this Agreement will remain binding and enforceable.
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