General Terms and Conditions
1. CleverOcean: Terms & Conditions
Last Modified: January 30, 2019
This CleverOcean Agreement (the “Agreement”) is between CleverOcean, and the Customer or End User, as applicable. This Agreement governs access to and use of the CleverOcean software and services (the “Services”). In addition to this agreement, there is a “Contract” that when combined with the Agreement constitutes the complete contractual relationship between the Customer and CleverOcean (hereinafter jointly referred to as “The Parties”).
“Customer” is the organization that is agreeing through its legal representative to these terms either electronically or by signing a contract for the Services in whatever form. If you are agreeing to this Agreement for use by an organization, you are agreeing to this Agreement on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise, you must not sign up for the Software or Services.
“End User” is the individual who is provided with a user name and login credentials to use the service agreed by the customer. If you are using the Services as an End User, then by agreeing electronically or using CleverOcean’s software or services you agree to the CleverOcean Terms of Service contained in this agreement. Please take note that in this Agreement, you are agreeing that your Administrator may be able to control account information and access to your CleverOcean account.
Software as a Service “SaaS” – a fully cloud-based service to deliver CleverOcean’s solution which would require the transfer of Customer data to a cloud-based host controlled by CleverOcean. CleverOcean can deliver its services either as SaaS or installed “On Premises”, that is installed on customers’ systems.
In the latter case, the customer may choose between solely having its configuration on-premises, in which case CleverOcean employees need administrative access to the customer network to carry out its support services, or CleverOcean can host the configuration and automatically synchronize it with the customer copy of the solution.
Where clauses only apply for the SaaS delivery of services case, they are marked with (SaaS).
“Contract” is the document outlining the commercial terms including but not exclusive to, price, delivery times, support obligations, and service definition.
“Customer Data” means any data or information legally provided by the Customer or End Users as designated by the Customer electronically for the use of the Service.
“Third Party Applications” means any Web-based or offline software application that is provided by You or a third party and interoperates with the Service, including, for example, an application that is developed by or for the Customer.
3. CleverOcean Obligations
Provision of “Services” as outlined in the “Contract” that the Customer may access and use the Services made available by CleverOcean
3.1 Facilities and Data Security (SaaS)
Where the Services agreed in the Contract are SaaS, CleverOcean will use commercially reasonable efforts to ensure that all facilities used to store and process Customer Data meet commercially reasonable security standards. By using the Services, Customer consents to transfer, processing, and storage of Customer Data.
3.2 Modifications to the Services
CleverOcean may update the Services from time to time. If CleverOcean changes the Services in a manner that materially alters or reduces their functionality, CleverOcean will inform the Customer at least 8 days in advance.
3.3 Limitations on Use of Services (SaaS)
CleverOcean may impose reasonable limitations on bandwidth usage for the Services.
Support will be carried out by CleverOcean as explicitly stated in the Contract, otherwise, the Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to the use of the Services. Customers will use reasonable efforts to resolving support issues before escalating them to CleverOcean.
4. Customer Obligations
Customers will use the Services in compliance with the CleverOcean Terms of Service. Customer will obtain and maintain any consents from End Users to allow Administrators to engage in the activities described in this Agreement and to allow CleverOcean to provide the Services. The customer represents and must ensure, that its End Users are governed by this Agreement.
4.2 Customer Administration of the Services
Customers may specify End Users as “Administrators” through the administrative console. The customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrator use of the Services complies with this Agreement. CleverOcean’s responsibilities do not extend to the internal management or administration of the Services for Customer.
4.3 Unauthorized Use & Access
The customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of the Services. The customer will promptly notify CleverOcean of any unauthorized use of, or access to, the Services.
4.4 Restricted Uses
Customer will not (i) sell, resell, or lease the Services or (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury. Customer, not CleverOcean, is responsible for any applicable vertical or industry-specific regulation compliance.
5. End User Obligations
Accounts – an End User may join with credentials provided by the Customers’ administrator. It’s important to note that an End User’s account as part of a CleverOcean account, is subject to the Administrator’s control. End Users must use the Services in compliance with any employment obligations and the Customer’s terms and policies.
5.2 Administrator Control
An End User’s Administrator may have the ability to access, disclose, restrict, or remove information in or from an End User’s CleverOcean account. Administrators may also have the ability to monitor, restrict, or terminate access to an End User’s CleverOcean account.
6. Third-Party Requests
“Third-Party Request” means a request from a third party for records relating to an End User’s use of the Services including information in or from an End User or Customer CleverOcean account. Third-Party Requests may include valid search warrants, court orders, subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.
The customer is responsible for responding to Third-Party Requests via its own access to information. The customer will seek to obtain information required to respond to Third-Party Requests and will contact CleverOcean only if it cannot obtain such information despite diligent efforts.
CleverOcean will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-Party Request, to: (i) promptly notify Customer of CleverOcean’s receipt of a Third-Party Request; (ii) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third Party-Request; and (iii) provide Customer with information or tools required for Customer to respond to the Third-Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third-Party Request, then CleverOcean may, but will not be obligated to do so.
7.1 Of End User Accounts by CleverOcean (SaaS)
If an End User (i) violates this Agreement or the CleverOcean Terms of Service; (ii) uses the Services in a manner resulting in excessive support requests, or (iii) uses the Services in a manner that CleverOcean reasonably believes will cause it liability, then CleverOcean may request that Customer suspend or terminate the applicable End User account. If the Customer fails to promptly suspend or terminate the End User account, then CleverOcean may do so.
7.2 Security Emergencies
Notwithstanding anything in this Agreement, if there is a Security Emergency then CleverOcean may automatically suspend the use of the Services. CleverOcean will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services, and (ii) unauthorized third-party access to the Services.
8. Intellectual Property Rights
8.1 Reservation of Rights
This agreement does not grant CleverOcean any rights to customers’ or end users’ files or the intellectual property rights embodied in those files except for the limited rights expressly set forth in this agreement that are needed to run the services. This Agreement does not grant Customer or End Users (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the CleverOcean trademarks, logos, domain names, or other brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
8.2 Limited Permission
CleverOcean may need Customer permission to do things that the Customer or End User asks CleverOcean to do with CleverOcean accounts, for example, hosting files, or sharing them at the Customer or End User’s direction. This includes product features visible to the Customer or End User, for example, image thumbnails or document previews. It also includes design choices made to technically administer the Services, for example, how the Service redundantly backs up data to keep it safe. Customer grants CleverOcean the permissions CleverOcean needs to do those things solely to provide the Services and for CleverOcean to meet its obligations and exercise its rights under this Agreement. This permission also extends to third parties CleverOcean works with to provide the Services, for example, the hosting service, which provides CleverOcean’s storage space (again, only to provide the Services).
8.3 Customer List
CleverOcean may include the Customer’s name in a list of CleverOcean customers on the CleverOcean website.
8.4 Third-Party Services
If Customer uses any third-party service with the Services, (a) the service may access or use Customer’s or End User’s information; (b) CleverOcean will not be responsible for any act or omission of the third party, including the third party’s use of Customer’s or End User’s information; and (c) CleverOcean does not warrant or support any service provided by the third party.
The services are provided “as is.” to the fullest extent permitted by law, except as expressly stated in this agreement, neither CleverOcean nor the customer makes any warranty of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, or non-infringement. CleverOcean makes no representations about any content or information in or from an end user or customer services account. CleverOcean is not responsible for the accuracy, completeness, appropriateness, or legality of files, user posts, or any other information in or from an End User or Customer Services account. CleverOcean has no responsibility or liability for the deletion or failure to store any information in or from an End User or Customer Services account.
9. Fees & Payment
9.1 Fees as outlined in the Contract
The customer will pay and authorizes CleverOcean to charge using Customer’s selected payment method, for all applicable fees. Fees are non-refundable except as required by law. The customer is responsible for providing complete and accurate billing and contact information to CleverOcean. CleverOcean may suspend or terminate the Services if fees are 30 days past due.
The customer is responsible for all taxes. CleverOcean will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide CleverOcean with an official tax receipt or other appropriate documentation.
10. Term & Termination
This Agreement will remain in effect until Customer’s Contract for the Services expires or is terminated, according to the terms stated in the Contract.
10.2 Termination for Breach
Either CleverOcean or Customer may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
10.3 Effects of Termination
If this Agreement terminates: (i) the rights granted by CleverOcean to Customer will cease immediately (except as set forth in this section); (ii) the rights granted by CleverOcean to End User will cease immediately. This Agreement will automatically terminate on the occurrence of any of the following events: (a) bankruptcy or insolvency of either Party; or (b) sale of the business of either Party.
The following sections will survive expiration or termination of this Agreement: Administrator Control, Third Party Requests, Intellectual Property Rights, Disclaimers, Fees & Payment, Effects of Termination, Indemnification, Limitation of Liability, and Miscellaneous.
10.4 Effects of Termination (SaaS)
If this Agreement terminates: (i), CleverOcean may provide Customer access to its account at then-current rates so that Customer may export its information; and (ii) after a commercially reasonable period of time, CleverOcean may delete any data relating to Customer’s account.
10.5 Required Actions following Termination
CleverOcean shall on termination return all material to Customer and shall assist Customer in collecting, copying, and retaining material and information belonging to Customer.
Customers must seize any use of CleverOcean’s services and must uninstall all versions of CleverOcean’s software.
11.1 By Customer
Customer will indemnify, defend, and hold harmless CleverOcean from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement or Acceptable Use Policy; or (iii) use of the Services by Customer’s End Users.
11.2 By CleverOcean
CleverOcean will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a claim by a third party against Customer to the extent based on an allegation that CleverOcean’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, patent, or trademark right of the third party. In no event will CleverOcean have any obligations or liability under this section arising from: (i) the use of any Services in a modified form or in combination with materials not furnished by CleverOcean, and (ii) any content, information, or data provided by Customer, End Users or other third parties.
11.3 Possible Infringement
If CleverOcean believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then CleverOcean may: (i) obtain the right for Customer, at CleverOcean’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If CleverOcean does not believe the options described in this section are commercially reasonable then CleverOcean may suspend or terminate Customer’s use of the impacted Services (with a pro-rata refund of pre-paid fees for the Services).
The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) the other party may join in the defense with its own counsel at its own expense. The indemnities above are CleverOcean and the customer’s only remedy under this agreement for violation by the other party of a third party’s intellectual property rights.
12 Limitation of Liability
Limitation on Indirect Liability. Except for CleverOcean or the customer’s indemnification obligations, neither CleverOcean nor the customer will be liable for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, even if the party knew or should have known that such damages were possible and even if direct damages do not satisfy a remedy.
13. Limitation on Amount of Liability
leverOcean’s aggregate liability under this agreement will not exceed the lesser of €100,000 or the amount paid by the customer to CleverOcean hereunder during the twelve months prior to the event giving rise to liability.
14.1 Terms Modification
CleverOcean may revise this Agreement from time to time and the most current version will always be available on request. If a revision, in CleverOcean’s sole discretion, is material, CleverOcean will notify you (for example to the email address associated with the applicable account). Other revisions may be posted to CleverOcean’s blog or terms page, and you are responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may cancel the Services. If the revision is material and Customer cancels before the effective date of the revision, CleverOcean will refund a pro-rated amount of any fees Customer paid in advance for the Services for the unused portion of the term. If the End User does not agree to the revised Agreement terms, the End User must stop using the CleverOcean services. Customers may grant approvals, permissions, extensions, and consents by email.
14.2 Entire Agreement
The Agreement, including the Contract with CleverOcean, constitutes the entire agreement between you and CleverOcean with respect to its subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Contract, the Agreement.
14.3 Governing Law
Any dispute between CleverOcean and the Customer is governed by Swedish law, excluding however such non-mandatory conflict of law rules that appoint the laws of another country to apply.
Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
Notices may be sent to the applicable account email address, and are deemed given when sent. Notices to the email provided in the Contract for CleverOcean.
A waiver of any default is not a waiver of any subsequent default.
Either of The Parties may not assign or transfer any part of this Agreement without the written consent of the other Party, except the other Party may assign this Agreement to an affiliate or in connection with a merger or corporate reorganization without providing written notice. Any other attempt to transfer or assign is void.
14.8 No Agency
CleverOcean and Customer are not legal partners or agents but are independent contractors.
14.9 Force Majeure
Neither CleverOcean nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
14.10 No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.