Incredibuild Cloud Service Agreement

PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCEPTING THESE TERMS AND REGISTERING FOR, ACCESSING AND/OR USING THE INCREDIBUILD CLOUD SERVICE (“SERVICE”). 

By clicking the Accept or OK button, or installing, accessing and/or using the Service you expressly acknowledge and agree that you are entering into a legal agreement with IncrediBuild Software Ltd. (“Company”, “we”, “us” or “our”), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this Cloud Service Agreement (“Agreement”). This Agreement is in addition to and supplements the Company’s End User License Agreement (“EULA“), that you have already agreed to and that governs the use of the Software (as defined therein), available here: https://www.incredibuild.com/eula.html. To the maximum extent permitted by applicable law, You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records. If you do not agree to be bound by this Agreement, please do not download, install, access or use the Service. You and the Company shall referred each as a “Party” and collectively, the “Parties”.

  1. Cloud Partner Terms.
    This Agreement is entered into between the Parties in connection with the Service. The Parties acknowledge that the Service is provided on a cloud (“Cloud Services”) that You have purchased from our authorized third party cloud partners (“Cloud Partners”) and is subject to the terms and conditions between You and the relevant Cloud Partner (“Cloud Partner Terms”). All the terms and conditions specified in the Cloud Partner Terms between You and the Cloud Partner are binding and You acknowledge and agree to comply with them. You acknowledge and agree that the Cloud Partner Terms are concluded between the Cloud Partner and You only, and not with Company. Notwithstanding anything to the contrary, to the extent there is any conflict between this Agreement and the Cloud Partner Terms, this Agreement shall prevail to the extent related to the Service and the Cloud Partner Terms shall prevail to the extent related to the Cloud Services. Any rights granted to You in such Cloud Partner Terms which are not contained in this Agreement, apply only in connection with the Cloud Partner and You must seek redress or realization or enforcement of such rights solely with the Cloud Partner and not the Company.
  2. Support , Maintenance and Availability.
    Support and maintenance services related to the Cloud Services are provided according to the Cloud Partner You have chosen as follows: (a) if Microsoft Azure (“Azure”) is Your Cloud Partner, support and maintenance services, for the Cloud Services you contracted with the Cloud Partner, are provided by Azure subject to the Service Level Agreement (“SLA”) available at Azure support; (b) if Amazon Web Services (“AWS”) is Your Cloud Partner support and maintenance services, for the Cloud Services you contracted with the Cloud Partner, are provided by AWS subject to the AWS Cloud Partner Terms (“SLA”) available on AWS website. If, on the other hand, the support and maintenance relate to the Services, they will be provided by the Company in accordance with Section 5 (Support) of the EULA. You hereby acknowledge that the Cloud Partner, and not us, is responsible for the availability of the Cloud Services and for all other aspects of the Cloud Services. Support and maintenance services related to the Service itself are provided by the Company as set forth in the EULA.
  3. Payment.
    Your usage of the Service is conditioned on Your payment of the applicable fees which are set forth in: (a) the Cloud Partner Terms of your respective Cloud Partner; and  (b) a purchase order provided to you by Company, for the Services provided by Company. You hereby agree to and hereby release and forever discharge the Company and its respective assigns from all claims, demands or damages arising out of or in any way related to any fee or amount, including, without limitation, taxes, billing, payments, processing, invoices, charged or overcharged by the Cloud Provider and any other issue or dispute relating thereto.
  4. Account, Data and Analytics Information.
    The Service may only be used through an account (the“Account”). Such Account may be accessed solely by You or service providers who are explicitly authorized by You to use the Service (each, a “Permitted User”). You will ensure that the Permitted Users keep the Account login details secure at all times and comply with the terms of this Agreement; and You will be fully responsible and liable for any breach of this Agreement by a Permitted User and for all activities performed by Permitted Users in relation to the Account. Unauthorized access or use of the Account or the Service must be immediately reported to the Company. Once an Account is created, You hereby grant Company permission to: (i) create an Azure Resource Group or AWS Virtual Private Cloud (as applicable) that is linked to Your Account; and (ii) to manage such Azure Resource Group or AWS Virtual Private Cloud (as applicable) on Your behalf. You agree that You shall not make any modifications to the Azure Resource Group or AWS Virtual Private Cloud (as applicable) and Company has no responsibility or liability for any such modifications made by You or a Permitted User.Upon registration to use the Service, Company may request that you provide, inter alia, contact information, full name, organization name, phone number and a valid email address. We use this information to provide you with access to the Service and to contact you to provide you with important information, software updates, required product and service update notices and marketing promotions. We also reserve the right to use your name and logo to present you as a customer on our website and other social media advertising or marketing promotions we make from time to time. In addition, any anonymous information, which is derived from the use of the Service (i.e., metadata, aggregated and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used by Company for providing or improving the Service, for development, and/or for statistical purposes. Such Analytics Information is the Company’s exclusive property.If You need a Data Processing Agreement (“DPA”), to the maximum extent permitted by law, it is Your responsibility to contact the Company to obtain the Company’s DPA and to return it signed to the Company as described therein.  In the event You fail to comply with any applicable data protection or privacy law or regulation and/or any provision of the DPA, and/or if You fails to return an executed version of the DPA to Company and/or decide to not execute a DPA when required by any law or regulation, then: (a) to the maximum extent permitted by law, You shall be solely and fully responsible and liable for any such breach, violation, infringement and/or processing of personal data without a DPA; (b) in the event of any claim of any kind related to any such breach, violation or infringement and/or any claim related to processing of personal data without a DPA, You shall defend, hold harmless and indemnify Company including its affiliates and subsidiaries (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees; and (c) no cap on liability shall apply in connection with this Section.For those using Microsot Azure as their Could Partner, the following shall apply in addition to all that is specified in this Section 4: 

    • Notification for Resource Manager template deployments
      When Incredibuild Cloud deploy Azure resources, Microsoft can identify the installation of Incredibuild software with the deployed Azure resources. Microsoft can correlate these resources used to support the software. Microsoft collects this information to provide the best experiences with their products and to operate their business. The data is collected and governed by Microsoft’s privacy policies, located at https://www.microsoft.com/trustcenter. 
    • Notification for SDK or API deployments
      When Incredibuild Cloud deploy Azure resources, Microsoft can identify the installation of Incredibuild software with the deployed Azure resources. Microsoft can correlate these resources used to support the software. Microsoft collects this information to provide the best experiences with their products and to operate their business. The data is collected and governed by Microsoft’s privacy policies, located at https://www.microsoft.com/trustcenter.

For the full text please go to: https://docs.microsoft.com/en-us/azure/marketplace/azure-partner-customer-usage-attribution

  1. Prohibited Uses.
    The prohibited uses set out in the EULA shall also apply to the Service.
  2. Warranties.
    Each Party represents, warrants and covenants that it is duly organized and shall remain duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law. You hereby warrant, represent and, to the extent relevant, covenant, that, You shall comply at all times with all applicable laws including, without limitation, privacy laws and You will not violate any third party right.
     
  3. Feedback.
    If Company receives any feedback (e.g., questions, comments, suggestions or the like) regarding any of the Service (collectively, “Feedback”), all rights, including intellectual property rights, in such Feedback shall belong exclusively to Company and such shall be considered Company’s Confidential Information. You hereby irrevocably and unconditionally transfer and assign to Company all intellectual property rights You may have in such Feedback and waive any and all moral or other rights that you may have in respect thereto. The Company shall be entitled to use any Feedback without restriction or limitation at its sole discretion. All intellectual property rights and/or other rights not explicitly granted herein are reserved.
  4. DISCLAIMER. LIMITATION OF LIABILITY.
    EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. COMPANY DOES NOT CONTROL, AND IS NOT RESPONSIBLE FOR, THE CLOUD SERVICES OR THE CLOUD PARTNERS’ OR ANY THIRD PARTY’S ACTS OR OMISSIONS, AND SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DEGRADATION OF THE CLOUD SERVICES OR THE CLOUD PROVIDER OR ANY THIRD PARTY BEYOND COMPANY’S REASONABLE CONTROL. THE INDEPENDENT MODIFICATION OF THE CLOUD PARTNER TERMS AND/OR CLOUD SERVICES COULD ADVERSELY IMPACT THE FUNCTIONALITY OR QUALITY OF SERVICE PROVIDED THROUGH OR BY COMPANY WHICH DEPEND ON SUCH CLOUD SERVICES, AND COMPANY SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY (INCLUDING TO PROVIDE ANY REFUNDS) IF SUCH ADVERSE IMPACT OCCURS.THE PARTIES AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) COMPANY IS MERELY THE FACILITATOR OF THE CLOUD SERVICES AND IS NOT PROVIDING THE CLOUD SERVICES ITSELF; (B) EXCEPT FOR THE FACILITATION OF PAYMENT IF YOU ARE USING AWS AS YOUR CLOUD PROVIDER, COMPANY BEARS NO RESPONSIBILITY OR LIABILITY OF ANY KIND IN RELATION TO THE CLOUD SERVICES AND/OR ANY OTHER THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, IN RELATION TO ANY DISPUTES BETWEEN YOU AND THE CLOUD PROVIDER AND/OR SUCH THIRD PARTIES; (C) IN RESPECT OF: (I) THE SERVICE; AND (II) THE FACILITATION OF PAYMENT IF YOU ARE USING AWS AS YOUR CLOUD PROVIDER, COMPANY’S MAXIMUM LIABILITY OF ANY TYPE FOR ANY REASON SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. 
  5. Term and Termination. Consequences of Termination.
    This Agreement shall be effective until the earlier of: (i) termination or expiration of the Cloud Services in accordance with the Cloud Partner Services; or (ii) termination or expiration of Your license to the Software under the EULA; or (iii) termination in accordance with this Agreement.Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof. You shall not be entitled to any refunds of prepaid amounts upon termination.Upon termination or expiration of this Agreement: (i) the Service shall expire, and you shall discontinue any further use and access thereof; (ii) Company shall immediately delete Your Azure Resource Group or AWS Virtual Private Cloud (as applicable), including the entire contents of Your Azure Resource Group or AWS Virtual Private Cloud (as applicable). Notwithstanding anything to the contrary, it is Your sole responsibility to check and verify that the entire contents of Your Azure Resource Group or AWS Virtual Private Cloud (as applicable)  have been deleted and to remove the permission that You provided to Company to manage Your Azure Resource Group or AWS Virtual Private Cloud (as applicable) under Section ‎4 above. Company is not responsible for any costs that may arise if any of the resources in Your Azure Resource Group or AWS Virtual Private Cloud (as applicable) are not deleted. If applicable, You shall be responsible for downloading Your data prior to termination of this Agreement. 

    Sections ‎1 (Cloud Partner Terms), ‎4 (Account, Data and Analytics Information), ‎5 (Prohibited Use), ‎7 (Feedback), ‎8 (Disclaimer. Limitation of Liability), ‎9 (Consequences of Termination) and ‎10 (Miscellaneous) shall survive the termination or expiration of this Agreement for any reason whatsoever.
      

  6. Miscellaneous.
    This Agreement, including the incorporated terms, represents the complete agreement concerning the subject matter hereof. Company reserves the right to modify this Agreement at any time by sending you a notification and/or publishing the revised Agreement on Company’s website.  Such change will be effective ten (10) days following the foregoing notification thereof. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. You may not assign your rights or obligations under this Agreement without the prior written consent of the Company. Company may assign in whole or in part this Agreement and/or its rights and/or obligation hereunder to any third party without any limitation or restriction of any kind. This Agreement shall be governed by and construed under the laws of the Israel, without reference to principles and laws relating to the conflict of laws. The competent courts of Israel shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. The Company will not be liable for any delay or failure to provide the Service resulting from circumstances or causes beyond the reasonable control of the Company.