UPDATED JULY 17, 2019
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY USING THE BONSAI.IO WEBSITE AND/OR ANY SERVICES PROVIDED BY ONE MORE CLOUD, INC., YOU ARE HEREBY AGREEING TO THESE TERMS AND CONDITIONS.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY THESE TERMS, AND THAT YOU ARE AUTHORIZED TO DO SO. IF YOU ARE ACCEPTING THIS AGREEMENT AND USING THE SERVICES ON BEHALF OF A COMPANY, ORGANIZATION, GOVERNMENT, OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO THE COMPANY THAT YOU HAVE FULL POWER AND AUTHORITY TO DO SO.
The following capitalized terms shall have the following meanings whenever used in this Agreement.
Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Services.
Company may revise Service features and functions at any time, including without limitation by removing, modifying, such features and functions, temporarily or permanently.
This list of prohibitions provides examples and is not complete or exclusive. This Agreement does not require the Company to take any action against Customer or any User or other third party for violating this Section 6.1, or this Agreement, but Company is free to take any such action it sees fit. The Company may suspend or terminate Customer’s access to the Services or Customer’s account without advanced notice and for any reason, in addition to such other remedies as Company may have.
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever. The term “CONFIDENTIAL INFORMATION” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Company’s business, operations and properties, including information about Company’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
Customer agrees that breach of this Article 8 would cause Company irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Company will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
With respect to each item of Confidential Information, the obligations of Section 8.1 above (Nondisclosure) will terminate 3 years after the date of disclosure; provided that such obligations related to Confidential Information constituting Company’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Company or certify, in writing, the destruction thereof.
This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Company will retain all right, title, and interest in and to all Confidential Information.
Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
CUSTOMER ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: 1. COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; 1. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND 1. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall defend, indemnify, and hold harmless Company and the Company Associates (as defined below) against any “INDEMNIFIED CLAIM,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Services, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Services through Customer’s account or Company’s use of Customer Marks in accordance with this Agreement; and (d) claims that use of the Services through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Company’s negligence. Customer’s obligations set forth in this Article 10 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “COMPANY ASSOCIATES” are Company’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the Services, please notify us, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing:
Notifications of claimed infringement can be provided to the following:
Promptly after receipt of a valid removal notification, we will remove or disable access to the allegedly infringing content. We will also notify the party that posted it of your claim that the material is infringing and will give that party an opportunity to send us a written counter-notification, which may result in us re-posting the content if we believe that it is not infringing.
We may terminate your account, and/or your access to the Services for any or no cause, at any time. After termination, you agree that you shall no longer access or utilize the Services. The provisions of this Agreement which by their intent or meaning are intended to survive such termination, including without limitation the provisions relating to non-disclosure, disclaimer of warranties, limitations of liability, indemnification and dispute resolution shall survive any termination of this Agreement and any termination of your use of or subscription to the Services and shall continue to apply indefinitely.
The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Company employee or contractor will be an employee of Customer.
Company may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to email@example.com, and such notices will be deemed received 72 hours after they are sent.
No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
Customer may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent. Except to the extent forbidden in this Section 13.5, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
This Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of the Northern District of California. This Section 13.8 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
Customer shall not: (a) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software provided by Company or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Services in, or export such software to, a country subject to a United States embargo (including Cuba, Iran, North Korea, Sudan, and Syria).
This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter.