Welcome to the Incredibuild Cloud Program!
These Incredibuild Cloud Trial Program Terms and Conditions (the “Terms”) set forth the terms and conditions governing your participation in the free trial operating under a specific Incredibuild Cloud Program (“Program”). By agreeing to these Terms, or by otherwise participating in the Program, you are becoming a member of the Program (a “User”), and you are agreeing to be bound by these Terms, which constitute a binding agreement between you and Incredibuild Ltd. (“Incredibuild”, “we”, “us”, and “our”).
References herein to “you” and “your” means, either:
(a) you in your individual capacity (in which case, you represent and warrant that you are at least 18 years of age, and in any event the age of majority in your jurisdiction); or
(b) if authorized to do so, the organization you represent (in which case, you represent and warrant that you have the authority to enter into this agreement on such organization’s behalf).
These Terms will continue to apply to you for as long as your User membership remains in effect (although note that some of the provisions below will continue to survive after termination).
The Program is operated by Incredibuild. However, any Incredibuild’s obligations may be performed, and any Incredibuild right or remedy may be exercised, under these Terms by a corporate subsidiary or affiliate of Incredibuild (each, an “Affiliate”). Accordingly, references herein to “Incredibuild” shall also be deemed to extend to such Affiliates.
Incredibuild has no obligation to monitor the Program or any communications or actions therein; however, Incredibuild may, in its sole discretion, and without notice: (a) choose to monitor the Program, as well as block communications and actions therein; (b) change, cancel, suspend, or modify any aspect of the Program; and (c) remove or disqualify any Users from the Program. Moreover, you agree not to tamper with the Program (such as by transmitting bots, viruses, Trojan horses, malware, or any other file that might contaminate or otherwise corrupt the underlying system or technology of the Program), or otherwise engage in any actions that are designed to disrupt or undermine the legitimate operation of the Program (such as by engaging in harassing behavior or by disparaging or maligning the reputation of Incredibuild or the Program).
Participation in the Program represents an ongoing relationship with you, for privacy purposes.
3. Cloud Trial
Notwithstanding the foregoing in order to participate in the Program you shall need to comply with the following:
(a) Be an existing non-cloud customer of Incredibuild at the day of joining.
(b) You must have an existing contract with AWS or AZURE cloud hosting service providers.
(c) You must initiate the trial and participate in the Program through the assistance and involvement of one of Incredibuild’s Program support personnel (free trial which was downloaded from Incredibuild’s website will not qualify as eligibility to participate in the Program).
(d) The Program shall be limited to such number of machines as Incredibuild will decide in its sole discretion.
(e) The Program is valid to use cases and tools supported by Incredibuild
(f) The Program shall be limited to Windows customers only
4. Trial Terms
The Program will provide you with a free trial of Incredibuild’s cloud services for a period of time not to exceed ten (10) calendar days. In return for the participation in the Program Incredibuild will reimburse you with an amount of up to USD1000 in one of the following ways:
(a) A credit from AWS or AZURE in an amount of USD1000; or
(b) A reimbursement of up to USD1000 from Incredibuild subject to the following:
(i) A formal tax invoice for the amount to be reimbursed (up to USD1000); and.
(ii) Receipt, along with the tax invoice, of a usage report on the cloud consumption including instance types and hours used.
The payment of the USD1000 is subject to the cloud vendor (either AWS or AZURE) policy using spot instances according to Incredibuild instance type recommendations.
5. INTELLECTUAL PROPERTY
Incredibuild (and/or its licensors and suppliers, as applicable) is and shall be the sole and exclusive owner of all right, title, and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Program (b) the Confidential Information (defined below); and (c) any modifications, derivative works, and/or improvements of or to any of the foregoing (regardless of inventorship or authorship). You shall make, and you hereby irrevocably and unconditionally make, all assignments necessary or reasonably requested by Incredibuild to ensure and/or provide Incredibuild (and/or its designee(s)) the ownership rights set forth in this paragraph. No license or ownership right in or to such Intellectual Property Rights is granted or conveyed under these Terms, all of which are hereby reserved. “Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to any technology, invention, work of authorship, software, database, data, know-how, business name, logo (or other branding), software, design, and/or other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
As a User, we may (directly or indirectly) disclose or make available to you certain information or material that is related to our business (such as financial data), products (such as product roadmaps), and/or services (collectively, “Confidential Information”). Confidential Information may be in any form or media (such as graphical, physical, or electronic), and may or may not be designated as “confidential” or “proprietary”, but you acknowledge and agree that all Confidential Information is proprietary and confidential to Incredibuild, its licensors, and/or suppliers.
You must keep all Confidential Information secret and use at least a reasonable standard of care to do so. You must not disclose or make available Confidential Information to any third party, unless expressly approved in writing by Incredibuild on a case-by-case basis. You agree to adhere to any usage restrictions or instructions imposed by Incredibuild from time to time in connection with Confidential Information; in the event no restrictions or instructions are given, you may only use Confidential Information for your own personal and non-commercial use, and solely in your capacity as a User.
By Incredibuild. Incredibuild may, in its sole discretion, terminate your membership in the Program, at any time, and without notice.
By You. You may terminate your membership in the Program, at any time, for any or no reason, by written notice to the Program support personnel.
You agree that your sole remedy, and Incredibuild’s sole liability, for your dissatisfaction with the Program and/or these Terms, is for you to terminate your Program membership.
Effect of Termination. Upon termination of the Program (or, if earlier, your participation in the Program): (a) any payment that has not yet been delivered to you shall be deemed forfeited; (b) this agreement automatically terminates between you and Incredibuild; (c) you must immediately cease engaging in any Program activities; and (d) you must immediately cease all access to and use of any Confidential Information, and, as directed by Incredibuild, you must return, destroy, and/or permanently erase all Confidential Information in your possession or control. Termination of this agreement shall not affect any right, remedy, obligation or liability that accrued as of the effective date of termination. The following shall survive termination of this agreement: (i) any provision that ought by its nature to survive; and (ii) Sections 5 (Intellectual Property) through 12 (Miscellaneous).
If Incredibuild incurs or suffers any loss or liability whatsoever (including but not limited to a fine, penalty, damages award, legal costs and expenses such as attorney’s fees, etc.) under or in connection with any demand, claim, suit, or proceeding made or brought (whether by an individual, organization, or governmental agency) against Incredibuild and/or its personnel (each, a “Claim”), and such Claim arises directly or indirectly from any breach by you under these Terms and/or your Program activities, you agree to:
(a) indemnify and hold harmless Incredibuild and its personnel for such losses and liabilities; and
(b) if requested by Incredibuild, defend Incredibuild against the Claim at your own cost and expense.
9. INCREDIBUILD DISCLAIMERS AND LIABILITY LIMITATIONS
Except for obligations expressly undertaken by Incredibuild under these Terms, Incredibuild has no obligations under these Terms or otherwise in connection with the Program.
ANYTHING PROVIDED OR MADE AVAILABLE BY INCREDIBUILD UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS OR THE PROGRAM (SUCH AS REWARDS, REFERRAL LINKS, ETC.), ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND DEFECTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY INCREDIBUILD, ITS LICENSORS, AND SUPPLIERS.
NEITHER INCREDIBUILD NOR ANY OF ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER (SUCH AS DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES; SUCH AS LOST PROFITS, BUSINESS, OPPORTUNITY, SAVINGS; SUCH AS LOSS OF, OR DAMAGE TO, DATA, REPUTATION OR GOODWILL) UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS OR THE PROGRAM. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF INCREDIBUILD HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES OR DAMAGES; (C) EVEN IF ANY REMEDY IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY SUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
TO THE EXTENT ANY COURT OF COMPETENT JURISDICTION DOES NOT ALLOW THE EXCLUSION OF DIRECT DAMAGES, INCREDIBUILD’S AGGREGATE LIABILITY UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS OR THE PROGRAM, SHALL BE CAPPED AT FIVE US DOLLARS (USD $5).
10. RELATIONSHIP BETWEEN YOU AND INCREDIBUILD
The relationship between you and Incredibuild is solely that of independent contractors. Nothing in these Terms, in your User membership, and/or in connection with your Program activities shall be deemed or construed to give rise to any employment relationship between you and Incredibuild, or any other relationship (such as partnership, merchant and consumer, joint venture, sponsorship, franchise, affiliate, or agency relationship) between you and Incredibuild. You have no right, power or authority to do (or purport to have the right, power or authority to do) any of the following: (a) undertake, incur, or assume any obligation, liability or commitment on behalf of Incredibuild; (b) make or offer any promises, representations, warranties, or guarantees about Incredibuild, the Program, or any Incredibuild products or services. Any right or discretion that Incredibuild has (or may have) under these Terms to instruct and/or oversee your Program activities, is solely to ensure the integrity and goodwill of the Program.
If any obligation (such as an obligation to pay tax or social security) or liability (such as a fine) is imposed upon Incredibuild in connection with a determination (whether by a court or a governmental agency) that a relationship (other than an independent contractor relationship) exists between you and Incredibuild, you agree to indemnify and hold harmless Incredibuild from and against such obligation and liability.
You hereby irrevocably and unconditionally release and forever discharge Incredibuild, its personnel, directors, shareholders, and Program-related suppliers, licensors, administrators, and representatives (collectively, the “Released Parties”) from, and waive, any and all Program-Related Claims (defined below).
“Program-Related Claims” means any claims, demands, damages, losses, liabilities, costs, and expenses caused by, arising out of or in connection with, or otherwise related to, participation in the Program (including, but not limited to, any property (whether tangible or intangible) loss or damage, reputational loss or damage, personal injury or death caused to any person(s), and/or the awarding, receipt and/or use or misuse of the Program or any payment) in the past, present, or future.
No Interference with Employment Duties. This paragraph applies if you are entering into this agreement in your individual capacity: It is your responsibility to obtain any approvals needed from your employer (if any) to participate in the Program. Furthermore, unless approved by your employer (if any), you must not engage in the Program at the expense, or to the detriment, of your employment duties. You acknowledge and agree that you are not being solicited, in any capacity whatsoever (whether as an employee, contractor, or otherwise) to provide any goods or services to Incredibuild or any third party.
No Disparagement; Legal Compliance. In connection with your participation in the Program, you must not (a) engage in any deceptive, misleading, or unethical practices that are or might be detrimental to Incredibuild or its products or services, (b) make any disparaging statement about Incredibuild or its products or services, (c) misrepresent the nature or scope of your status within the Program or the relationship between you and Incredibuild hereunder, and/or (d) otherwise cause harm to Incredibuild’s good name and business reputation.
Legal Compliance. In connection with your participation in the Program, you must comply with all applicable laws, such as export control laws and regulations, and bribery or anti-corruption laws. Without limiting the generality of the foregoing, you agree not to promote, approach, or use distribute, transfer, provide, sub-license, share with, or otherwise offer, any Incredibuild products or services in violation of the United States Foreign Corrupt Practices Act, the UK Bribery Act, and similar anti-corruption laws in all jurisdictions.
Entire Agreement. These Terms represent the entire agreement between you and Incredibuild (and supersede any prior or contemporaneous agreements or understandings, whether oral or written, between you and Incredibuild) relating to the subject matter hereof. Certain Program-related features, benefits, tools, and/or other items or services made available by Incredibuild to you, may be subject to their own respective terms and conditions (each, “Supplemental Terms”). Unless the Supplemental Terms expressly state otherwise, each set of Supplemental Terms shall be deemed in addition to these Terms (and are hereby incorporated into these Terms by reference), and to the extent of any conflict between these Terms and the Supplemental Terms, the Supplemental Terms shall prevail.
Governing Law. These Terms (including without limitation the validity and any termination hereof) shall be governed by, and construed in accordance with, the laws of Israel, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and is hereby disclaimed.
Dispute Resolution. Any claim, dispute or controversy under, or otherwise in connection with, these Terms or the Program (a “Dispute”) shall be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv. You hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Notwithstanding the foregoing, Incredibuild reserves the right to seek equitable relief (such as injunctive relief) in any court worldwide of competent jurisdiction. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY.
Modifications to these Terms. Incredibuild may, from time to time and in its sole discretion, modify these Terms, and Incredibuild may or may not notify you of the updated Terms (the “Updated Terms”). In any event, the most current Terms will be available at [https://www.incredibuild.com/incredibuild-cloud-program-terms]. The Updated Terms will take effect upon the date specified in a notice given to you (or, if no notice is given, or no date is specified, then ten (10) days after the date such Updated Terms are posted online). So please check these Terms periodically. If you object to the modification(s), then, as your sole remedy, and Incredibuild’s sole liability, you may terminate your membership in the Program.
Severability. If any provision of these Terms is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of these Terms shall remain in full force and effect; and (b) you and Incredibuild agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and these Terms shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
Assignment. Incredibuild may assign this agreement (or any of its rights and/or obligations hereunder) without your consent, and without notice or obligation to you. You may not assign this agreement (or any of your rights and/or obligations hereunder) without Incredibuild’s prior express written consent. Any prohibited assignment shall be null and void. Subject to the foregoing, this agreement binds and benefits each party and its respective successors and assigns.
Remedies. Except as may be expressly stated otherwise in these Terms, no right or remedy conferred upon or reserved by any party under these Terms is intended to be, or shall be deemed, exclusive of any other right or remedy under these Terms, at law or in equity, but shall be cumulative of such other rights and remedies.
Waiver. No failure or delay on the part of any party in exercising any right or remedy under these Terms shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by Incredibuild, the writing must be duly signed by an authorized representative of Incredibuild), and shall be valid only in the specific instance in which given.
Language; Electronic Contract. The language of these Terms is expressly agreed to be the English language. By entering into this agreement, you hereby irrevocably and unconditionally waive to the maximum extent legally permitted, any law applicable to you requiring that these Terms be localized to meet your language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.