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This Evaluation Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service (as defined below), and is an agreement between CloudQuest, Inc. (“CloudQuest,” “we,” “us,” or “our”) and you or the entity you represent (“you”). This Agreement takes effect when you click an “Accept,” “Sign In” or similar button or check box presented with these terms or, if earlier, when you access or use the Service (the “Effective Date”). By accepting this Agreement, you agree to be legally bound by its terms. You represent to CloudQuest that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent that you have legal authority to bind that entity. Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in Section 14 .

  1. Subscription Authorizations
    Subject to the terms of this Agreement and the applicable Policies and Order, CloudQuest authorizes you to access and use the Service solely for your internal, business use, by and through Authorized Users. This authorization is limited, nonexclusive and nontransferable.
  2. Evaluation Trial
    CloudQuest will make the Service available to you without charge (whether as part of a free trial, beta release, proof-of-concept implementation or otherwise) until the earlier of:
    • The end of the period for which you registered to use the Service without payment,
    • The start date of any Order you enter into to pay for the Service, or
    • Termination by CloudQuest at any time in its sole discretion.
    Additional free use, trial, beta-release or proof-of-concept terms and conditions may appear on the applicable registration web page or in the applicable Order. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. If you enter an Order to pay for the Service, then your use of the Service will be subject to a separate Master Subscription Agreement.
  3. Non-CloudQuest Services and Material
    1. The Service supports integrations and other connections to certain Non-CloudQuest Services. If an Authorized User chooses to use a Non-CloudQuest Service with the Service, in doing so, you hereby grant to CloudQuest permission to interoperate with the Non-CloudQuest Service. Your acquisition and use of Non-CloudQuest Services is governed solely by the terms of the relationship between you and the provider of the Non-CloudQuest Services.
    2. Although you may be able to connect to or otherwise access Non-CloudQuest Services or other Non-CloudQuest Material through the Site or Service, you acknowledge and agree that:
      • CloudQuest does not control and is not responsible for any Non-CloudQuest Material;
      • CloudQuest has no liability with respect to any use of Non-CloudQuest Material; and
      • you are responsible for complying with CloudQuest's Acceptable Use Policy and with any licenses and other terms applicable to the Non-CloudQuest Material. Any changes to Non-CloudQuest Material, including their availability or unavailability, during the Order Term does not affect your obligations under this Agreement.
  4. Use of Customer Data
    You hereby grant CloudQuest a worldwide, non-exclusive, royalty-free right and license during the Order Term to use, reproduce, transmit, perform, display and store Customer Data for the purposes of CloudQuest and, subject to Section 14.3, its Affiliates and third-party Providers providing and supporting the Service for your benefit. Subject to the confidentiality obligations contained in Section 8, you agree CloudQuest may additionally use Customer Data: (a) to maintain, evaluate, develop and improve its products and services; and (b) in aggregate form only, not attributable to you, for research and marketing purposes. The Privacy Policy does not apply to Customer Data.
  5. Privacy and Security
    1. User Personal Data is required by CloudQuest to provide and support the Service, for example, to authenticate Authorized Users and to respond to requests for Support. You shall ensure that all User Personal Data is accurate and correct at all times during the Order Term. CloudQuest shall only use User Personal Data in accordance with the Privacy Policy and Applicable Law. Except for limited User Personal Data, you acknowledge the Service is not intended for use by you or any Authorized User to transfer, process, use or store information relating to an identified or identifiable natural person, and you agree to not use the Service for such purpose.
    2. Without limiting the foregoing, you represent and agree that that you shall not include in Customer Data any Sensitive Personal Information. For such purpose, “Sensitive Personal Information” means any information that:
      • must be protected in accordance with specific or heightened security requirements imposed by applicable law or industry standards; or
      • would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure.
      Examples of Sensitive Personal Information include without limitation government-issued identification numbers (such as driver's license numbers or Social Security numbers), financial account numbers, non-public personal information (as defined by the Financial Services Modernization Act of 1999 and applicable regulations), card holder data (as defined by the PCI DSS), and protected health information (as defined by the Health Insurance Portability and Accountability Act of 1996 and applicable regulations).
  6. Your Content
    1. You shall be solely responsible for providing, installing and maintaining at your own expense all equipment, facilities and services necessary to enable Authorized Users' access and use of the Service.
    2. You shall be strictly responsible for the performance of your Affiliates and their personnel (including employees and contractors) and Authorized Users, and their use of the Service and Support, in compliance with this Agreement. Without limiting the foregoing, you represent and agree that: (a) you or your licensors have all rights in the User Personal Data and Customer Data (including without limitation having provided all notices and received all consents and authorizations) required for the Parties to perform their respective obligations and exercise their respective rights in connection with this Agreement; and (b) you shall be solely responsible for ensuring that the use of User Personal Data and Customer Data that Authorized Users post, send or otherwise make available using the Service complies with the Acceptable Use Policy, all Applicable Laws, and any other legal or contractual restrictions relating to User Personal Data or Customer Data.
    3. Subject to CloudQuest's compliance with the Privacy Policy, you are solely responsible for ensuring the security and confidentiality of all User Personal Data. Without limiting the foregoing, you shall use commercially reasonable efforts to prevent unauthorized access or use of the Service, and shall contact CloudQuest promptly if: (a) User Personal Data related to the Service, or any associated password, is lost, stolen or disclosed to an unauthorized person; or (b) you reasonably believe the Service has otherwise been compromised.
    4. No provision of this Agreement includes the right to, and you shall not, directly or indirectly:
      • enable any person or entity other than Authorized Users to access and use the Service;
      • modify or create any derivative work based upon the Service;
      • engage in, permit or suffer to continue any copying or distribution of the Service;
      • reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the Service (except to the extent such restriction is limited under Applicable Law);
      • access the Service in order to build a competitive solution or to assist any third party to build a competitive solution;
      • remove, obscure or alter any proprietary notice related to the Service; or (g) use or permit others to use the Service other than as described in this Agreement, the Policies and Documentation, or for any unlawful purpose.
      In the event CloudQuest believes that you are violating any of the terms set forth in this Section, in addition to any other remedies available at law or in equity, CloudQuest will have the right to suspend your (or any Authorized User's) access to and use of the Service for so long as is reasonably necessary to address such potential violation. CloudQuest shall notify you of any such suspension by email and in advance (except in urgent or emergency situations), and work with you in good faith to resolve the potential violation.
    5. Each Party hereby represents and warrants to the other that the representing Party has the authority to enter into and perform this Agreement, and such Party's entering into this Agreement, and performance of its obligations and exercise of its rights under this Agreement, do not and will not violate any Applicable Laws.
  7. Proprietary Rights
    1. Subject only to the limited rights expressly granted in this Agreement, as between you and CloudQuest, you will retain all right, title and interest in and to the Customer Data and all intellectual property rights therein.
    2. You may provide CloudQuest with bug reports, suggestions or other feedback related to the Service (collectively, “Feedback”). By submitting any such feedback, you hereby assign to CloudQuest all right, title and interest in and to such feedback together with all intellectual property rights therein.
    3. The Service, together with all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, user interfaces, techniques, methods, applications, libraries, documentation or other technology and materials of any kind, or any enhancement thereto, used or made available by CloudQuest to you or any Authorized User in connection with the Service and Support, constitute or otherwise involve valuable intellectual property rights of CloudQuest and all right, title and interest in and to the foregoing will, as between the Parties, be owned by CloudQuest. No title to or ownership of the Service, or any intellectual property rights associated therewith, is transferred under this Agreement and CloudQuest reserves all rights not otherwise expressly granted herein.
    4. CloudQuest shall have the right to reference you as a customer without disclosing the terms of this Agreement. Except as required by law or otherwise set forth in this Agreement, all public announcements regarding the terms of this Agreement shall be coordinated between Cumulus and Licensee by mutual agreement.
  8. Confidentiality
    1. As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, contractors or agents (the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation:
      • information relating to the Discloser's or its Affiliates' technology, customers, business plans, promotional and marketing activities, finances and other business affairs;
      • third-party information that the Discloser is obligated to keep confidential;
      • Customer Data; and
      • the terms of this Agreement.
      However, Confidential Information does not include any information that:
      • was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement;
      • is independently developed by the Recipient without reference to or use of the Discloser's Confidential Information;
      • is acquired by the Recipient from another source without restriction as to use or disclosure; or
      • is or becomes publicly available through no fault or action of the Recipient.
    2. Each Party reserves any and all right, title and interest (including any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other Party under this Agreement. The Recipient shall protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event shall use less than a reasonable standard of care to protect such Confidential Information. The Recipient shall use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit:
      • any use or disclosure which is necessary or appropriate in connection with the Recipient's performance of its obligations or exercise of its rights under this Agreement;
      • any use or disclosure required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or
      • any use or disclosure made with the consent of the Discloser.
      In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations. These obligations of confidentiality shall survive expiration or termination of this Agreement.
  9. Effect of Termination
    Upon expiration or earlier termination of your evaluation use of a Service:
    • all rights granted to you with respect to the Service and Support will terminate effective as of the effective date of termination; and
    • CloudQuest shall have no obligation to provide the Service to you or Authorized Users after the effective date of the termination.
  10. Lawful Conduct

    You shall comply with all applicable local, state, and federal laws and regulations, and, to the extent that you establish offices outside the United States, applicable foreign laws, treaties,regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. The Service is not designed for the transfer or processing of credit card or other sensitive financial information and is not PCI compliant. You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing,

    • You represent that you are not named on any U.S. government list of persons or entities prohibited from receiving exports,
    • You shall not authorize users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and
    • You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its users are located. You will not knowingly send any electronic communication from the Service that is unlawful, harassing, libelous, defamatory or threatening; provided that you have taken commercially reasonable measures to prevent all such occurrences.
    Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT:

    1. THE SERVICE, SUPPORT AND ALL OTHER ITEMS MADE AVAILABLE BY CLOUDQUEST ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. CLOUDQUEST ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (a) ERRORS, MISTAKES OR INACCURACIES OF CUSTOMER DATA OR INFORMATION POSTED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE, (b) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM USE OF THE SERVICE OR SUPPORT, (c) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, OR (d) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY NOT UNDER CLOUDQUEST’S CONTROL.
    2. NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  11. Indemnification
    You agree to defend, indemnify and hold harmless CloudQuest, its affiliates and their respective employees, contractors, agents, officers and directors from and against any and all claims, damages, obligations, losses, liabilities, costs, debt or expenses (including without limitation attorneys' fees) arising out of or related to any claim, suit, action or proceeding by a third party arising out of or relating to Customer Data or your (or an Authorized User's) use of the Service, breach of this Agreement or violation of Applicable Law.
  12. Limitations of Liability.
    1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.2:
      • IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND
      • IN NO EVENT SHALL CLOUDQUEST’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED TWENTY FIVE U.S. DOLLARS. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
    2. The exclusions and limitations in Section 12.1 shall not apply to your indemnification obligations under Section 11, or Losses arising out of a Party's failure to comply with its confidentiality obligations under Section 8.
  13. Modifications

    CloudQuest may modify this Agreement at any time by posting a revised version at www.cloudquest.io/legal/eval-agreement, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted. By using the Service after the date on which any modifications enter into effect, you agree to the latest version of this Agreement.

  14. Miscellaneous
    1. Unless otherwise specifically provided in this Agreement, every notice or other communications required or permitted under this Agreement shall be valid only if in writing and shall be delivered by e-mail, fax, personal delivery; by nationally recognized overnight courier service; or by certified or registered mail, return receipt requested, addressed to the names and addresses of each party set forth on the corresponding order form or similar document
    2. You may not assign, transfer or sublicense all or any of your rights or obligations under this Agreement without CloudQuest's express prior written consent, and any purported assignment in violation of this Section is void. CloudQuest may assign, transfer or sublicense all or any of CloudQuest's rights or obligations under this Agreement without restriction.
    3. In the ordinary course of its business, CloudQuest uses third-party service providers (collectively, “Providers”) to support the provision of the Service and Support generally (i.e., not specifically for you). For instance, CloudQuest currently uses Google Cloud Platform (GCP) to host the Service. In addition, CloudQuest may provide the Service or Support through one or more Affiliates. CloudQuest reserves the right to engage and substitute Providers and Affiliates as it deems appropriate, but shall remain responsible to you for (a) provision of the Service and Support and (b) the actions and omissions of its Providers and Affiliates undertaken in connection with this Agreement.
    4. The Service is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service. If you or any Authorized User is using the Service on behalf of the U.S. Government and these terms fail to meet the U.S. Government's needs or are inconsistent in any respect with federal law, you and your Authorized Users must immediately discontinue use of the Service. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
    5. The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one Party as an employee, agent, joint venture partner or servant of another.
    6. CloudQuest shall have no liability to you, Authorized Users or third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including without limitation acts of God or nature, fires, floods, strikes, civil disturbances or terrorism or interruptions in power, communications, satellites, the Internet or any other network that are beyond its reasonable control.
    7. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in Santa Clara County, California, USA, and the Parties expressly consent to personal jurisdiction and venue in those courts.
    8. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes all proposals, oral or written, and all other communications and agreements between the Parties relating to the subject matter of this Agreement. In the event any information posted on the Site from time to time conflicts with any provision of this Agreement, the applicable provision of this Agreement shall control. Any terms and conditions of any other instrument issued by you in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Additionally, this Agreement supersedes any confidentiality or non-disclosure agreement previously entered into by the Parties with respect your or an Affiliate's evaluation of the Service or otherwise with respect to the Service. This Agreement may be modified only in accordance with Section 13 or by a written instrument duly executed by authorized representatives of the Parties. The failure of CloudQuest to exercise or enforce any condition, term or provision of this Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect.
  15. Definitions

    Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 15.

    1. Acceptable Use Policy means CloudQuest's Acceptable Use Policy currently published at www.cloudquest.io/legal/acceptable-use, as it may be updated from time to time.
    2. Affiliate means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party; “control”(including the terms controlled by” and “under common control with”) means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
    3. “Applicable Laws”means any and all governmental laws, rules, regulations or orders that are applicable to a particular Party's performance under this Agreement.
    4. “Authorized User” means your individual employee, agent or contractor who is authorized by you or the applicable Affiliate to access and use the Service pursuant to the terms of the applicable Order and this Agreement.
    5. “Customer Data” means the data, content and other material that you and/or any Authorized User run on or through the Service, cause to interface with the Service, upload to the Service, or otherwise transfer, process, use or store in connection with the Service. Customer Data does not include User Personal Data.
    6. “Non-CloudQuest Material” means any third-party material identified in an Order, any publicly available client libraries written by third parties to support use of the Service and licensed on an open source basis, and Non-CloudQuest Services.
    7. “Non-CloudQuest Services” means systems, software and hosted services provided by you or by a third party to which the Service supports integrations or other connections.
    8. “Order” means a separate (a) online order for a Service completed and submitted by you through the Site and accepted by CloudQuest, or (b) written order for a Service pursuant to this Agreement executed by both CloudQuest and you.
    9. “Policies” means the Acceptable Use Policy, Privacy Policy and any other policy or terms referenced in, or incorporated into, this Agreement or an Order.
    10. “Privacy Policy” means CloudQuest's Privacy Policy currently published at www.cloudquest.io/legal/privacy as it may be updated from time to time.
    11. “Service” means the subscribed service offering(s) listed in the applicable Order, as such offering(s) are described at cloudquest.io/guardian. The features and functionality of Service may be modified, enhanced or otherwise changed from time to time, provided such change does not result in a material adverse change to the applicable Service (in its entirety) as it existed at the Effective Date.
    12. “Site” means www.cloudquest.io or such alternate or successor website as CloudQuest may designate from time to time.
    13. “User Personal Data” means identifying information relating to Authorized Users, such as name, user name, billing information and email address, furnished by you or Authorized Users to CloudQuest in connection with their access and use of the Service.