IBM provides IBM Cloudant data hosting services (the "Hosting Services") to you ("you" and "your" or "Subscriber") (Cloudant and Subscriber each a "Party" and collectively "Parties") subject to the following Terms of Service. In order to use the Hosting Services, you must first agree to these Terms of Service. You may not use the Hosting Services if you do not accept these Terms of Service. You can accept these Terms of Service by (i) clicking "I ACCEPT" where this option is made available to you in the user interface; or (ii) by accessing and using the Hosting Service, in which case you understand and agree that Cloudant will treat your use of the Hosting Services as acceptance of these Terms of Service from that point onwards.
IBM may make changes to these Terms of Service from time to time. When these changes are made, Cloudant will make a revised version of these Terms of Service available at cloudant.com/terms. You understand and agree that if you use the Hosting Services after the date on which these Terms of Service have changed, IBM will treat your continued use as acceptance of the revised Terms of Service.
You may not use the Hosting Services and may not accept these Terms of Service if (i) you are not of legal age to form a binding contract with IBM, or (ii) you are a person barred from receiving the Hosting Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Hosting Services.
Before you continue, you should print or save a local copy of these Terms of Service for your record.
"Derived Data" means all indices and calculations derived from the Primary Data and stored on the Hosting Platform.
"Hosting Platform" means Cloudant's data hosting platform currently known as "Cloudant," which includes Cloudant software and certain third-party software, and any updated versions of such platform made available by Cloudant.
"Hosting Services" means the data hosting services for Subscriber Data that Cloudant provides through the Hosting Platform.
"Primary Data" means any and all information that Cloudant receives from Subscriber and hosts in connection with these Terms of Service as an application service provider in whatever form or medium, in connection with the Hosting Services.
"Service Level" means the standard set forth below by which Cloudant measures the level of service it provides in these Terms of Service.
"Subscriber Data" means the Primary Data and the Derived Data, collectively.
Subject to the terms and conditions of these Terms of Service, IBM hereby grants to Subscriber a personal, non-exclusive, non-transferable, and non-sublicensable license for the Term (as defined below) to access and use the Hosting Platform.
Subscriber shall not and shall not assist others to:
During the registration process, you will be asked to create an account, which includes a unique sign-in name ("Sign-In Name"), password ("Password"), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future ("Unique Identifiers"). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one subscriber. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use or misuse of the Hosting Services using one or more of them. You will promptly inform IBM of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. IBM reserves the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason. IBM will not be liable for any loss or damage caused by any unauthorized use of your account.
Subscriber will pay IBM the fees set forth in the applicable Order Form with respect to the Hosting Services, the Consulting Services (if any), and the Support Services (if any) provided hereunder during the Term (the "Fees"). Subscriber will reimburse Cloudant for expenses incurred by IBM in connection with its performance of these Terms of Service to the extent expressly agreed and approved in advance by Subscriber in writing (the "Expenses"). Cloudant will invoice Subscriber for any agreed and pre-approved Expenses monthly in arrears. Except as otherwise expressly agreed and approved in advance in writing by Subscriber, IBM will be responsible for all costs and expenses incurred in connection with its performance of these Terms of Service. All amounts stated in these Terms of Service or on any invoice are in U.S. dollars, and all payments will be made in U.S. dollars. All properly invoiced amounts are due and payable within thirty (30) days of receipt. Subscriber will pay applicable sales, use, and other such taxes related to the services provided hereunder, (excluding any taxes imposed or based on IBM's income) or provide IBM evidence of exemption from such taxes. Overdue payments will accrue interest at an annual rate equal to two percent (2%) above the U.S. Prime Rate as published in the Wall Street Journal on the first day of the month in which the payment is due (or, if lower, the maximum allowable interest under applicable law) from due date until paid.
The Hosting Platform and any and all system-level intellectual property developed by IBM in the course of providing the Hosting Services hereunder (collectively, the "Hosting Platform IP") are the exclusive and confidential property of IBM, or the third parties from whom Cloudant has secured the right to use materials embedded or used in the Hosting Platform IP. Cloudant and such third parties shall retain all right and title, to the extent of their respective interests, to all proprietary rights in the Hosting Platform IP, and any other intellectual property owned or otherwise provided by IBM, including materials provided under attached Statements of Work ("SOWs"), if any. Subscriber shall have no right to use the Hosting Platform IP for any purpose other than in connection with utilizing the Hosting Services as set forth herein.
All Subscriber Data and any and all design documents (e.g., analysis algorithms) furnished by Subscriber in whatever form (collectively, the "Subscriber IP") are and shall remain the exclusive and confidential property of the Subscriber or of those third parties designated by Subscriber as having an interest therein. Subscriber and such third parties shall retain all right and title (including, without limitation, all proprietary rights), to the extent of their respective interests, in and to the Subscriber IP. IBM shall have no right to copy, transfer, sell, disclose, license, alter, or otherwise use the Subscriber IP for any purpose, except pursuant to the terms set forth herein in connection with the Hosting Services.
IBM will schedule maintenance to the Hosting Platform during non-peak usage hours. Any scheduled maintenance that may result in the Hosting Services being unavailable will be notified to Subscriber's technical contact no less than 1 business day before the commencement of the maintenance unless maintenance is being conducted due to an emergency.
IBM may temporarily limit or suspend the availability of all or part of the Hosting Platform if it is necessary for reasons of public safety, security, maintenance of the Hosting Services, interoperability of services, data protection, or to perform work that is necessary for operational or technical reasons. If emergency maintenance is required as defined in this Section then IBM will notify Subscriber's technical contact immediately upon commencement of the maintenance.
Subscriber has the option, but not the obligation, to upgrade its standard customer support plan ("Support Services") to Gold Support, which shall be billed as set forth in the applicable Order Form.
Gold Support offers twenty-four (24) hour, seven (7) days a week service and support, which includes: less than four (4) hour response to email tickets. Gold plan also includes two (2) hours a month of Integration Consulting Services.
For purposes of these Terms of Service, Confidential Information shall mean any confidential or other proprietary information that is disclosed by or on behalf of a Party (the "Disclosing Party") to the other Party (the "Receiving Party"), whether disclosed orally or in writing, whether disclosed before or after the Effective Date, and whether or not marked or otherwise designated as confidential, including, without limitation, the Subscriber Data, the Hosting Platform, information relating to the Disclosing Party's customers, potential customers, suppliers, financial and business information, technological information, specifications, business and product plans, the terms and conditions of these Terms of Service, and any other non-public information disclosed. Notwithstanding the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the Receiving Party; (ii) is publicly disclosed by the Receiving Party with the prior, written approval of the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or access to Confidential Information; or (iv) is intentionally disclosed by the Disclosing Party to a third party without restriction on disclosure. Each Party agrees: (i) not to disclose, or permit any third party or entity access to, the Disclosing Party's Confidential Information (or any portion thereof) without prior written permission of the Disclosing Party; (ii) not to utilize, except as permitted under these Terms of Service or as required to perform any obligations under these Terms of Service, the Disclosing Party's Confidential Information (or any portion thereof); (iii) to ensure that its employees shall only be given access to the Disclosing Party's Confidential Information to the extent necessary for such employees to perform their duties under these Terms of Service; and (iv) to ensure that any of its employees who receive access to the Disclosing Party's Confidential Information are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or disclosing such Confidential Information, except as required to perform any obligations under these Terms of Service. In the event the Receiving Party becomes or may become legally compelled to disclose any of the Disclosing Party's Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of these Terms of Service. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use its reasonable efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
The term of the Hosting Services (the "Term") will commence upon your acceptance of these Terms of Service and will continue for the term specified in the applicable Order Form unless terminated as set forth in the following section.
IBM reserves the right, in its sole discretion, to restrict, suspend, or terminate these Terms of Service and your access to all or any part of the Hosting Services, at any time and for any reason (or no reason) without liability with thirty (30) days prior notice.
This agreement shall remain in effect for the Initial Term set forth on the Order Form and shall automatically renew for additional one year terms. Subscriber may terminate service at any time upon thirty (30) days written notice after the Initial Term. Upon termination, Subscriber will liable for all charges incurred before termination.
At the end of the Term and upon your written request (which may be made by email), IBM shall: (i) archive and export to Subscriber in an open format all Primary Data from the Hosting Platform; and (ii) to the extent technically feasible, use commercially reasonable efforts to export to Subscriber any Derived Data in an open format; provided, however, that Subscriber shall pay for any bandwidth costs associated with any such archiving and/or exporting listed under subparagraphs of the "Subscriber Warranties" section.
The following provisions shall survive any termination of the Hosting Services: "Ownership"; "Effect of Termination"; "Representations and Warranties"; "Correction of Errors; Limitation of Liability"; "Indemnification"; "Miscellaneous Provisions"; and this "Survival" section.
Each Party represents and warrants that it has the full right, power and authority to enter into these Terms of Service and to discharge its obligations hereunder.
Subscriber represents, warrants, and covenants that:
Hosting Services are designed to be available 24/7 subject to maintenance. IBM warrants it will provide the Hosting Services, Consulting Services and Support Services using commercially reasonable care and skill and subject to the current descriptions for such services in these Terms of Service or an Order Form.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE HOSTING SERVICES IS AT YOUR SOLE RISK AND THAT THE HOSTING SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND THAT THE OPERATION OF THE HOSTING PLATFORM MAY NOT BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY SET FORTH IN SECTION "WARRANTIES", IBM MAKES NO WARRANTIES IN CONNECTION WITH THE HOSTING SERVICES OR OTHERWISE WITH RESPECT TO THESE TERMS OF SERVICE AND HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT IBM MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
In the event of a material error or omission by IBM related to the provision of the Hosting Services or cessation in the provision of the Hosting Services, Subscriber's sole remedy shall be to have IBM use commercially reasonable efforts to correct such error, omission, or cessation. Subscriber shall advise IBM in writing of such error, omission, or cessation reasonably promptly after discovery thereof by Subscriber.
IN NO EVENT SHALL IBM'S LIABILITY ARISING FROM OR RELATING TO THE HOSTING SERVICES OR OTHERWISE ARISING UNDER THESE TERMS OF SERVICE, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, INDEMNITY OR OTHERWISE), EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID TO IBM BY SUBSCRIBER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE THE CLAIM AROSE.
TO THE EXTENT THE FOREGOING EXCLUSIONS OF LIABILITY ARE NOT PERMITTED UNDER APPLICABLE LAW, IBM 'S LIABILITY IN SUCH CASE WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Subscriber will defend, indemnify, and hold harmless IBM and its affiliates, and each of their officers, directors, shareholders and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney's fees and expert and consulting fees) in connection with (i) any third-party claims that any information and/or data Subscriber provides to IBM for hosting infringes, misappropriates, or violates any third-party patents, copyrights, trade secrets, trademark, contractual, or other intellectual property or proprietary rights, and (ii) any claims arising from or relating to Subscriber's breach or alleged breach of its representations and warranties hereunder.
The parties may provide notice, including IBM's changes to these Terms of Service, by email, regular mail, or postings on the Hosting Services.
These Terms of Service, and any disputes directly or indirectly arising from or relating to these Terms of Service, will be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law.
The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in New York for all suits, actions or proceedings directly or indirectly arising out of or relating to these Terms of Service, and waive any and all objections to such courts, including but not limited to objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to these Terms of Service.
The rights and remedies of IBM are cumulative and not alternative. No waiver of any rights is to be charged against IBM unless such waiver is in writing signed by an authorized representative of IBM. Neither the failure nor any delay by IBM in exercising any right, power, or privilege under these Terms of Service will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
If any provision of these Terms of Service is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms of Service will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties' intent.
Nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other non-economic reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party (collectively, a "Force Majeure Event"), provided that such Party gives the other Party prompt written notice of the failure to perform and the reason therefor and uses commercially reasonable efforts to limit the resulting delay in its performance.
Each Party will comply with all applicable export and import laws and associated embargo and economic sanction regulations, including those of the United States, that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to certain countries, or for certain end uses or end users.
These Terms of Service (including the Schedules hereto) contain the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms, or conditions, and neither Party has relied upon any representation, express or implied, not contained in these Terms of Service.