END USER LICENSE AGREEMENT
FOR VClOUDPOINT SOFTWARE
IMPORTANT – READ THIS CAREFULLY:
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SHEN ZHEN CLOUDPOINT TECHNOLOGY CO., LTD. (“VCLOUDPOINT”). YOU MUST CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) IN ITS ENTIRETY BEFORE INSTALLING OR USING VClOUDPOINT SOFTWARE (“SOFTWARE”) IN ANY WAY. BY CLICKING ON THE “ACCEPT” BUTTON PRESENTED IN CONNECTION WITH THIS EULA, OR BY INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS EULA ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY TO THE TERMS OF THIS EULA. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, THEN PLEASE EXIT THIS PAGE WITHOUT CLICKING ON THE “ACCEPT” BUTTON, DO NOT INSTALL OR USE THE SOFTWARE, AND IMMEDIATELY DELETE ALL THE SOFTWARE FROM THE COMPUTER ON WHICH IT WAS COPIED OR DOWNLOADED. BY DOING SO YOU FOREGO ANY IMPLIED OR STATED RIGHTS TO INSTALL OR USE THE SOFTWARE.
- OVERVIEW. The terms and conditions set forth in this EULA apply to the Software. This EULA supersedes all other licensing terms for the Software. Updates to the Software provided by vCloudPointthrough Internet-based services or other means are also subject to this EULA, unless other terms accompanying those updates explicitly supersede or amend this EULA.
The Software is licensed to you on both per Server Device and per Client Device basis.
- DEFINITIONS. For the purposes of this EULA, the following terms shall have the following meanings:
- “Client Device”means a vCloudPointdevice running the vCloudPoint Client Software. A Client Device is not equivalent to a personal computer and is not compatible with all personal computer applications, software and/or peripherals. A Client Device cannot be operated as an independent computer, and must be connected to a Server Device to function as intended
- “Software” means all proprietary vCloudPointsoftware
- “Server Device” means a physical or virtual machine on which the Software is installed and with which one or more Client Devices may connect.
- “Open Source Software”means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL).
- “You” or “you” means the company, entity or individual who enters this EULA and has rightfully acquired the Software from vCloudPointor its authorized sources.
- INSTALLATION AND USE LICENSE.Subject to the terms and conditions set forth in this EULA and conditional upon your compliance therewith, vCloudPointgrants you a limited, non-exclusive license to (i) download, install, and use the Software on a Server Device that you register and assign to your copy of the Software via the vCloudPoint registration process, and (ii) store one copy of the Software on a storage device, such as a network server, provided that You reproduce, unaltered, all proprietary notices on or in any such copies.
- LICENSE RESTRICTIONS. Unless applicable law gives You more rights despite the limitations in this EULA, you may use the Software only as expressly permitted herein. You must comply with any technical limitations in the Software that only allow you to use it in certain ways. You may connect the Server Device on which the Software is installed to up to the maximum number of Client Devices permitted by vCloudPointin the documentation accompanying the Software. Furthermore, you may not:
- use the Software on any devices or products other than those that you or your business organization own or have a valid legal right to use;
- use the Software on any devices other than Server Devices;
- connect the Server Device on which the Software is installed to more than the maximum number of Client Devices permitted by vCloudPointin the applicable documentation;
- modify, translate, reverse engineer, decompile, disassemble or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Software, including without limitation any such mechanism used to restrict or control the functionality of the Software, or (ii) to derive the source code or the underlying ideas, algorithms, structure or organization from the Software (except that the foregoing limitation does not apply to the extent that such activities may not be prohibited under applicable law); or
- make more copies of the Software than expressly permitted in this EULA;
- publish the Software for others to copy; or
- rent, lease, distribute, lend, sublicense, modify or create derivative works based on the Software or any part thereof, or grant to any third party any rights in the Software and its accompanying documentation, or any modifications of any of the foregoing, without the prior written consent of vCloudPoint.
- OWNERSHIP.The Software is licensed, not sold. vCloudPointreserves all rights not expressly granted herein. All intellectual property rights in and to the Software, including without limitation, all patents, copyrights, trademark, trade secret and other proprietary rights of any kind, remain solely the property of vCloudPoint or its licensors.
- ADDITIONAL THIRD PARTY SOFTWARE REQUIRED. The Software is not an operating system. In order to operate the Server Device and any Client Devices, you must also purchase operating system software compatible with your Server Device and Client Device(s). This may require you to obtain appropriate number of Microsoft Windows Server licenses and client access licenses. You cannot use the Software with any MicrosoftWindows Client software (e.g., Windows 7, Windows 8, Windows 10, etc.) unless only a single user and no other user accesses the same Windows Client software at any one time, or you are authorized to do so under an applicable license from Microsoft or as expressly set forth below (see “Microsoft Windows Server to Windows XP License Rights”). vCloudPointis under no obligation to advise, consult or otherwise provide guidance to you regarding any third-party software licensing. You shall indemnify and hold vCloudPoint and its distributors harmless from any and all claims, damages, costs, liabilities, etc. arising from your improper or unauthorized use of the Software, Microsoft Windows Server software, or any other third party software.
- THIRD PARTY SOFTWARE PROVIDED WITH THE FIRMWARE. You hereby acknowledge that the Software may contain Open Source Software. Copyrights and other proprietary rights to such Open Source Software are held by the copyright holders identified in the applicable Open Source Software licenses, and all Open Source Software is distributed to you under the applicable Open Source Software licenses. To the extent any such Open Source Software license requires that vCloudPointprovide You such rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to You in this EULA, then such rights in the applicable Open Source Software license shall take precedence over the rights and restrictions granted in this EULA, but solely with respect to such Open Source Software and solely to the extent of such inconsistency. You acknowledge that the Open Source Software license is solely between you and the applicable licensor of the Open Source Software. You shall comply with the terms of all applicable Open Source Software licenses.
- REGISTRATION AND VALIDATION.
- vCloudPointrequires the Client Device(s) to be registered and validated from the Software online or offline in the manner described in user manual or prompted by the Software. Validation verifies that the Software and the connected Client Device(s) are properly licensed on the Server Device. Without validation, your Client Device(s) or some features of the Software will not function.
- The Software may, from time to time, also require re-validation in order to confirm that the connected Client Device(s) and the Software are still properly licensed.
- During the validation processes, the Software will send information relating to the Software, Server Device, or the Client Device(s), to vCloudPoint.
- If, during the validation process, the Software or the Client Device(s) are found not to be properly licensed or registered, the functionality of the Software may be affected or the Client Device(s) will be fail to connect to the Server Device. For example, you may
- § need to reactivate the Client Device(s) from the Software, or
- § receive reminders to activate the Software or validate the Client Device(s); and you may not be able to
- § use or continue to use some or all the features of the Software, or
- § obtain certain updates to the Software from vCloudPoint.
- UPDATE SERVICES.vCloudPointmay make use of Internet-based services in the Software (the “Update Services”) to deliver to you Updates (as defined below) and/or notifications in connection with the Software. vCloudPoint reserves the right to change its method of delivering the Update Services at any time. You must not interfere in any way with the Update Services. vCloudPoint shall not be responsible for any errors in the Software or the License Keys that would have been fixed by Updates to the Software that vCloudPoint attempted to provide but that were not applied because of interference with the Update Services.
- From time to time, vCloudPointmay, at its own discretion, create updates and/or patches (hereinafter collectively referred to as “Updates”) to the Software. Updates may include support for and compatibility with operating system updates or service packs, bug fixes, and incremental improvements. Updates do NOT include major upgrades to the Software, which may contain major feature additions, support for previously unsupported operating systems, or support for new hardware products; such major upgrades constitute new software for which vCloudPointmay charge additional fees and which may or may not be made available via the Update Services.
- vCloudPointmay make further updates available to you for an additional fee per its Support and Subscription plans.
- You may obtain Updates only from vCloudPointor its authorized sources.
- The Software is designed to be compatible with currently supported operating systems and server hardware. Notwithstanding the foregoing, vCloudPointdoes not warrant and/or represent that the Software will be compatible with any operating systems, applications, hardware or software, or any updates or upgrades thereto. If you upgrade your operating system, applications, hardware or software, vCloudPointwill not be liable for any problems that may occur as a result of an incompatibility between the Software and any such upgraded hardware or software product.
- You may not use these Update Services in any way that could harm them or impair anyone else’s use of the Software and/or the Update Services. You may not use these Update Services to try to gain unauthorized access to the Software, any Server Device(s) or Client Device(s), or any other software, service, data or network.
- SUPPORT SERVICES.You may obtain maintenance and support services from vCloudPointpursuant to the separately executed support agreement of a paid product. Maintenance and support terms for the Server Device and/or Client Device(s) are outside the scope of this EULA and are covered separately in the limited hardware warranty available online in the Support section of vCloudPoint’s website.
- TERM AND TERMINATION. This EULA will remain in effect until terminated. Unauthorized copying of the Software or failure to comply with the terms of this EULA will result in automatic termination of this EULA and all licenses granted herein, and will make available to vCloudPointother legal remedies. This EULA and all licenses granted herein will automatically terminate if You go into liquidation, suffer or make any winding up petition, make an arrangement with Your creditors, or suffer or file any similar action in any jurisdiction in consequence of debt. This EULA and all licenses granted herein may also be terminated by vCloudPointas set forth in Section 14 below. Upon any termination of this EULA, You shall cease all use of and destroy all of your copies of the Software. Notwithstanding the expiration or termination of this EULA, it is acknowledged that those rights and obligations that by their nature are intended to survive such expiration or termination will survive, including, without limitation, the disclaimers of warranties and limitations of liability provided herein.
- LIMITED WARRANTY; DISCLAIMER OF WARRANTIES. vCloudPointwarrants that the Software (and any Updates thereto) will perform substantially in accordance with the applicable user documentation for a period of ninety (90) days from the date of your receipt of the Software (the “Limited Warranty”). vCloudPoint’s and its suppliers’ sole liability, and your exclusive remedy, for any breach of this Limited Warranty or for breach of any other warranty related to the performance of the Software shall be, at vCloudPoint’s option, (i) to terminate this EULA and return the amount paid, if any, by you for the affected Software; or (ii) to repair or replace the Software to make it perform substantially in accordance with the Limited Warranty. This Limited Warranty shall not apply (i) if you make any unauthorized modifications to the Software, or misuse, abuse of the Software; (ii) if you use the Software for purposes other than its intended use; or (ii) if you violate any terms and conditions of this EULA. vCloudPointand its suppliers make no warranties, and provide no remedies, in connection with any defects discovered after the ninety-day Limited Warranty period.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY OPEN SOURCE SOFTWARE INCORPORATED THEREIN OR PROVIDED THEREWITH, AND ANY ACCOMPANYING DOCUMENTATION, ARE PROVIDED “AS IS”.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES EXPRESSLY STATED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY, WHICH VCLOUDPOINT SPECIFICALLY DISCLAIMS, FOR ITSELF AND ON BEHALF OF ITS SUPPLIERS, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VCLOUDPOINT OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE DISCLAIMER OF IMPLIED WARRANTIES ABOVE MAY NOT APPLY TO YOU, IN WHICH CASE THE DURATION OF ANY SUCH IMPLIED WARRANTIES SHALL BE LIMITED TO NINETY (90) DAYS FROM THE DATE YOU PURCHASED OR RECEIVED THE SOFTWARE; PROVIDED, HOWEVER, THAT IN SUCH CASE VCLOUDPOINT’S OR ITS SUPPLIERS’ SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR BREACH OF SUCH IMPLIED WARRANTIES SHALL IN ANY CASE BE, AT VCLOUDPOINT’S OPTION, (i) TO REPAIR OR REPLACE THE SOFTWARE TO CONFORM IT TO SUCH APPLICABLE WARRANTY, OR (ii) TO TERMINATE THIS EULA AND RETURN THE AMOUNT PAID, IF ANY, BY YOU FOR THE AFFECTED SOFTWARE.
VCLOUDPOINT DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE WILL MEET YOUR SPECIFIC REQUIREMENTS. YOU ACKNOWLEDGE AND AGREE THAT PERFORMANCE OF THE SOFTWARE MAY VARY DEPENDING ON THE SERVER DEVICE, CLIENT DEVICE, THE SOFTWARE PROGRAMS RUNNING ON THE FOREGOING (INCLUDING THE SOFTWARE), AND THE BANDWIDTH AND CONFIGURATION OF THE NETWORK CONNECTING THEM. SINCE ALL CLIENT DEVICES SHARE THE SERVER DEVICE’S RESOURCES, A CLIENT DEVICE’S PERFORMANCE MAY DECREASE IF THE SERVER DEVICE’S PROCESSOR(S) OR OTHER RESOURCES BECOME OVERLOADED AS MORE CLIENT DEVICES ARE CONNECTED TO THE SERVER DEVICE OR IF A USER RUNS RESOURCE INTENSIVE APPLICATIONS.
- LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT THAT LIABILITY MAY NOT BY LAW BE LIMITED OR EXCLUDED, IN NO EVENT WILL VCLOUDPOINTOR ITS SUPPLIERS BE LIABLE FOR LOSS OR CORRUPTION OF DATA, LOST PROFITS OR LOSS OF CONTRACTS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE SUPPLY OR USE OF THE SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE). THIS LIMITATION WILL APPLY EVEN IF VCLOUDPOINTOR AN AUTHORIZED DISTRIBUTOR OF VCLOUDPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL VCLOUDPOINT’S OR ITS SUPPLIERS’ LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE AFFECTED SOFTWARE. YOU ACKNOWLEDGE AND AGREE THAT THIS PROVSION REFLECTS A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES.
- COMPLIANCE WITH LAW.You agree to use the Software solely in accordance with, and within the limits permitted by, applicable laws, rules, regulations and orders.
- U.S. Government End User Purchasers.The Software and any other vCloudPointsoftware covered under this EULA are “commercial items” as that term is defined at 48 C.F.R. 2.101; consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and any other vCloudPoint software and documentation covered under this EULA with only those rights set forth herein.
- JURISDICTION AND DISPUTES.Except as otherwise set forth in Attachment A (if applicable), of this EULA, including all revisions and amendments thereto, is governed by and construed in accordance with the laws of the Republic of Korea, without regard to its conflict or choice of law principles. Notwithstanding any choice of law provision or otherwise, and the United States Uniform Computer Information Transactions Act the United Nations Convention on the International Sale of Goods shall not apply.
- ARBITRATION.Except as otherwise set forth in Attachment A (if applicable), , Customer unconditionally consents and agrees that: (i) any claim, dispute or controversy (whether in contract, tort, or otherwise) Customer may have against vCloudPointor its officers, directors, agents and employees arising out of, relating to, or connected in any way with the Software or this EULA (including its existence, validity or termination), will be finally resolved by arbitration to be held in Guangzhou, China and conducted in Chinese under the Rules of Arbitration of the International Chamber of Commerce provided, however, that each party may enforce its or its Affiliates’ (defined below) intellectual property rights in any court of competent jurisdiction, including but not limited to equitable relief. The arbitral award shall be final and binding on the parties. Except to the extent entry of judgment and any subsequent enforcement may require disclosure, all matters relating to the arbitration, including the award, shall be held in confidence. For purposes of this EULA, Affiliate means, any corporation or other entity that is controlled by, or is under common control with a party (a corporation or other entity shall be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest of the corporation or entity).
- EXPORT. Software and Documentation, including any technical data provided by vCloudPointhereunder, may be subject to export, re-export or import control laws under the country of origin, destination or use, including regulations under such laws. Customer shall comply fully with all international and national laws and regulations that apply to the Software and Documentation and to Customer and Customer Representative’s use thereof, including, but not limited to, the ChinaExport Administration Regulations, end-user, end-use and destination restrictions issued by U.S. and other governments. Without limiting the generality of the foregoing, Customer expressly agrees that Customer shall not, and shall cause Customer Representative to agree not to, export, directly or indirectly, re-export, divert, or transfer the Software and Documentation or any technical data thereof to any destination, company or person restricted or prohibited by Chinese laws or regulations or laws or regulations of any other applicable jurisdiction. Customer represents and warrants that (i) Customer is not located in a country that is subject to a Chinese Government embargo, or that has been designated by the Chinese Government as a “terrorist supporting” country; and (ii) Customer are not listed on any Chinese Government list of prohibited or restricted parties.
- ASSIGNMENT. You may not transfer, assign or delegate any of your rights or obligations under this EULA, in whole or in part, whether voluntarily, by operation of law, by merger or sale of all or substantially all your stock or assets, or otherwise, without the prior written consent of vCloudPoint. Any purported transfer, assignment, or delegation by You without such prior written consent shall be null and void. vCloudPointhas the right to transfer, assign or delegate any of its rights or obligations under this EULA to one or more third parties without Your consent, including through reorganization, reincorporation, merger, change of control, or a sale of all or substantially all of vCloudPoint’s stocks or assets. Subject to the foregoing, this EULA shall bind and inure to the benefit of each party’s successors and permitted assigns.
- NO WAIVER. Any waiver of any right or remedy by vCloudPointis not valid and effective, unless, and to the extent that it is express and in writing that states such right and remedy to be waived. Selection by vCloudPointof a specific remedy does not constitute, and shall not be interpreted to constitute, a waiver of any other remedy of vCloudPoint, and vCloudPoint’s failure to select a specific remedy does not constitute, and shall not be interpreted to constitute, a waiver of such remedy.
- SEVERABILITY. Should any section, or portion thereof, of this EULA be held invalid by reason of any law existing now or in the future in any jurisdiction by any court of competent authority or by a legally enforceable directive of any governmental body, such section or portion thereof shall be validly reformed so as to approximate the intent of the parties as nearly as possible and, if unreformable, shall be deemed divisible and deleted with respect to such jurisdiction; this EULA shall not otherwise be affected.
- INTEGRATION. This EULA constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements, oral or written, between the parties, and is intended as a final expression of their agreement, regarding the subject matter of this EULA other than any document expressly incorporated herein by reference. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this EULA.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
LOCAL TERMS AND CONDITIONS – United States of America
The following terms apply to Customer with its principal offices within United States of America or is a resident of the United States of America or to the extent that the laws of the United States of America apply to Customer’s use of the Software.
This Agreement and Customer’s relationship with vCloudPoint shall be governed and construed in accordance with the laws of the state of California, without regard to its conflict of law provisions. Subject to vCloudPoint’s right to seek injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, Customer unconditionally consents and agrees that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) Customer may have against vCloudPoint or the officers, directors and employees of vCloudPoint and its subsidiaries or Affiliates (all such individuals and entities collectively referred to herein as the “vCloudPoint Entities”) arising out of, relating to, or connected in any way with the Software or this EULA (including its existence, validity or termination) or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS or another mutually-acceptable alternative dispute resolution provider (“Arbitration Tribunal”) and conducted in the United States before a sole arbitrator in accordance with the rules of the Arbitration Tribunal; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce in the United States, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitrator’s decision shall be controlled by this Agreement and any of the other agreements referenced herein that the applicable Customer may have entered into in connection with the Software; (4) the arbitrator shall honor claims of privilege recognized at law; (5) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only Customer’s and/or the applicable vCloudPoint Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (6) the arbitrator shall not have the power to award punitive, exemplary, special or consequential damages against Customer or any vCloudPoint Entity; (7) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any vCloudPoint Entity exceed $125 USD, and Customer is unable (or not required under the rules of the Arbitration Tribunal) to pay any fees and deposits that exceed this amount, vCloudPoint agrees to pay them and/or forward them on Customer’s behalf, subject to ultimate allocation by the arbitrator. In addition, if Customer is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, vCloudPoint will pay as much of Customer’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (8) with the exception of subparts (5) and (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of the Arbitration Tribunal, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (5) or subpart (6) is found to be invalid, unenforceable or illegal, then if vCloudPoint so elects, the entirety of this arbitration provision shall be null and void, and neither Customer nor vCloudPoint shall be entitled to arbitrate their dispute.
LOCAL TERMS AND CONDITIONS – Europe
The following terms apply to any Customer with its principal offices or residence within the European Economic Area (EEA) or European Union, or Switzerland, Iceland, Montenegro, Serbia, Kosovo, Albania, Bosnia & Herzegovina, Macedonia, San Marino, Monaco, Vatican City, the Channel Islands, the Isle of Man, overseas departments of France, or the Faeroe Islands:
- Despite paragraph 17 of this Agreement, this Agreement and Customer’s relationship with vCloudPointshall be subject to the laws and jurisdiction of the state listed above in which you have your principal offices or, if you are not a business, the state listed above where you are resident.
- Despite any term of this Agreement in paragraph 4 or elsewhere to the contrary, and to the extent required by Directive 91/250/EEC (as amended) on the legal protection of computer programs as implemented in your jurisdiction, for the time while you have the right to use the Software you have the right to:
2.1 make a back-up copy to the extent that it is necessary to do so to use the Software;
2.2 observe, study or test the functioning of the Software in order to determine the ideas and principles which underlie any element of the program if you do so while performing any of the acts of loading, displaying, running, transmitting or storing the program which you are entitled to do; and
2.3 disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the Software but in either case only to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Software with another software program (ii) is not unnecessarily disclosed or communicated to any third party without the our prior written consent; and (iii) is not used to develop, produce or market any software which is substantially similar to the Software or for any other act which infringes copyright.
- Nothing in this EULA (in particular paragraphs 13 and 14) shall exclude or limit, or be taken as seeking to exclude or limit, any liability which the applicable law does not permit to be excluded, or, as the case may be, limited but only to the extent that such exclusion or limitation is not permitted or would make the EULA unenforceable. Depending on the applicable law, this may include willful misconduct, gross negligence, death or injury caused by negligence, fraud, fraudulent misrepresentation or warranties as to ownership which cannot be excluded by law.
- Despite paragraph 17, the place of Arbitration shall be London, England.
COLLECTED INFORMATION AND THE REASONS
- Automatically Collected Information:
- For registration & validation when internet is available: If the Server Device is provided with internet connectivity, information about the Server Device hardware and software will be automatically collected and sent to vCloudPointfor used for fraud prevention, security purposes, warranty registration, and support services. This information can include, but is not limited to, serial numbers of motherboard, hard disk, video card and other hardware devices of the Server Device that may have unique identifiers, IP address, system version & SID, system times & zones, and serial numbers of the connected Client Device(s).
1.2 For Software installation: During Software installation, system version and language of the Server Device will be detected to verify if the Software is compatible with the system and identify the preferred user’s language as the Software is multilingual.
1.3 For updates & notifications: vCloudPoint may make use of Internet-based services in the Software to deliver to you updates and/or important notifications in connection with the Software. In this process, the current system version and the Software version will be detected.
- Manually Generated Information:
2.1 For registration & validation when internet is unavailable: If internet connectivity is not provided to the Server Device on which the Software is installed, vCloudPoint requires a file to be sent to vCloudPoint used for fraud prevention, security purposes, warranty registration, and support services in the manner described in the user manual or prompted by the Software. The file includes the same information as mentioned as the registration and validation when internet is available.
2.2 For maintenance & support: vCloudPoint may collect and use computer information generated manually at the Software, including, but not limited to, error reports, connection logs and other reports related to the Software and its usage and maintenance, to improve vCloudPoint’s software and services.
- Embedded Content:
The Software interface embeds a web viewer in the menu name of “Add-ons” which directly links to a webpage of vCloudPoint company website for you to access additional resources. The website contains links to other third-party websites. Embedded web viewer behaves in the exact same way as if you run a web browser. The web viewer will automatically direct you to the vCloudPoint website when you access the relating menu page at the Software with internet connection. Please be aware that vCloudPoint’s website provides links to other third-party websites. Even if the third party is affiliated with vCloudPoint through a business partnership or otherwise, vCloudPoint is not responsible for the privacy policies or practices or the content of such external links. These links are provided to you for convenience purposes only and you access them at your own risk.
USER INFROMATION NOT COLLECTED
vCloudPoint will NOT collect any personally identifiable information or personally sensitive data through the Software. There is NO input/ output movement tracking or user data retrieving and accessing with the Software. All types of information which have no interaction with the products of vCloudPoint are NOT collected, including:
- Contact and Account Information:Name, employer, title, email address, physical address, phone number, and similar contact information, usernames and passwords.
- Payment Information:Credit card number, banking information and billing address.
- Demographic Information:Employment status, health, occupation, region, gender, race and age.
- Interest and behaviors:Travel information, scheduling information, interests, preferences.
- Media and Files:Pictures, videos, audio recordings, documentations, user data and metadata.
- And others.
DISCLOSURE OF USER INFORMATION
Independent of your location of residence, a new section C. is added to the provisions of the End User License Agreement.
In order to fulfill the requirements of the applicable data protection laws, concerning the functionalities of the Software as well as the Client Devices the parties, until further notice, agree on the following regulations concerning commissioned (data) processing which supplement the EULA. The details of the data processing are described in Annex 1.
- RIGHTS AND OBLIGATIONS OF vCloudPoint
2.1 Compliance with Applicable Laws. The obligations of vCloudPoint shall arise from this Agreement and the applicable laws. The applicable laws shall particularly include the Personal Information Protection Law of the People’s Republic of China (PIPLPRC) and the General Data Protection Regulation (“GDPR”).
2.2 Processing on Instructions Only. vCloudPoint shall only process personal data within the scope of this Section C and on documented instructions from you mutually agreed by the parties in the EULA and the Performance Specification. Customer may issue additional instructions to the extent required in order to comply with the applicable data protection laws, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by the law to which vCloudPoint is subject; in such a case, vCloudPoint shall inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. vCloudPoint shall ensure that this also applies for any persons granted access to personal data.
2.3 Obligation of Confidentiality. vCloudPoint shall ensure and provide verification upon request that those persons authorized to process personal data have committed themselves to confidentiality, unless they are subject to a statutory obligation of confidentiality.
2.4 Security Measures Pursuant to Art. 32 GDPR
2.4.1 Principle. vCloudPoint declares that it will implement the necessary measures for the security of processing according to Art. 32 of the GDPR (collectively, the “Security Measures”).
2.4.2 Scope. For the concrete commissioned processing, a level of security appropriate to the risk for the rights and freedoms of the natural persons who are the subject of the processing shall be guaranteed. In this regard, the protection objectives of Art. 32(1) of the GDPR, especially the confidentiality, integrity, availability and resilience of the processing systems and services in terms of the nature, scope, context and purposes of the processing shall be taken into account in such a way that any risks shall be mitigated permanently through appropriate security measures.
2.4.3 Data Protection Concept. The data protection concept describes in detail the selection of security measures. Please contact us to receive a copy of our security measures.
2.4.4 Procedure for Reviewing. The data protection concept describes the procedures for regularly reviewing, assessing and evaluating the effectiveness of the security measures. Please contact us to receive a copy of our security measures.
2.4.5 Changes. The Security Measures are subject to technical progress and further developments. vCloudPoint shall be permitted in principle to implement alternative adequate measures. The level of security may thereby not fall below the level existing prior to this Agreement on the basis of the Security Measures already implemented or to be implemented.
2.5 Engagement of Additional Processors. The obligations of vCloudPoint when engaging additional processors (“Sub-contractors”) are regulated in clause 3.
2.6 Assistance with Safeguarding the Rights of Data Subjects. vCloudPoint shall assist you by appropriate technical and organizational measures, insofar as this is possible, in fulfilling its obligations to respond to rights to rectification, deletion or blocking according to the PIPLPRC or requests for exercising the data subject’s rights laid down in Chapter III of the GDPR. If a data subject should directly contact vCloudPoint for the purposes of exercising the data subject’s rights, vCloudPoint shall forward this request to you without delay. All costs incurred insofar shall be born by you and shall be refunded at an hourly rate of 70 Euro to the extent permissible under applicable data protection law.
2.7 Assistance with Ensuring Compliance with Art. 32 – 36 GDPR. Taking into account the nature of processing and the information available to vCloudPoint, vCloudPoint shall assist you in ensuring compliance with the obligations pursuant to Art. 32 – 36 GDPR, in particular with respect to the security of the processing, data protection impact assessments and consultation of supervisory authorities. All costs incurred insofar shall be born by you and shall be refunded at an hourly rate of 70 Euro to the extent permissible under applicable data protection law. vCloudPoint shall provide you with the information required for the preparation of the list of processing operations.
2.8 Deletion and Return at the End of Processing. At your choice, vCloudPoint shall delete or return the personal data that is the object of the commissioned data processing, unless the law to which vCloudPoint is subject re-quires storage of the personal data.
2.9 Information to Demonstrate Compliance with Data Protection Obligations and Inspections. vCloudPoint shall make available to you all information necessary to demonstrate compliance with the obligations resulting from clauses 2 and 3. In the event of any failure to provide such information or audit reports, vCloudPoint will regularly, at least every 18 months, make available certificates of regular audits by a recognized auditor. vCloudPoint allows for and contributes to additional audits, including inspections, conducted by you or another auditor mandated by the Customer; the costs for such additional audits shall be born by you except in case vCloudPoint’s certificate gives substantial rise to concerns of non-compliance.
2.10 Obligation to Notify Doubts About Instructions. vCloudPoint shall immediately inform you if, in its opinion, the execution of an instruction could infringe any applicable data protection laws.
2.11 Obligation to Notify Breaches. If vCloudPoint detects any breaches of applicable data protection laws, this Agreement, instructions of you relating to the data processing, or instructions of the data protection officer, vCloudPoint shall notify you without undue delay.
2.12 Designation of a Data Protection Officer. vCloudPoint has designated a data protection officer.
2.13 Disclosure or Publication of Appropriate or Suitable Safeguards for Transfers to a Third Country. vCloudPoint agrees to disclose or publish information on the appropriate or suitable safeguards that have been used to make a transfer to a third country to the extent that this is required under Art. 13(1) f) or 14(1) f) of the GDPR in order to inform the data subject.
3.1 Subcontractors Engaged Upon Conclusion of the Agreement. vCloudPoint has engaged a number of Subcontractors, and a list is available upon request. You shall treat the list of Subcontractors as a confidential business secret and shall not disclose it to third parties.
3.2 Additional Subcontractors. If vCloudPoint would like to engage additional or different Subcontractors to render the contractually agreed services, such Subcontractors shall be select-ed using the due care required by law. vCloudPoint shall give the data exporter prior notice of the appointment of any new Subcontractors 15 days in advance. You may object against the instruction of the new Sub-contractors on reasonable grounds. In case an understanding cannot be reached, vCloudPoint is entitled to terminate the EULA with 2 weeks notice.
3.3 Obligations of Subcontractors.
3.3.1 Structuring Contracts According to the Requirements of the Agreement. vCloudPoint shall structure the contracts with Subcontractors in such a way that they comply with the requirements of the applicable data protection laws and this Agreement.
3.3.2 Engagement of Additional or Different Subcontractors. vCloudPoint shall obligate any Subcontractors to commit in particular to refraining from engaging any additional or other Subcon-tractors to process personal data without complying with sec.3.2.
3.3.3 Checking Safeguards of Subcontractors. vCloudPoint will examine whether sufficient safeguards will be provided to implement appropriate technical and organizational measures in such a way that the applicable data protection laws and this Agreement are complied with.
Annex 1: Details of the Data Processing According to Section C.
- The object of the data processing arises from the EULA.
- The duration of the data processing shall depend on the term of the EULA.
- Nature and Purpose of the Processing. vCloudPointshall process all personal data solely for the purposes of enabling the use of the products and services provided under the EULA and according to documented instructions on behalf of the Customer.
- Type of Personal Data. The following types of personal data shall be processed:
4.1 Your Information.
4.1.1 Your Name.
4.1.2 Contact information such as company name, job title, email, telephone and postal address.
4.1.3 Payment token – vCloudPoint uses an external payment service provider and payments made in relation to an Account are identified through a token. vCloudPoint therefore does not collect or process personal data associated with bank or payment card de-tails.
4.2 User Information. Personally identifiable information collected and processed to enable product operation functionality depends on your application as summarized in Table 1.
4.3 Computer Information. Computer information including error logs & connection reports, unique identifiers of device, system and Software collected and processed to help fixing technical issues depends on your application as summarized in Table 1.
Table 1 – Personal Information processed in Products
|Profile Picture (optional)||No||No||No||Yes|
|Logs & Reports||No||No||No||Yes|
|System & Software Identifiers||Yes||Yes||Yes||Yes|