These terms and conditions set out the legally binding agreement (the “Agreement”) by and between AceCloud Contracting Party specified in Section 1 below (“we”, “our” or “AceCloud”) and the Client (“Customer”, “you”, “your”, “You”, “Your”). These terms of use govern your use of AceCloud Sites, Services and Products. In these terms, the word “Sites” refers to AceCloud websites and the Services and Products offered on the AceCloud Site. By using the AceCloud Services, you acknowledge and agree that you have read, understood, and agreed to be bound by the terms and conditions, as defined below.
The use of AceCloud Products or Services are provided by AceCloud through a set digitally-executed agreement. Where these terms and conditions are translated into a language other than English, the English text shall prevail.
WHEN YOU CLICK “I AGREE”, CHECK A BOX, OR OTHERWISE PROVIDE CONSENT DURING THE ORDERING OR REGISTRATION PROCESS, YOU AND WE ARE AGREEING TO BE BOUND BY THIS AGREEMENT TO THE SAME EXTENT AS IF YOU AND WE HAD MANUALLY EXECUTED A PAPER COPY OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD NOT PROCEED WITH THE REGISTRATION PROCESS OR ORDER OR PURCHASE THE SERVICES.
1.0 DEFINITIONS
1.1 “Affiliate” of a party means an entity that controls, is actually or in effect controlled by, or is under common control with such party.
1.2 “Agreement” means, collectively the Service Agreement and any applicable Service order, product Terms, or other addenda which governs the provision of services.
1.3 “AceCloud Contracting Party” means the party identified in the table below, based on your Access Country.
| Account Country | AceCloud Contracting Party | Mailing Address |
|---|---|---|
| India | Real Time Data Services Private Limited | 809A, Udyog Vihar, Phase 5, Sector 19, Gurugram-122015, Haryana, India |
| Any Country except India | Real Time Cloud Services LLC | 2969 Oneill Dr, Bethel Park, Pennsylvania, 15102-6602 |
1.4 “Client” shall mean a person, Association of Persons (AOP), company that obtains Services from AceCloud.
1.5 “Confidential Information” means all information including Customer Data (whether in written, oral, electronic or other format) which relates to the technical, financial and business affairs, dealers, suppliers, products, developments, operations, processes, data, trade secrets, design rights, know-how, plans, budgets and personnel of each Party and its affiliates which is disclosed to or otherwise learned by the other Party in the course of or in connection with this Agreement (including without limitation such information received during negotiations, location visits and meetings in connection with this Agreement);
All such information in whatever form or mode of transmission, which is disclosed by a Party (the “Disclosing Party”) to any other Party (the “Recipient”) in connection with the Services during its implementation and which has been explicitly marked as “confidential”, or when disclosed orally, has been identified as confidential at the time of disclosure and has been confirmed and designated in writing within from oral disclosure at the latest as confidential information by the Disclosing Party, is “Confidential Information”.
1.6 “End User” or “User” shall mean an individual who: (a) is an employee, owner or individual contractor of a Client; (b) accesses and uses the software via AceCloud’s co-located secure data center and hosting platform; and (c) maintains an individual valid license for each instance of the software s/he accesses and uses – as well as a unique log-in identity and credentials (username and password) supplied by AceCloud to securely access AceCloud’s servers and thereby his or her respective assigned instance(s) of the software. All Users shall be bound by the terms of this Agreement.
1.7 “Fees” means all amounts payable for AceCloud Services.
1.8 “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trademarks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights. AceCloud shall retain all right, title and interest in and to the Services and any software or other technology used by AceCloud in the provision of the Services and all modifications and derivative works thereof; all trademarks, names, logos; and all Documentation for the Services, including without limitation, all rights to patent, copyright, trade secret and other Intellectual Property Rights. Other than as specifically described in Section 23, you have no right under the Agreement to any of the Services, software, documentation, or to any of our trademarks, patents, copyrights, or other Intellectual Property Rights. We retain all rights not granted herein. This includes any information we collect from you for use of the Services.
1.9 “Outage” or “Downtime” means when a User is unable to access AceCloud Services while having a healthy internet connection and a healthy device to access from its local end. The User must use the correct username and password, and the correct connector application. The downtime will be the time when such an event was reported and shall continue until AceCloud is able to offer a resolution.
1.10 “Service Level Agreements” or “SLA” Means any provision providing a specified credit remedy for an identified failure to deliver or provide the Services to the identified standard.
2.0 GENERAL
The terms and conditions set forth herein constitute the full and complete agreement between the aforementioned parties – AceCloud and YOU. You have subscribed for the service(s) and are executing this Agreement after having satisfied yourself of the service(s) during the trial and/or otherwise.
3.0 APPLICATION AND ACCEPTANCE OF THE TERMS
3.1 Your use of the AceCloud Services (“Services”) hereinafter, is dependent on the terms and conditions provided, as well as those in the following (collectively, the “terms”):
(a) AceCloud Product terms of Service
(b) Privacy Policy
(c) Any other web page or service agreements and policies if agreed and published on the AceCloud Platform occasionally
3.2 By accessing the AceCloud or by utilizing the Services, you agree to be bound by the terms and accept that AceCloud may modify any terms at any moment by posting the corresponding modified and restated terms on its website.
3.3 AceCloud Services hereby have the right to allot any portion of the terms (including any of the rights, benefits, titles, obligations, and interests and duties in this Agreement’s terms) to any individual or entity. AceCloud can make replacement of the terms or any part, and you hereby unconditionally agree and consent to any such changes, when notified about it.
3.4 In conjunction with any other terms and conditions of Agreement with AceCloud, these Product terms will be applied upon purchasing AceCloud Services.
3.5 Additional Defined terms
(i) Our expert professionals will be available to support you on phone and chat 24*7*365.
(ii) Any further level of support offered by AceCloud for the particular Services is reported in these Product terms or Service Order.
3.6 To ensure optimal performance for all of our customers, AceCloud reserves the right to limit a service’s outgoing public bandwidth throughout by up to 50%, if it has a detrimental effect on network quality for other users.
4.0 ACCESS TO ACECLOUD SERVICES
You may access and use the AceCloud Services for which you have registered solely for your own benefit and only in accordance with this Agreement. As a condition of using the AceCloud Services, You must set up an authorized Account with Login Credentials. You will provide accurate and complete information in your Account and will update this information as necessary to keep it current. For fraud prevention purposes, AceCloud may require You to provide documentation verifying your identity and payment information. Failure to provide accurate information in response to such a request will result in the cancellation of your order(s) and immediate termination of your Account. You can manage your Account through the AceCloud portal.
You are solely responsible for the security of your Login Credentials and those of your Users. You must ensure that Login Credentials are not shared with others. You are responsible for any activities that occur under your Login Credentials, including those by Users. If you suspect that unauthorized access to Login Credentials has occurred, you must notify AceCloud as soon as possible by contacting Customer Support via chat, phone, or email at support@acecloud.ai. You must ensure that Users comply with all terms and conditions of this Agreement, and you remain responsible for the actions and omissions of Users. If you become aware of any violations by a User, you must immediately terminate that User’s access to Content Data.
5.0 USE OF THE SERVICES
5.1 When using Services on a trial basis (referred to as the “Trial Period”), you are permitted to use the Service only for a period of ten (10) calendar days, beginning from the date AceCloud provides you with login credentials, unless AceCloud specifies a different Trial Period in writing. The Trial Period is provided at no cost and comes without any support, and is offered “AS IS” without any form of indemnity or warranty. However, your statutory rights as a consumer remain intact. Support Policies do not apply to the Trial Period. To continue using AceCloud Services beyond the Trial Period, you must (A) register for the appropriate AceCloud Services via your account and (B) make the necessary payment. After the Trial Period ends, You will lose access to the Services and any content or data associated with it, unless You continue its Subscription on Paid basis.
5.2 You accept that AceCloud might establish new methods for use of the Services, as AceCloud finds necessary for the ideal performance of the Services. Your utilization of any Service from the AceCloud Site is managed by its terms and conditions of the Agreement.
5.3 You agree that AceCloud may transfer the configuration or the data within or among the data centers, if AceCloud finds doing so is necessary to fix service degradation or shared resource limitations for the ideal performance of the Services. If such data transfer will impact your data present in a data center in another country, AceCloud will give proper advance notice of at least 30 days.
5.4 During the Services Period, AceCloud may update the Services to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third Party Content. AceCloud updates to the Services will not materially reduce the level of performance, functionality, security or availability of the Services during the Services Period of Your order.
5.5 AceCloud Services has the ability to provide additional services and you accept that such provisioning comprises acceptance of the terms and condition of this Agreement.
5.6 How AceCloud Services are administered:
(i) Administrators: Specify certain End Users as “Administrators”, who will have administrator rights over use of AceCloud Services.
(ii) Reseller as Administrator: If you order cloud products through a reseller, then you are responsible for determining whether reseller may serve as an Administrator.
(iii) Age Requirement for End Users: The AceCloud Services are not intended for, and should not be used by, anyone under the age of 18 or of the legally competent age as per the country of residence.
5.7 AceCloud will also provide You with no less than three (03) months’ prior written notice before discontinuing any material functionality of a Service that is generally available to customers and that You are actively using. However, AceCloud shall not be obligated to provide such notice if the discontinuation is required to (a) address an emergency or imminent risk of harm to the Services or AceCloud’s operations, (b) respond to claims, litigation, or loss of licensing rights related to third-party intellectual property, or (c) comply with applicable laws. In such cases, AceCloud will make reasonable efforts to provide You with advance notice to the extent practicable under the circumstances.
5.8 If You specifically request the use of any software or service that is approaching its End-of-Life (EOL) status, or has already reached EOL, such use shall be at your sole discretion and risk. You acknowledge and agree that You are solely responsible for managing and addressing any risks associated with the use of such software or services, and that AceCloud is not liable for any issues arising from the use of such EOL or near-EOL software or services.
6.0 SERVICE LEVEL AGREEMENT
6.1 Cloud SLAs: The Service Level Agreement(s) (Appendix 1) are all described in the Agreement file, as provided in the Services mentioned in Service order (“Cloud SLAs”).
6.2 Limitations on Credits: The following limitations apply to all Cloud SLAs:
(A): No credit is granted to you under any Service Level Agreement for downtime or interruption as a result of Maintenance.
Maintenance includes:
(i) AceCloud maintenance windows: During repairs or modifications of shared infrastructure, like core routing or switching infrastructure, AceCloud gives a notice at least before 72 hours, that happens during off-peak hours in the time zone where the data center is located.
(ii) Schedule your maintenance: AceCloud maintains your configuration in advance of your request (either based on standing instruction or on a case-by-case basis), such as software or hardware upgrades.
(iii) Emergency maintenance: For the security and performance of configuration of AceCloud network, you may require critical maintenance due to an unforeseen issue or due to reasons beyond the reasonable control of AceCloud.
(iv) Routine Optimization: AceCloud may, with advance notice of 24 hours, conduct reboot-migration of their virtual machines if it has failed three consecutive times to live-migrate your virtual machine.
(B) Limitations: You aren’t granted any credit, if you are in breach of the terms and conditions of this Agreement, which may result in service attacks, attempts to hack, viruses or malware impacting delivery of the services. Any change which you request should not results in outages with AceCloud’s ability to provide the Services, deficiencies, bugs, or inaccuracies in your application, operating system, or any patches supplied by the AceCloud.
(C) Requests: In the AceCloud portal, you must submit a support token to request a credit within 30 days after the event occurred giving rise to the credit. The credit will be applied in the next billing cycle if the claim is approved. You must present the Service to which the necessary SLA applied was unfavorably affected due to outage or downtime to be eligible for the credit. To determine whether a credit is due, time periods will be calculated from the timestamp created by AceCloud’s ticket system. You may create a support ticket to note the beginning time for a support request or other event, or if you approach AceCloud by phone for support, AceCloud will open a ticket. If you call AceCloud, there could be some delay between the time of the call and the time AceCloud opens a ticket.
7.0 BRING YOUR OWN LICENSE (BYOL) TERMS
7.1 You may use your own licenses for software (“Licensed Software”) in the Cloud Service if you meet the eligibility requirements specified in your agreements with the respective software vendors. It is your responsibility to ensure that your use of the Licensed Software in the AceCloud Service complies with all applicable licensing requirements and vendor agreements.
7.2 You are solely responsible for obtaining and maintaining all necessary licenses for the Licensed Software and for complying with all terms, conditions, and obligations outlined in your licensing agreements. This includes ensuring that any usage of the Licensed Software in the AceCloud Service aligns with the software vendor’s End User License Agreements (EULAs) and other relevant terms.
7.3 You must ensure that the Licensed Software remains compatible with the AceCloud Service throughout its lifecycle. You are responsible for managing the End of Life (EOL) of the Licensed Software, which includes:
(i) Keeping track of any EOL announcements or notifications from the software vendor.
(ii) Developing and executing a plan to address the implications of the software reaching its EOL, including potential upgrades or replacements.
(iii) Ensuring a smooth transition to alternative solutions or updated versions of the software before the EOL date to prevent any disruption to your use of the AceCloud Service.
(iv) Ensuring that any actions taken in relation to the EOL of the software remain in compliance with your licensing agreements and the terms of the AceCloud Service.
7.4 You must use the appropriate deployment configurations (e.g., Dedicated Instances or Dedicated Hosts) as required by your licensing agreements. All instances of the Licensed Software must be launched from software binaries provided by you.
7.5 Your use of the Licensed Software in the AceCloud Service is subject to the terms and conditions of your agreements with the software vendors. Any use of the AceCloud Service that does not comply with these agreements is not authorized.
7.6 You agree to indemnify, defend, and hold AceCloud, its affiliates, and their respective officers, directors, employees, and agents harmless from any claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to your use of the Licensed Software, including any claims of infringement or breach of licensing agreements.
7.7 AceCloud makes no warranties regarding the compatibility or performance of the Licensed Software with the AceCloud Service and is not responsible for any issues related to your Licensed Software.
7.8 Upon termination or expiration of the agreement, you are responsible for removing all Licensed Software from the AceCloud Service. AceCloud will not retain any data or software related to the Licensed Software beyond the termination of the agreement unless otherwise agreed.
7.9 AceCloud will provide reasonable assistance for transitioning the Licensed Software out of the AceCloud Service but is not liable for any costs or issues arising from such transition.
8.0 TERM AND RENEWAL
8.1 Term: The Initial Term for every Service Order launches on the date that AceCloud makes the services accessible to you and carries on for the time period unless terminated by either Party.
8.2 Termination for Convenience: AceCloud may terminate this Agreement for any reason by providing Clint, a written notice of thirty (30) days prior to such date of termination.
8.3 Termination for Breach: To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. However, AceCloud may terminate this Agreement on immediate basis in case of non-payment of the Service Fees and the same overdue for over 7 days.
8.4 Consequences of Termination: You shall proceed with AceCloud’s termination process which states that:
8.4.1 Prior to the effective termination date, you are accountable for taking backup.
8.4.2 You will not be able to utilise the Services after the effective termination date.
8.4.3 You will not be able to view your information stored on the Services during termination or following termination or suspension.
8.4.4 You agree that if you cancel the Services or instances, the information stored thereon can no longer be recovered.
8.4.5 Additional charges may be applicable to you as per the terms of Service or similar arrangements.
9.0 FEES
9.1 Billing of all services would be on actuals as mentioned at https://acecloud.ai/pricing/
9.2 The fees for the AceCloud CEDS Services are calculated by AceCloud based on clients resource allocated for the client for the environment. Provided Client has approved credit terms with AceCloud, Client shall pay the invoice for the AceCloud Services within Fifteen (15) days of invoice date via Bank Transfer. These payment terms shall apply notwithstanding any separate agreement between the Parties containing different payment terms. Payments shall be made in the currency that is billed by AceCloud. Client will be liable to pay interest on any overdue amount at the rate of 18% per annum on all past due balances commencing from the date payment is due. If payment is delayed by more than 15 days from the number of credit days allowed, access to services will be disconnected after giving 7 days’ notice.
9.3 AceCloud may update the pricing and fees for Services in Section 9.1 at any time during the Term of this Agreement.
10.0 DATA PRIVACY
10.1 You own all right, title and interest in and to Customer Data and shall have sole responsibility and liability for (i) the legality, appropriateness, and integrity of Customer Data; (ii) the completeness, reliability, accuracy and quality of Customer Data; (iii) obtaining and maintaining all necessary licenses and consents required to use Customer Data, if any; and (iv) Your entering of Customer Data into the Cloud Service. You acknowledge that (i) AceCloud will not be held responsible in any way for any Proprietary Right or other rights’ infringement or violation or the violation of any applicable laws, arising or relating to such Customer Data and/or communications; and (ii) that any Personal Data contained in Customer Data has been collected and is maintained in compliance with applicable Data Protection Laws.
10.2 You grant to AceCloud and Our Affiliates a right; (i) to use, host, transmit, monitor, manage, replicate, access, store, and cache Customer Data in connection with performing our rights and obligations under the Agreement; and (ii) where necessary, to transfer Customer Data within the same country, to any third parties used by AceCloud but only as required for the provision of the Services.
10.3 During the Subscription Term, You will be entitled to access and export (where available) Customer Data at any time. Export may be subject to technical limitations; in which case AceCloud will find a reasonable method for You to access Customer Data. Within 15 days of termination of Service, AceCloud will delete or destroy Customer Data remaining on the Cloud Service unless the Client request and AceCloud agrees to extend the retention period not exceeding 30 days. Any such retained data is subject to the confidentiality provisions of these Terms.
10.4 AceCloud will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to protect against the unauthorized access to or disclosure of Customer Data.
10.5 Each party shall, in connection with the exercise of its rights and the performance of its obligations under the Agreement, comply with all applicable Data Protection Laws. AceCloud acknowledge that You are acting as a data controller in respect of any Customer Data which contains Personal Data.
11.0 DATA BACKUP
You ensure and agree to maintain no less than one additional current duplicate of your data someplace other than AceCloud Services. Although, the Service can be used as a backup service. If you use AceCloud backup services, then you are held responsible for testing and performing restores, and also, testing and monitoring the uprightness of your data and systems. You can make a choice to design a backup or snapshot of your cloud servers or databases, however, it is your superintend to take the snapshot or backup and test them to examine their quality. In the event of data loss resulting from maintenance activities or downtime, AceCloud shall not be held liable for such loss.
12.0 FAIR USAGE POLICY
To provide optimal usage, we ensure equitable bandwidth distribution among all customers and to maintain optimal network performance. We outline data transfer limits, prohibited activities, and the action that will be taken if these limits are exceeded.
13.0 SUSPENSION OF SERVICES
AceCloud may suspend the services if:
(a) AceCloud reasonably believes that it is obligatory to protect the AceCloud network since there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services.
(b) You or Your Users are accessing or using the Services to commit an illegal act.
(c) AceCloud is implored by a regulatory or law or government body to suspend your Services.
(d) there is a violation of the Term of Use Policy.
(e) AceCloud may suspend Services without liability if:
(i) You fail to pay AceCloud due payment, regardless of whether such failure was your fault or third party.
(ii) You initiate chargeback.
(iii) You are not cooperating with AceCloud’s reasonable investigation of any agreement suspected violation.
(iv) Attack on your configuration which is manipulated or accessed by a third party without your consent.
When reasonably practicable and lawfully permitted, we will provide You with advance notice of any such suspension. The suspension on shorter or contemporaneous notice is to protect AceCloud from imminent and notable operational, legal, or security risk. If in case your configuration is compromised, then you should address the vulnerability, before AceCloud places your configuration back in service. AceCloud may be able to perform this work for you at AceCloud’s standard hourly or monthly rates as a Service. We will use reasonable efforts to re-establish the Services promptly after we determine that the issue causing the suspension has been resolved. During suspension AceCloud continues to charge you Fees for Services during suspension and may charge reasonable restoration fee upon reinstatement of Services.
14.0 CLIENT’S RESPONSIBILITY
14.1 You bear the risks related to your activities and are solely responsible for the use of the Services made available by AceCloud for compliance with the terms of Service in effect, including but not limited to any third party using the Services, or on whose behalf the Services are used. In particular, you are responsible for:
(a) Ensuring the Services ordered are suited to your needs and the needs of third parties for whom or on whose behalf they are used,
(b) The content, such as information, data, files, systems, applications, software, websites, and other elements which may be reproduced, hosted, installed, collected, transmitted, distributed, or published, and more generally used and/or operated within the scope of the Services, as well as
(c) The management and use of said content (in particular their verification, validation, updating, deletion, backup, and along with any measure designed to protect against the loss or alteration of the content), including when the content belongs to a third party or is used or operated by or on behalf of a third party, and
(d) Compliance with applicable laws and regulations relating to the use or receipt of the Services,
(e) Ensuring that any changes to the application, if any, are made by your technical team,
(f) Making sure all relevant stakeholders are available to the AceCloud team,
(g) Sharing relevant information, as requested by the AceCloud team,
(h) Managing the entire Cloud infrastructure (end to end),
(i) Applying Multi-Factor Authentication (MFA) in your root login,
(j) Sharing all the Plan (RAM and CPU combination) with the AceCloud team to ensure it is available in your account.
14.2 You will not directly or indirectly transfer, export or re-export the Subscribed Services or any additional services to any sanctioned, embargoed or prohibited countries, persons, or end users including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. You also agree not to permit the use of the Subscribed Services by anyone other than Authorised Users.
14.3 You will ensure that you have a dedicated data back up or disaster recovery facilities to ensure it at all times maintains backups of all your server’s Data.
14.4 You shall comply at all times with the applicable laws related to anti-corruption laws, money-laundering and bribery laws, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act, 2010, each as amended.
15.0 LIMITATION OF LIABILITY
AceCloud makes every reasonable effort to maintain operation of the AceCloud Services. However, because many events and circumstances are beyond the control of AceCloud, AceCloud does not in any way warrant or otherwise guarantee the availability of the AceCloud servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of AceCloud. AceCloud may, at its sole discretion, limit or deny access to its servers, if, in the judgment of AceCloud, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on AceCloud servers.
All AceCloud services are provided to you on an “as is” basis, and without any warranty of any kind, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.
ACECLOUD MAKES NO WARRANTY, EXPRESS OR IMPLIED OR STATUTORY, AND ALL IMPLIED WARRANTIES OF MERCHANTIBILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, COURSE OF PERFORMANCE, USAGE OF TRADE, ACCURACY OF INFORMATIONAL CONTENT AND SYSTEM INTEGRATION, AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY FULLY AND FOREVER DISCLAIMED. ACECLOUD IS NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR SERVICES.
Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. With the exception of the content found on AceCloud websites, AceCloud has no control over information contained on the Internet. AceCloud, therefore, accepts no responsibility for any information which you may receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality, and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. AceCloud provides no warranty for any goods or services which you obtain over the Internet, nor the compatibility of any such services with the AceCloud servers.
In the event of AceCloud executing the termination for any or no reason prior to the renewal date, AceCloud’s sole liability may be to issue a prorated credit for the Customer’s unused prepaid Service Fees.
You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental, or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of illegal use of AceCloud Services without regard to whether or not the material claimed to have been infringing is later found to be illegal.
The total sole and exclusive remedy available to you as the result of any breach of this Agreement, negligence, or any action or failure to act whether intentional or otherwise shall be a service credit equal to the Fee paid by you to AceCloud as prorated for the period corresponding either to any downtime or, if cancelling service, to the period of service for the remainder of the month of your first allegation of entitlement to such remedy following said allegation, but in no event to exceed a service credit valued at no more than 50% of monthly service value. This limitation of liability shall be cumulative and not per incident. In no event shall AceCloud be liable for any indirect, special, exemplary, punitive, incidental, or consequential damages, loss of profits or loss of business as the result of any such action or inaction without regard to the likelihood of any such damages. In no event shall AceCloud be responsible for any fees paid by you to any third party or for any services related thereto.
16.0 PRIVACY POLICY
AceCloud has always respected and enforced the Client’s’ right to data privacy and protection. AceCloud has always been committed to safeguarding the Clients data and information including but not limited to complying with applicable laws and data security policies with respect to Hosted Data, customer contact information and customer support information. These efforts include but are not limited to RDP encryption, username-based authentication, access control lists, and user rights restriction. AceCloud’s website uses forms in which you give us contact information (including your name, address, telephone number, and email address) so you can subscribe to the Services, request information and support, and make product suggestions. For Services, we also request a credit card number, or other financial information. We receive and store any information you enter on our website, or give us in any other way, including through email, telephone, or other communications. AceCloud through its data center partners comply with all necessary policies and compliances like ISO 27001, SOC 1, SOC 2. AceCloud may agree to comply to data security policies required at Client’s end other than the existing ones to the extent possible. Client shall bear the charges for any new certification and/or compliance that AceCloud has to take to comply with the Client’s data security policies.
You agree that you shall:
(a) not disclose any personal data or other information to us, if such disclosure would violate any applicable law, rule or regulation;
(b) not request us to use, disclose or otherwise process personal data or other information in any manner that would not be permissible under any applicable law, rule or regulation;
(c) disclose to us only the minimum amount of personal data reasonably necessary for us to perform the Services under the Agreement.
Notwithstanding any other provision in this Agreement, AceCloud shall not be required to provide
(a) physical or network access to our security systems,
(b) any results of security vulnerability assessments;
(c) any information to the extent that providing such information is a violation by us of applicable laws or regulations; confidentiality obligations to our customers; or security certifications; or if such disclosure would hinder law enforcement’s investigation into a security event or any of our trade secret.
17.0 CONFIDENTIALITY, INFORMATION SHARING & LAW ENFORCEMENT
17.1. “Confidential Information” means any business or technical information disclosed by or on behalf of either party or their Affiliates to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, all non-public elements of the AceCloud’ Services Confidential Information, Customer Content is Customer’s Confidential Information, and the terms of the Agreement and any information that either party conveys to the other party concerning data security measures, incidents, or findings constitute Confidential Information of both parties. Confidential Information will not include information that the receiving party can demonstrate (a) is or becomes publicly known through no fault of the receiving party, (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others, (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others or (d) was independently developed by the receiving party without use of or reference to the Confidential Information.
17.2 You are solely responsible for ensuring that your login information is utilized only by you. Your responsibility includes ensuring the secrecy and strength of your passwords. AceCloud shall have no liability resulting from the unauthorized use of your login information. If you use weak passwords or do not change your password frequently, you increase the risk of your password being discovered by unauthorized parties. If login information is lost, stolen, or used by unauthorized parties or if you believe that your Hosted Data has been accessed by unauthorized parties, it is your responsibility to notify AceCloud to request the login information be reset or unauthorized access otherwise be prevented. AceCloud will use commercially reasonable efforts to react to such requests as soon as practicable after their receipt.
17.3 Information Sharing: At no point will AceCloud rent, sell or otherwise share your information to any external company. The only exceptions for this are: We have written permission to do so or receive electronic permission via email; if we are required to by law, subpoenas, court order, or other legal process; if we are acquired or merge with another company, we reserve the right to transfer your information to that new company.
17.4 Law Enforcement: AceCloud cooperates with government and law enforcement officials and private parties to enforce and comply with the law. AceCloud will disclose any information about you to government or law enforcement officials or private parties as it, in its sole discretion, believes necessary or appropriate to respond to claims and legal processes (including without limitation subpoenas), to protect AceCloud’s property and rights or the property and rights of a third party, to protect the safety of the public or any person, or to prevent or stop activity AceCloud considers to be illegal or unethical. To the extent AceCloud is legally permitted to do so, it will take reasonable steps to notify you in the event that AceCloud is required to provide your personal information to third parties as part of a legal process.
18.0 RESTRICTIONS
The Customer shall not license, sub-license, distribute, or disclose the use of a Service to any third party, or use the services for any purpose other than accessing the Customer’s own data in accordance with this Agreement. The Customer agrees that he/she is solely responsible for the content of any material posted to the 3rd party application, and that no End-User will attempt to access programs, options, settings, services, files, applications, or AceCloud Servers not within their user rights. At no time may the Customer share user credentials, license numbers, or any other applicable information used to access AceCloud services or 3rd party applications. If the Client, User, is found to be performing any of the aforementioned actions or offering the services of AceCloud in performing these actions, AceCloud reserves the right to cancel the existing Agreement with the Client immediately with no refund.
19.0 INDEMNITY
You agree to fully defend and indemnify and hold harmless AceCloud, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this Agreement or your negligence whether active or passive or any negligence of AceCloud in any way related to your use of the AceCloud Services or any portion thereof.
You agree to fully defend and indemnify and hold harmless AceCloud, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the AceCloud Services or any portion thereof. Choice of counsel remains exclusively that of AceCloud.
You agree that upon the assignment of your login information such as a username and password, you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft, or other destruction of any data as the result of any access to your account via the use of your login information.
You further agree to defend and indemnify and hold harmless AceCloud of and from any and all third-party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential login information. Choice of counsel remains exclusively that of AceCloud.
20.0 WARRANTY AND DISCLAIMER
20.1 Each Party represents and warrants that (a) it has full power and authority to enter into and perform this agreement, (b) the execution and delivery of this Agreement has been duly authorized, and (c) its performance hereunder does not breach any other agreement to which it is bound.
20.2 ACECLOUD DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT ACECLOUD WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH CLIENT’S CONTENT OR THEIR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY ACECLOUD, AND (C) THE SERVICES WILL MEET CLIENT REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. ACECLOUD ACKNOWLEDGES THAT IT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ACECLOUD IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ACECLOUD IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CLIENT CONTENT, THEIR APPLICATIONS OR THIRD PARTY CONTENT.
20.3 FOR ANY BREACH OF THE SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF WE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT SERVICES AND WE WILL REFUND TO YOU THE FEES FOR THE TERMINATED SERVICES THAT YOU PRE-PAID TO US FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
20.4 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
21.0 NON-SOLICITATION
While you are using any of the Services AceCloud provides and for a period of twelve (12) months after the expiry or termination of your use of such Services, you will not directly or indirectly employ or solicit to employ, employees, of AceCloud (“Personnel”). In the event you solicit any Personnel for employment in breach of this Section 21, then you shall reimburse AceCloud an amount equal to the salary and commissions, if any, earned by such employee during the last twelve (12) months while such Personnel was employed by AceCloud. The parties acknowledge that such reimbursement is a genuine estimate of the lost revenue and the costs of recruiting and training of a replacement as well as costs incurred on training such employees hired by you.
22.0 FORCE MAJEURE
Either party to this Agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, pandemic, epidemic, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
In addition to any event of force majeure as described in the foregoing paragraph, AceCloud may also terminate this Agreement in the event that AceCloud elects, at its sole discretion, to cease doing business in the United States Canada and/or India for economic reasons or for any other reason whatsoever. Client who, at the time AceCloud ceases doing business in the United States and/or Canada, are taking advantage of any AceCloud offer for free services or any other services that were intended to go beyond the date of cessation (hereinafter, the “Prepaid Services”), may not recover any damages from AceCloud (or any of its affiliated entities) in the event that they incur costs and expenses related to the cessation of the Prepaid Services, nor do such customers have, nor may they bring, any claim for repayment of such costs and expenses, including without limitation, fees paid to other Hosting Services for the balance of time remaining with respect to any AceCloud offer of prepaid services. Customers receiving Prepaid Services at the time of cessation of business shall be entitled to a reimbursement of their Prepaid Service fees corresponding to the remaining time left of the AceCloud Prepaid Services.
23.0 OWNERSHIP OF INTELLECTUAL PROPERTY
AceCloud Services makes use of intellectual property of AceCloud including but not limited to AceCloud tools and technologies for infrastructure configuration, system virtualization, and customer service. You acknowledge that all rights and titles to any such AceCloud property shall remain the sole property of AceCloud and that you have no right, title, or interest therein. You agree to receive written authorization from AceCloud before performing any security analysis of any AceCloud service. You agree not to attempt to reproduce, reverse engineer, decompile, or disassemble any AceCloud service and you agree that any derivative work is the sole property of AceCloud.
24.0 DISPUTE RESOLUTION & GOVERNING LAWS
Any dispute or claim relating in any way to your use of the Services, or to any products or services sold or distributed by AceCloud will be adjudicated in the Governing Courts, and you consent to exclusive jurisdiction and venue in the Governing Courts, subject to the additional provisions below.
24.1 If the applicable AceCloud Contracting Party is Real Time Data Services Private Limited, the Parties agree the provisions of this Section 24.1 will apply. The Governing Laws shall be interpreted under the laws of India, without regard to any conflict of laws’ provisions and both parties’ consent to such laws. Any claim, dispute, or controversy with respect to, in connection with or arising out of this agreement shall be subject to and decided by arbitration in the State of Delhi, India, by a panel of three arbitrators. Each Party shall designate one disinterested arbitrator and the two arbitrators so designated shall select a third arbitrator. The persons selected as arbitrators need not be professional arbitrators and persons such as lawyers, accountants, brokers, and bankers shall be acceptable, but each shall have substantial experience with respect to information technology and development. The arbitration proceeding shall be conducted in accordance with the Arbitration and Conciliation Act, 1996. Any party may initiate arbitration proceedings hereunder by providing written notice (“Demand for Arbitration”) to the other party to such claim, dispute, or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations. Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written award of a majority of the arbitrators shall be final and binding upon the parties and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. All costs of any such arbitration shall be borne equally by the parties. This Section shall not be construed to prohibit either party from seeking preliminary or permanent injunctive relief in any court of competent jurisdiction, however, the arbitrator hearing the dispute to which the injunction pertains will have the power to modify or dissolve any such injunction, or to order additional injunctive relief, in connection with the final arbitration award. The parties, their representatives, other participants, and the mediator and arbitrator shall hold the existence, content, and result of any mediation and arbitration in confidence except to the extent necessary to enforce a final settlement agreement or to obtain and secure enforcement of or a judgment on an arbitration decision and award.
24.2 If the applicable AceCloud Contracting Party is Real Time Cloud Services LLC, the Parties agree the provisions of this Section 24.2 will apply. The Governing Laws shall be interpreted under the laws of State of Delaware, USA, without regard to any conflict of laws’ provisions and both parties’ consent to such laws. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. In the event AceCloud is a prevailing party in any suit, or action brought against the you to enforce the terms of this Agreement or any rights or obligations hereunder, AceCloud shall be entitled to receive its reasonable costs, expenses, and attorneys’ fees of bringing such or defending suit, or action. Any claim, dispute, or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the State of Delaware, by a panel of three arbitrators. Each Party shall designate one disinterested arbitrator and the two arbitrators so designated shall select a third arbitrator. The persons selected as arbitrators need not be professional arbitrators and persons such as lawyers, accountants, brokers, and bankers shall be acceptable, but each shall have substantial experience with respect to information technology and development. The arbitration proceeding shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association then and there pertaining. Any party may initiate arbitration proceedings hereunder by providing written notice (“Demand for Arbitration”) to the other party to such claim, dispute, or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations.
Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written award of a majority of the arbitrators shall be final and binding upon the parties and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof, including the federal district courts located in the State of Delaware. All costs of any such arbitration shall be borne equally by the parties. This Section shall not be construed to prohibit either party from seeking preliminary or permanent injunctive relief in any court of competent jurisdiction, however, the arbitrator hearing the dispute to which the injunction pertains will have the power to modify or dissolve any such injunction, or to order additional injunctive relief, in connection with the final arbitration award. The parties, their representatives, other participants, and the mediator and arbitrator shall hold the existence, content, and result of any mediation and arbitration in confidence except to the extent necessary to enforce a final settlement agreement or to obtain and secure enforcement of or a judgment on an arbitration decision and award.
25.0 MISCELLANEOUS
25.1 Marketing: Client agrees that during the Term of this Agreement, AceCloud may publicly refer to Client, orally and in writing, as a customer of AceCloud. Any other public reference to Client by AceCloud requires the written consent of Client.
25.2 No Agency/ Independent Relationship: Nothing contained herein shall be deemed or construed as creating a joint venture or partnership, or employment relationship, or agency between AceCloud and the Client. Neither AceCloud nor the Client is authorized, by virtue of this Agreement, as an agent or other representative of the other. Neither party shall be authorized to make any commitments or representations of any kind on behalf of the other.
25.3 Amendments: This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations, and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, Service Order, work order, confirmation, correspondence or other communication of Client or AceCloud, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Client and AceCloud. AceCloud may without advance notice amend this Agreement from time to time and will do so by posting the new Agreement on the ACECLOUD website in place of the old. Each and every such amendment shall become effective immediately for users of AceCloud Services including but not limited to all pre-existing and future accounts. It is your responsibility to periodically check the AceCloud website for updates of this Agreement.
25.4 Assignment: This Agreement and the rights hereunder is not assignable or transferable except that AceCloud may freely assign any or all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of AceCloud, or to any affiliate company or successor in interest of AceCloud. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by AceCloud to any other party, AceCloud will notify you within ninety (90) days and, excepting assignment solely of rights of resale of AceCloud Services, you have the right to terminate this Agreement by giving notice thereof in writing to AceCloud and any such termination shall become effective thirty (30) days after the receipt of such notice by AceCloud.
25.5 Severability: All rights and restrictions contained in this agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid, or unenforceable. If any provision of these terms is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these terms shall remain in full force and effect.
25.6 No Waiver: No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
25.7 Notices: Any notice under this agreement given by AceCloud to you shall be via email or telephone at the address provided by you to AceCloud at the commencement of this Agreement or as AceCloud is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email or telephone call. Notice to AceCloud by email or telephone address is deemed sufficient only upon confirmation from AceCloud by email or FAX or registered mail receipt.
25.8 Headings and Recitals: The paragraph headings in this Agreement are to be given no legal effect. The preamble recitals are incorporated herein as an integral part of this Agreement and are to be given full legal effect.
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