CloudTrax Services Agreement
Last Revised: April 28, 2015
This CloudTrax Services Agreement (this “Agreement”), by and between CloudTrax and you (“you” or “Customer”), governs your access to, and use of, the CloudTrax cloud-based network controller platform. Please read this Agreement carefully. If you do not agree to all the terms and conditions of this Agreement, you may not access or use the Services.
BY CLICKING THE “I AGREE” BUTTON, CREATING A CLOUDTRAX ACCOUNT OR ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO COMPLY WITH AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
If you are entering into this Agreement on behalf of a company or other entity, you represent that you have the authority to bind such entity to the terms and conditions of this Agreement. In such event, “you” and “your” as used in this Agreement refer to such entity.
2. Services. As used in this Agreement, “Services” means the cloud‑based network controller platform made available by CloudTrax through the CloudTrax website located at *.cloudtrax.com or through a CloudTrax mobile app. On the condition that you continue to comply with the terms and conditions of this Agreement, CloudTrax hereby grants to you the nonexclusive, limited right to access and use the Services to set up and manage one or more wireless networks consisting of Designated Devices. A list of “Designated Devices” is located at [link]. CloudTrax may revise the list of Designated Devices from time to time.
3. Account. To access the Services, you need to set up an account on the CloudTrax website. You are responsible for all acts and omissions of the users of your account and all activities taken through the use of your account.
4. Authorized Use. You may use the Services only within the scope of the rights granted in Section 2 of this Agreement. You have no right to (a) use any part of the Services to set up or manage any wireless networks that include routers, access points, gateways, repeaters or devices other than Designated Devices, (b) allow any unauthorized person to access or use the Services through your account, (c) reverse engineer or attempt to discover any code or trade secrets related to any part of the Services, (d) modify or create derivative works based on any aspect of the Services, except by your use of the built-in splash page editor or other built-in tools that CloudTrax may offer to you to customize the user interface components of the networks you create by your use of the CloudTrax Services, (e) use the Services in any way that interferes with, disrupts, damages, or accesses in any unauthorized manner the servers, networks, data or other properties or services of CloudTrax or any other person or entity, (f) access or use any part of the Services to develop a competitive service or product, or (g) use the Services outside the scope of the rights granted in Section 2 of this Agreement (collectively “Unauthorized Activities”). CloudTrax grants to you the rights set forth in Section 2 of this Agreement for no fee on the condition that you do not engage in any Unauthorized Activity, and you agree that you will not engage in any Unauthorized Activity.
5. Compliance with Law. You agree to comply with all laws applicable to your access to or use of the Services.
6. Suspension. CloudTrax reserves the right to suspend or disable Customer’s access to and/or use of the Services without notice or liability if CloudTrax believes such suspension is necessary to comply with CloudTrax’s legal obligations.
7. Modification of the Services. Notwithstanding anything to the contrary in this Agreement or in any CloudTrax website, CloudTrax reserves the right to change, add or remove any functionality, features and/or other aspects of the Services, from time to time.
8. Maintenance and Upgrades. The Services may be unavailable to you from time to time for maintenance and/or upgrades. CloudTrax will use commercially reasonable efforts to minimize any such disruptions.
9. Third Party Services. As a convenience to its customers, CloudTrax may provide links to services or products offered by third parties. You may wish to use such services or products in connection with your use of the CloudTrax Services. Each of such third-party services or products is provided to you by the provider of such services pursuant to separate agreements between you and the provider of such services or products. CloudTrax does not endorse any third-party service or product. CloudTrax makes no representation or warranty with respect to any third-party service or product, and CloudTrax assumes no liability with respect to your use of any third‑party service or product.
10. Proprietary Rights. CloudTrax retains all rights, title and interest, including all intellectual property rights, in and to CloudTrax’s network controller platform and each of its components and features. All information that you learn about CloudTrax or the Services arising out of your access to or use of the Services is confidential information of CloudTrax. You agree not to use CloudTrax confidential information for any reason other than for your use of the Services. You agree not to disclose CloudTrax confidential information.
11. Limited Warranty. CloudTrax warrants to Customer that the Services will perform substantially as described in CloudTrax’s then-current, published user documentation. CloudTrax’s sole obligation under this warranty is to use commercially reasonable efforts to correct reproducible failures of the Services to perform substantially as described in CloudTrax’s then-current published user documentation
12. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11, CLOUDTRAX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
13. Infringement. If anyone asserts that use of the Services infringes someone’s intellectual property rights, CloudTrax may (a) modify the Services to be non-infringing, (b) delete the infringing feature or features of the Services, or (c) obtain a license for your continued use of the Services.
14. Incidental and Consequential Damages. CLOUDTRAX WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, LOSS OF REVENUE, OR LOSS OF DATA, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF CLOUDTRAX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Limitation of Liability. In no event will CloudTrax’s total cumulative liability to Customer and all other persons who use the Services through Customer’s account, for any and all claims, exceed 25 percent of the amount paid by Customer for the Designated Devices used in the wireless networks managed by the CloudTrax Services. CloudTrax grants to you the rights set forth in Section 2 of this Agreement for no fee on the condition that you agree to the cap on CloudTrax’s liability set forth in this Section.
16. Indemnity. Customer will defend, indemnify, and hold CloudTrax, CloudTrax’s affiliates, and their respective employees, officers, directors, agents, customers, successors and assigns harmless from and against any and all liability, damages, losses, costs and expenses, including reasonable attorneys’ fees, legal expenses, and costs of investigation incurred or suffered by each indemnified party, arising out of, relating to or resulting from all claims, demands, suits, actions, investigations or proceedings brought by a third party to the extent based on (a) any actual or alleged negligent, reckless or intentionally wrongful act of Customer or any user of a network created or managed by use of the Services, or (b) Customer’s use of the Services in a manner not described in CloudTrax’s published user documentation pertaining to the Services.
17. Termination. You may stop using the Services at any time. Notwithstanding anything to the contrary in this Agreement or in any CloudTrax website, CloudTrax may terminate this Agreement and your rights to access and use the Services if you breach this Agreement.
18. Amendment. CloudTrax will have the right to change the terms and conditions of this Agreement at any time and from time to time by providing notice that the terms and conditions have been changed. CloudTrax may provide such notice by posting a notice on CloudTrax’s website, revising the date at the top of this Agreement, sending an email, or by any other means. Your continued use of the Services following a notice of a change in the terms and conditions will constitute your acceptance of such changes. If you do not agree to any such change, you agree to stop using the Services.
19. Applicable Law and Venue. This Agreement will be governed, interpreted, construed and enforced in accordance with the laws of the State of Oregon, U.S.A., without reference to its rules relating to choice of law to the contrary. Customer and CloudTrax hereby consent to the jurisdiction of the state and federal courts located in Multnomah County, State of Oregon, U.S.A., with respect to any action or proceeding arising out of or related to this Agreement. Neither Party will prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement or the Services except in such courts.
20. Events Beyond Reasonable Control. CloudTrax will not be liable as a result of any cause or condition beyond its reasonable control.
21. Export Compliance. You represent that you are not named on any U.S. government denied-party list. You will not permit anyone to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
22. Entire Agreement. This Agreement is the entire agreement between you and CloudTrax regarding your use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter, including anything in CloudTrax’s website.
23. Waiver. No failure or delay by CloudTrax in exercising any right under this Agreement will constitute a waiver of that right.
24. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
25. Assignment. Customer will not assign this Agreement or any of its rights under this Agreement, directly, by operation of law or otherwise, without the prior written consent of CloudTrax. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.