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TERMS OF SERVICE - DaaS

HORIZON AIR DESKTOPS

 By accessing the Cirrus hosted service specified in your Order (the “Service Offering”), you agree to be bound by these terms of service between you and Cirrus (“Agreement”). This Agreement also includes the applicable Service Description, Third Party Terms, Support Policy, and Service Level Agreement. If you do not agree to this Agreement, you must not access the Service Offering. “You” means you individually or the entity that you represent. If you are entering into this Agreement for an entity, you represent to us that you have legal authority to bind that entity. “ Cirrus,” “ we,” or “ us” means Cirrus Dynamics, a Canadian corporation, to the extent that you purchase the Service Offering in Canada,  and Cirrus Dynamics Ltd., a company organized and existing under the laws of Bermuda, to the extent that you purchase the Service Offering elsewhere. Capitalized terms used in this Agreement are defined throughout this Agreement and in Section 1.

 

1.  DEFINITIONS.

1.1   "Administration Data"  means data collected, accessed or used by Cirrus as part of regular operation in order to provide the Service Offering. Administration Data can include login attempts, login credentials, the device or platform type used to access the virtual desktops, public Internet Protocol address, MAC Address of the client, the number of desktops deployed in the instance of the Service Offering, the operating systems used by each desktop, the anonymous desktop pool ID accessed by each user, the total number of Authorized Users accessing the Service Offering, and the state of each desktop. Administration Data does not include Customer Content or any files or data uploaded by you or your Authorized Users into applications in your instances of the Service Offering.

1.2   "Agreement"  means this agreement between you and Cirrus which establishes certain of the terms and conditions under which Cirrus will provide and you will receive one or more services.

1.3   "Authorized Users"  means any individual who accesses or uses the Services under your Login Credentials, including any individual with administrator privileges. By using the Service Offering, Authorized Users represent and warrant that they are subject to the terms of this Agreement.

1.4   "Business Day"  means 9.00am to 5.00pm Monday to Friday excluding Saturday, Sunday and public holidays.

1.5  “Confidential Information”  means non-public technical, business or other information or materials disclosed or otherwise made available by one party in connection with the Service Offering that are in tangible form and labeled “confidential” or the like, or are provided under circumstances reasonably indicating their confidentiality. Our Confidential Information includes: (1) Login Credentials; and (2) any information or materials relating to the Service Offering.

1.6   Customer Content  means any and all applications, files, information, data or other content uploaded to or published or displayed through the Service Offering by you, Authorized Users, or any third party users who access any service you provide.

1.7   Documentation   means documents, whether in printed or electronic form, and includes all enhancements and modifications to the same.

1.8   "Infringement Claim"  means any third party claim that any VMware Software used to provide the Service Offering infringes any patent, trademark or copyright of the third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of your actions) under the laws of: (a) the United States and Canada; (b) the European Economic Area; (c) Australia; (d) New Zealand; (e) Japan; or (f) the People’s Republic of China, to the extent that those countries are places of use of the Service Offering.

1.9   "Intellectual Property Rights"  means intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, patent rights (including patent applications and disclosures), know-how, rights of priority, trademark rights, and trade secret rights recognized in any country or jurisdiction in the world.

1.10  "Login Credentials"  means any passwords, authentication keys, customer-specific Services management URL, or security credentials that enable you and your Authorized Users access to, and management of, the Service Offering.

1.11  "Order" means the internet order page, or other ordering document, that specifies your purchase of the Service Offering.

1.12  "Party in respect of this Agreement" means You or Cirrus, and "Parties" means both.

1.13  "Service Description"  means the then-current version of the Service Offering Service Description document available at https://support.cirrusdynamics.com/hc/en-us/articles/218361187-Service-Description, which contains technical and other information, which we may modify from time to time.

1.14  "Service Level Agreement"  means the then-current version of the Service Offering Service Level Agreement document available at https://support.cirrusdynamics.com/hc/en-us/articles/218361897-Service-Level-Agreement, which we may modify from time to time.

1.15  "Software"  means software specifically used to provide the Service Offering.

1.16  "Subscription Term" means the time period of your access to the Services, as specified in your Order.

1.17  "Support Services" means the then-current version of the Service Offering Support Policy document available at https://support.cirrusdynamics.com/hc/en-us/articles/217799818-Support-Policies-DaaS, which we may modify from time to time.

1.18  "Third Party Content"  means third party data, service, content, software or applications licensed by you for use with the Service Offering.

1.19  "Updates"  means modifications, corrections, upgrades and enhancements to the Services that Cirrus generally provides to you as a part of their Support Services.  

 

2. The Service Offering.

2.1  Generally.   This Agreement governs your access and use of the Service Offering. Cirrus may deliver the Service Offering to you with the assistance of our affiliates, licensors and providers. You will comply with all laws, rules and regulations applicable to use of the Service Offering.  You also will comply with the applicable Third Party Terms, Service Description and Support Policy.

2.2  Access to the Service Offering.   You may access and use the Service Offering solely for your own benefit and only in accordance with this Agreement. You may use the Service Offering for single concurrent user desktop use, domain control, and file services. You may use the Service Offering for the number of desktops specified in your Order. You must keep your Login Credentials confidential. If you set up an authorized account for an organization, you will require that all Authorized Users of that account (including anyone providing services to said users) keep confidential their Login Credentials. You are responsible for any use that occurs under your Login Credentials, including any activities by your Authorized Users, employees, contractors or agents. If you believe an unauthorized user has gained access to your Login Credentials, you must notify Cirrus as soon as possible. Neither Cirrus nor our affiliates are responsible for any unauthorized access to or use of your account.

2.3  Verifying; Cooperation.   Cirrus reserves the right to verify your compliance with this Agreement. If Cirrus choose to verify, you will provide information or other materials reasonably requested by Cirrus. Cirrus monitors the overall performance and stability of the infrastructure of the Services. You may not block or interfere with that monitoring. In the event that Cirrus reasonably believes a problem with the Services may be attributable to your use or Customer Content, you will cooperate with Cirrus to identify the source of that problem.

2.4  Third Party Terms;   As part of your use of the Service Offering, you may purchase, download or deploy third party products (including applications and application templates) (the “Third Party Products”) subject to separate terms. If so, those separate terms will prevail over this Agreement as to your use of the Third Party Products. You are responsible for reviewing, accepting, and complying with any third party terms of use or other restrictions applicable to the Third Party Products. Cirrus may provide billing and related services associated with the Third Party Products. Cirrus will not provide any support for the Third Party Products unless otherwise noted in special third party terms. Cirrus disclaim all express and implied warranties (including warranties of merchantability, fitness for a particular purpose, and non-infringement) for any Third Party Products. Cirrus reserves the right to suspend or terminate Third Party Products at any time, but will use commercially reasonable efforts to provide reasonable notice of that suspension or termination.

2.5  Administration Data.   Cirrus may collect Administration Data. Cirrus may access and use Administration Data in order to: provide the Service Offering (including tracking and managing our infrastructure, network, storage, and software for billing, capacity planning, troubleshooting, and other forecasting and improvement purposes), maintain the security of the Services, provide support, and perform or enforce contractual obligations.

 

3. Acceptable Use.

3.1 Content.   You are solely responsible for Customer Content.  Cirrus may access and use Customer Content only as necessary to provide the Service Offering (which Cirrus may do with the assistance of affiliates, service providers and contractors), perform or enforce contractual obligations, or comply with applicable law.

3.2  Security.  Cirrus will maintain appropriate administrative, physical, and technical safeguards for protection of the physical facilities, and those servers and networking equipment over which they have administrator access or control and use to provide the Service Offering.  You are responsible for protecting the security of Customer Content, including any access provided to Customer Content by their Authorized Users, employees, customers or other third parties, and in transit to and from the Service Offering.  The Service Offering provides you with certain software and functionality to help protect Customer Content from unauthorized access. You will properly configure and use the Service Offering so that it is suitable for your use.  You will take and maintain appropriate security, protection and backup of Customer Content, which might include the use of encryption technology to protect Customer Content from unauthorized access. You are responsible for providing any necessary notices to your Authorized Users and obtaining any legally-required consents from Authorized Users concerning their use of the Service Offering.  You are solely responsible for complying with any laws or regulations that might apply to Customer Content. You are responsible for any losses or other consequences arising from your failure to encrypt or back up Customer Content.

3.3  No Additional Representations or Warranties.  You shall not make any representations, warranties, or other statements regarding the Service Offering to any third party other than those consistent with the Documentation supplied by Cirrus with the Service Offering.

3.4  Support Services and Technical Support.  You will designate a limited number of named Authorized Support Contacts who are qualified and authorized to contact Cirrus for technical assistance. These may include administrators, project managers, help desk personnel, who have been trained in using the Service Offering. Furthermore, You will adhere to the support terms and conditions set forth in the Support Policy and Service Level Agreement.

3.5 Training.  You shall use best commercially reasonable efforts to ensure that at least two (2) technical members of your organization, have completed a Cirrus’ Enterprise Center and Desktop Portal walkthrough. Failure to do so may lead to a breach of the Support Policy and result in additional costs.

3.6 General Restrictions.  You and or your Authorized Users will not, and will not permit any third party, to, as solely determined by Cirrus: (a) use the Service Offering to violate or encourage the violation of the rights of others (including Intellectual Property Rights); (b) use the Service Offering to engage in, advertise or deliver pornographic or illegal activities; (c) circumvent or violate the restrictions of the Service Offering as described in this Agreement; (d) reverse engineer, or otherwise attempt to derive source code from the Service Offering, unless VMware makes the source code publicly available; (e) disable, interfere with, disrupt, or circumvent any aspect of the Service Offering, including the integrity or performance of the Service Offering, or third-party content or data provided through the Service Offering; (f) access or use the Service Offering in a way intended to avoid recurring fees or exceeding usage limits; or (g) resell or sublicense the Service Offering. You must ensure that your Authorized Users comply with the terms of this Agreement, and you agree that if you become aware of any violation by one of your Authorized Users, you will terminate that Authorized User’s access to Customer Content immediately. If Cirrus have reason to believe that you or your Authorized Users have breached this Agreement, Cirrus or our designated agent may review your use of the Service Offering to verify compliance with this Agreement.

3.7  Content Restrictions.  You will take steps to ensure that your Authorized Users and third party users who access any service they provide with the Service Offering do not post content that: (a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; (b) may create a risk of any other loss or damage to any person or property; (c) may constitute or contribute to a crime or tort; (d) contains any information or content that is illegal, unlawful, harmful, abusive, pornographic, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; or (e) contains any information or content that the you do not have a right to make available under any law or under contractual or fiduciary relationships. You are solely responsible for any software, product or service that a third party licenses, sells or makes available to you that you or your Authorized Users install or use with the Service Offering. You and your Authorized Users’ use of that software, product or service is governed by separate terms between you and that third party, and you are responsible for adhering to those separate terms. Cirrus are not a party to and are not bound by any of those separate terms.

3.8  Notification of Infringement Concerns.  If you believe that your copyrighted work has been copied and is accessible on Cirrus’ Service Offering in a way that constitutes copyright infringement, please send a notice to Cirrus with a description of the copyrighted work that you claim has been infringed and a description of the infringing activity.

 

4. PAYMENT and TAXES.

4.1 Invoicing and Payment Terms.  You will pay all fees for use of the Service Offering in the amount and currency specified in your invoice, within 30 days after the date of the invoice, and regardless of your usage level during a billing period. You will also be responsible for all additional fees for any subscription renewals, additional desktops, metered usage components consumed, and other subscriptions, features, products, services or add-ons that you purchase within the Service Offering. You will be billed in advance for the monthly or prepaid charges due to the subscription services purchased. Any metered usage components and any initial monthly fees will be billed in arrears. The applicable fees for subscriptions (including renewals), features and other available products and services will be governed by the then-current applicable price list at the time the initial, renewal, or add-on order is submitted, or as otherwise agreed.

4.2 Taxes.   Services fees are exclusive of taxes, and you shall pay or reimburse for all taxes arising out of transactions contemplated by this Agreement. If you are required to pay or withhold any tax for payments due under this Agreement, you shall gross your payments to Cirrus so we receive sums due in full and free of any deductions. “Taxes” means any sales, VAT, use, gross receipts, business and occupation, and other taxes (other than taxes on income), export and import fees, customs duties and similar charges imposed by any government or other authority. You hereby confirm that Cirrus can rely on the name and address provided to us when agreeing to the Service Offering or in connection with your payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where you have established your business.

 

5. INTELLECTUAL PROPERTY OWNERSHIP.

5.1 Ownership of Service Offering and Software.  Cirrus and our licensors own and retain all right, title and interest in and to the Service Offering and any related Software, including all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein. This includes any information that we collect and analyze in connection with the Service Offering, such as usage patterns, user feedback and other information to improve and evolve our software products and Services. Your rights to use the Service Offering are limited to those expressly granted in this Agreement. No other rights with respect to the Service Offering, any related Software, or any related Intellectual Property Rights are implied.

5.2 Ownership of Customer Content.  You and your Authorized Users retain all right, title and interest in and to Customer Content and all Intellectual Property Rights therein. Cirrus' rights to access and use Customer Content are limited to those expressly granted in this Agreement. No other rights with respect to customer Content or any related Intellectual Property Rights are implied

 

6.  TEMPORARY SUSPENSION.

6.1 Generally.  Upon prior written notice to you, Cirrus may suspend their use of the Service Offering if they reasonably determine: (a) payment for the Service Offering is not received within 30 days from the date on which payment is due; (b) you or your use (including the use of their Authorized Users) of the Service Offering is in breach of this Agreement; (c) your use (including the use of their Authorized Users) of the Service Offering poses a security risk to the Service Offering or other users of the Service Offering; or (d) suspension is required pursuant to Cirrus' receipt of a subpoena or other request by a law enforcement agency.

6.2 Effect of Suspension.  You will remain responsible for all fees incurred before or during the suspension. You will not be entitled to any service credits under the Service Level Agreement that you might have otherwise accrued during the period of suspension.

 

7.   TERM AND TERMINATION.

7.1 Term of Agreement.  This Agreement will be in effect until it is terminated as permitted herein or under the Service Description. For Subscription-based Service Offerings, the Subscription Term will automatically renew as specified in the Service Description, unless terminated as permitted therein.

7.2 Term Renewal.  Cirrus reserves the right to not renew Service Offerings at the end of the Subscription Term. In the event of a non-renewal, Cirrus will notify you thirty (30) days prior to the end of the Subscription Term.  

Except as set forth in this Section 7.2, each Service Offering will automatically renew using the current configuration and the existing Service term length. The then-current Service Offering and pricing, based on the applicable price list, will be applied to such renewal term. You may opt-out of auto-renewal by notifying Cirrus of non-renewal thirty (30) days prior to the last day of the current Subscription Term.

7.4 Termination for Cause.  Cirrus may terminate this Agreement effective immediately by sending you an email notice if: (a) you breach any provision in Sections 3.6 or 3.7; (b) you do not resolve the underlying cause (other than a subpoena or request by law enforcement) resulting in the suspension of your account within 10 days after your account is suspended; or (c) you commit a material breach that cannot be cured.

7.5 Termination for Insolvency.  Cirrus may terminate this Agreement effective immediately upon sending you an email notice if you: (a) terminate or suspend your business; (b) become insolvent, admit in writing your inability to pay your debts as they mature, make an assignment for the benefit of creditors; or (c) become subject to control of a trustee, receiver or similar authority or any bankruptcy or insolvency proceeding.

7.6 Effect of Termination.  Upon the termination of this Agreement for any reason: (a) all rights granted to you under this Agreement, including your ability to access any Customer Content stored in the Service Offering, will immediately terminate; and (b) you must promptly discontinue all use of the Service Offering and delete or destroy any of Cirrus' Confidential Information. For a period of 30 days following the termination, Cirrus will not delete Customer Content as a result of this termination, although you will cease to have access to the Service Offering or Customer Content stored in the Service Offering during this period. Sections 1 (Definitions), 4 (Payment, and Taxes), 5 (IP Ownership), 7 (Term and Termination), 9 (No Warranties), 11 (Limitation of Liability), 12 (Confidential Information), 13 (General), will survive the termination of this Agreement. Termination of the Services (except to the extent that the termination is permitted under Section 13.5 of this Agreement) will not entitle you to any refunds, credits, or exchanges, and you will be liable for all monthly billing fees for the remainder of the Subscription Term after termination, as well as all usage and other fees incurred up to the termination date.

 

8. SUPPORT AND SUBSCRIPTION SERVICES

. When applicable, and subject to the terms of this Agreement, Cirrus will provide you with support for the Service Offering in accordance with the then-current version of the Service Offering Support Policy document available at https://support.cirrusdynamics.com/hc/en-us/articles/217799818-Desktops-as-a-Service-Support-Policies, which we may modify from time to time. 

 

9. NO WARRANTIES.

 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CIRRUS AND OUR LICENSORS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE REGARDING OR RELATING TO THE SERVICES, THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. WE AND OUR LICENSORS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE SERVICE OFFERING WILL BE UNINTERRUPTED OR FREE FROM DEFECTS, OR THAT THE SERVICE OFFERING WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.

 

10. INDEMNIFICATION.

10.1 Indemnification by Customer.  You will defend and indemnify Cirrus and or its licensors against any third party claim arising from or relating to: (a) Customer Content; (b) any infringement or misappropriation of any Intellectual Property Rights by you , your Authorized Users, your customers, their end users or their suppliers; (c) violation of law by you ; (d) your use of the Service Offering (including any activities under your account and any use by your Authorized Users, employees, personnel or end users) in violation of this Agreement, or (e) your use of any Third Party Content. Cirrus will (a) provide you with notice of the claim within a reasonable period of time after learning of the claim; and (b) reasonably cooperate in response to your requests for assistance. You may not settle or compromise any indemnified claim without Cirrus' prior written consent.

10.2 Defense and Indemnification.  Subject to the remainder of this Section 10, Cirrus will defend you against an Infringement Claim and indemnify you from the resulting costs and damages finally awarded against you to that third party by a court of competent jurisdiction or agreed to in settlement. You will (a) provide Cirrus with notice of any Infringement Claim within a reasonable period of time after learning of it; (b) allow Cirrus and or its licensors sole control over the claim’s defense and settlement; and (c) reasonably cooperate in response to requests for assistance. You may not settle or compromise any Infringement Claim without Cirrus’ prior written consent.

10.3 Remedies.  If the Services become, or in Cirrus’ opinion are likely to become, the subject of an Infringement Claim, Cirrus will at our option and expense either: (a) procure the rights necessary for you to keep using the Service Offering; (b) modify or replace the Service Offering to make it non-infringing; or (c) terminate this Agreement and refund any pre-paid fees for the Service Offering pro-rated for its remaining Subscription Term.

10.4   Exclusions.  Cirrus will have no obligation under this Section 10 or otherwise with respect to any claim based on: (a) a combination of the Software with non-VMware products or content, including Customer Content; (b) use of the Service Offering for a purpose or in a manner not specified in this Agreement or the Service Description; (c) any modification to the Service Offering made without Cirrus’ express written approval; or (d) any Service Offering provided on a no charge basis. This Section 10 states you exclusive remedy for any infringement claims or actions.

 

11. LIMITATION OF LIABILITY.

11.1   Generally.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL CIRRUS OR OUR LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. IN ADDITION, OUR AND OUR LICENSORS’ AND SERVICE PROVIDERS’ LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID TO CIRRUS FOR YOUR ACCESS TO AND USE OF THE SERVICE OFFERING IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM REGARDLESS OF WHETHER CIRRUS OR OUR LICENSORS OR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY IN THIS SECTION 11.1 WILL NOT APPLY TO (A) CIRRUS’ INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT OR (B) ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY APPLICABLE LAW.

11.2   Further Limitations.  Cirrus’ licensors and service providers will have no liability of any kind under this Agreement. You may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises.

 

12. CONFIDENTIAL INFORMATION.

12.1   Protection.  A Party may use Confidential Information of the other Party solely to exercise its rights and perform its obligations under this Agreement or as otherwise permitted under this Agreement. Each Party will disclose the Confidential Information of the other Party only to the employees, service providers or contractors of the recipient Party who have a need to know the Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than each Party’s duty hereunder. Each Party will use reasonable care to protect the confidentiality of the other Party’s Confidential Information.

12.2   Exceptions.  The recipient’s obligations under Section 12.1 with respect to any Confidential Information will terminate if the recipient can show by written records that the information: (a) was already known to the recipient at the time of disclosure by the other Party; (b) was disclosed to the recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (c) is, or through no fault of the recipient has become, generally available to the public; or (d) was independently developed by the recipient without access to, or use of, discloser’s Confidential Information. The recipient may disclose Confidential Information to the extent the disclosure is required by law or regulation. The recipient will provide the other Party notice, when practicable, and will take reasonable steps to contest and limit the scope of any required disclosure.

 

13. GENERAL.

13.1 Force Majeure.  In the event that Cirrus’ performance is delayed, prevented, obstructed, or inhibited because of any Act of God, fire, casualty, delay or disruption in transportation, flood, war, strike, lockout, epidemic, destruction or shut-down of production facilities, shortage or curtailment, riot, insurrection, governmental acts or directives, or any other cause beyond the reasonable control of Cirrus, including financial requirements or manufacturing limitations imposed by third-party manufacturers, suppliers, or vendors, Cirrus may give notice to you, via email or in writing, and thereupon Cirrus’ performance shall be excused and the time for the performance shall be extended for the period of delay or inability to perform resulting from such occurrence.  The occurrence of such an event shall not constitute grounds for default under this Agreement.

13.2 Notices.  Any notice delivered by Cirrus to you under this Agreement will be delivered by email to the email address associated with your Service Offering, except as otherwise set forth in this Agreement. Legal notices or other correspondence shall be in writing and deemed given (i) upon delivery, if delivered in person or by prepaid telegraph, (ii) five (5) business days after mailing if sent registered mail, return receipt requested, or (iii) the next business day after sending, if sent by commercial overnight courier (unless returned undelivered or the courier reports a later delivery).  Notices shall be addressed to each party at its business address, or such other address as the recipient may have specified by earlier notice to the sender.

13.3 Assignment; Successors.  This Agreement shall not be assigned by either party without the advance written consent of the other party; provided, however that either party may assign this Agreement without consent to its successor in a merger, acquisition or other consolidation, including without limitation any sale of all or substantially all of a party’s assets or stock.  This Agreement shall be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.  Any assignment in contravention of this section shall be void and of no effect.

13.4 Governing Law; Jurisdiction.  This Agreement is governed by the laws of Bermuda (excluding its conflict of law rules), except as follows: for Service Offering purchases where you choose a data center that is outside of Bermuda, the governing laws are those of the country in which the data center is located (excluding its conflict of law rules). This Agreement does not affect your statutory rights that cannot be waived or changed by contract.

13.5 Amendments.  No amendment to this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each Party.  The term "Agreement", as used herein, includes any addendum, policies or other documents referenced, and all future written amendments, modifications, or supplements made in accordance herewith. Cirrus may change periodically the Service Offering, the terms of the Customer’s access to the Service Offering, this Agreement, the Service Description, the Service Level Agreement, or the Support Policy. Cirrus will notify you of any material, detrimental change to this Agreement, the Service Description, the Service Level Agreement, or the Support Policy. The modified Agreement, Service Description, Service Level Agreement, or Support Policy, as applicable, will become effective as of the date stated in that notification. If we make a material, detrimental change to the Services (other than the termination or modification of any beta feature or functionality), this Agreement, the Service Description, the Service Level Agreement, or the Support Policy, then the Customer  may terminate this Agreement within thirty (30) days of the change or within thirty (30) days of the notification. In that event, the termination will be effective as of the date we receive your notification, unless you state an effective date in your notification that is within forty five (45) days after Cirrus receives their notification. In the event of that termination, Cirrus will refund any prepaid fees, pro-rated for the remainder of the Subscription Term, and less any discounts that would then not be earned. Your continued use of the Service Offering after the effective date of any modification to the Agreement, the Service Description, the Service Level Agreement, or the Support Policy will be deemed acceptance of the modified terms, as applicable.

13.6 Headings Not Controlling.  Headings used in this Agreement are for reference only and shall not be deemed a part of this Agreement.

13.7 Severability.  If any provision of this Agreement is held to be invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remaining provisions of this Agreement will remain in force.

13.8 Independent Contractor. Nothing contained in this Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party without the prior written consent of the other Party.  This Agreement shall not constitute a partnership, joint venture, or any other form of legal entity or business enterprise.

13.9 Survival. The terms and provisions contained in this Agreement that by their sense and context are intended to survive the performance thereof by the Parties hereto shall so survive the completion of performance and termination of this Agreement, including, without limitation, provisions for indemnification and the making of any and all payments due hereunder.

13.10 Exclusivity.  Neither Party is bound by any exclusivity to the other under this Agreement.

13.11 Waiver. The waiver of a breach of any provision of this Agreement will not constitute a waiver of any other provision or any later breach.

13.12 Entire Agreement.  This Agreement, as it may be revised by Cirrus, constitutes the entire Agreement between the parties with respect to its subject matter; except as provided herein, all other prior agreements, representations, statements, negotiations and undertakings are terminated and superseded hereby.

 

 

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