LAST UPDATED: [15th September 2020]
These Terms of Service set out the terms and conditions upon which you may use the Cloud Maker Service (as defined below) and any application or functionality Cloud Maker makes available through the Cloud Maker Service.
By using the Cloud Maker Service or signing an Order Form (as defined below), you agree to and accept the Terms of Service and (where applicable) the Order Form. If you are accepting the Terms of Service and Order Form on behalf of an entity, by using the Cloud Maker Service or signing an Order Form you represent and warrant that you are authorised to enter into the Agreement on behalf of that entity and to legally bind that entity.
1. INFORMATION ABOUT CLOUD MAKER
The Cloud Maker Service is provided by Certain Six Limited t/a Cloud Maker ("Cloud Maker"), a company incorporated and registered in England and Wales under company number 10748501, whose registered office is at 9th Floor 107 Cheapside, London, United Kingdom, EC2V 6DN.
2.1 In the Agreement, save where the context requires otherwise, the following words and expressions have the following meaning:
"Account" means the Customer's account on the Cloud Maker Service;
"Agreement" means the agreement between the Customer and Cloud Maker comprising the Order Form (if any) and these Terms of Service (including the Data Processing Addendum) for the provision of the Cloud Maker Service;
"Authorised User" means any person authorised by the Customer to access and use the Cloud Maker Service on behalf of the Customer;
"Business Day" means a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business;
"Cloud Maker Service" means the DevOps cloud-enablement platform operated by Cloud Maker, which Cloud Maker makes available as a service through the Website, and includes the Integration API;
"Commencement Date" means the date from which the Customer first accesses the Cloud Maker Service, or (where applicable) the date from which the Customer may access the Cloud Maker Services as set out in the Order Form;
"Confidential Information" means information which is identified as confidential or proprietary by either party, or by the nature of which is clearly confidential or proprietary, including the content of the Agreement;
"Customer" means the person accepting this Agreement, or (where applicable) the person identified in the Order Form;
"Customer Cloud Environment" means the third party cloud services and systems used by the Customer in connection with the Customer's use of the Cloud Maker Service;
"Customer Data" means the content and data that the Customer or any Authorised User or End User makes available to Cloud Maker in connection with their use of the Cloud Maker Service, and which is used by Cloud Maker in connection with the provision of the Cloud Maker Service;
"Data Processing Addendum" or "DPA" means the Cloud Maker data processing addendum accessible here which is hereby incorporated into these Terms of Service by reference;
"End User" means any customer of the Customer who is authorised by the Customer to use the Cloud Maker Service as set out in clause 4.14.1(b);
"Integration API" means the Cloud Maker application programming interface that provides access and visibility into the Cloud Maker Service for the purpose of programmatically using the Cloud Maker Service functionality;
"Order Form" means the order form signed (whether electronically or otherwise) by the parties, and which, amongst other things, sets out the details of the Customer and the Term;
"Subscription Fees" means Cloud Maker's standard rates as notified by Cloud Maker to the Customer in writing, or such other amount that the parties may agree in writing from time to time (including in an Order Form), relating to the provision of the Cloud Maker Service;
"Term" has the meaning given in clause 3;
"Terms of Service" means these terms and conditions of service;
"Third Party Sites" has the meaning given in clause 5.3;
"Tracking Code" means software code which may be used by Cloud Maker to track the Customer's usage of the Cloud Maker Service;
"Usage API" means an application programming interface that provides access and visibility into activity consumption across products and services;
"VAT" means value added tax;
"Virus" means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including works, Trojan horses, viruses and other similar things or devices; and
"Website" means https://cloudmaker.ai or such other website as notified by Cloud Maker from time to time.
2.2 In the Agreement, unless the context otherwise requires:
(a) clause, Schedule and paragraph headings are inserted for ease of reference only and shall not affect the interpretation of the Agreement;
(b) the Schedules form part of the Agreement and shall have effect as if set out in full in the body of the Agreement, and any reference to the Agreement includes the Schedules;
(c) a reference to a "person" includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives;
(d) any words following the terms "including", "include(s)", "in particular" or "for example" or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and
(e) a reference to a statute, statutory provision, or any subordinate legislation made under a statute, is a reference to those provisions as respectively amended, consolidated, extended or re-enacted from time to time;
(f) in case of any discrepancy or inconsistency between the Order Form and the Terms of Service (excluding the Data Processing Addendum), the provisions of the Order Form shall prevail to the extent of the conflict; in the case of any discrepancy or inconsistency between the Data Processing Addendum, the remainder of the Terms of Service, and the Order Form, the provisions of the Data Processing Addendum shall prevail to the extent of the conflict; and
(g) references to "days" and "months" are to calendar days and calendar months, unless expressly stated otherwise.
The Agreement will commence on the Commencement Date and continue for consecutive monthly periods, unless (a) either party gives at least thirty (30) days' written notice to the other party to terminate the Agreement, in which case the Agreement will terminate at the end of the month in which the notice expires (or at the end of any other billing period as agreed by the parties in writing), or (b) the Agreement is terminated in accordance with clause 9.7 or clause 11 (the "Term").
4. ACCESS TO THE CLOUD MAKER SERVICE
4.1 Cloud Maker grants the Customer a non-exclusive, non-transferable, personal and non-sub-licensable right during the Term:
(a) to access and use, and permit Authorised Users to access and use, the Cloud Maker Service solely in relation to the internal business of the Customer; and
(b) where agreed in the Order Form (or as otherwise agreed by the parties in writing), to access and use, and permit End Users to access and use, the Cloud Maker Service on behalf of End Users in relation to the internal business of the End User.
4.2 In relation to Authorised Users and End Users, the Customer shall procure that each Authorised User and End User keeps secure and confidential any username and password provided to, or created by, the Authorised User or End User for their access to and use of the Cloud Maker Service, and that they will not disclose such username and password to any third party.
4.3 The Customer must treat any username and password used to access the Cloud Maker Service or the Customer's Account as Confidential Information, and must not disclose such information to any third party (other than to Authorised Users and End Users).
4.4 Cloud Maker may disable the Customer's Account at any time at Cloud Maker's sole discretion if the Customer fails to comply with, or fails to ensure that all Authorised Users and End Users comply with, any provision of the Agreement.
4.5 The Customer is responsible for maintaining the confidentiality of login details for its Account and for any activities that occur under its Account, and for the activities of Authorised Users and End Users.
4.6 The Customer must use "strong" passwords (using a combination of upper- and lower-case letters, numbers and symbols) with its Account, and to encourage Authorised Users and End Users to use strong passwords for their use of the Cloud Maker Service.
4.7 If the Customer has any concerns about the login details for its Account, or thinks any of them may have been misused, the Customer shall promptly notify Cloud Maker at [email protected].
4.8 The Customer must immediately notify Cloud Maker if it becomes aware that the login details of any Authorised User or End User are stolen, lost, or are otherwise compromised.
4.9 As between Cloud Maker and the Customer, the Customer is responsible for making all arrangements necessary for Authorised Users and End Users to gain access to the Cloud Maker Service.
4.10 The Customer is responsible for ensuring that all Authorised Users and End Users are aware of the terms of the Agreement and act in compliance with them.
4.11 The Customer must prevent any unauthorised access to, or use of, the Cloud Maker Service, and must promptly notify Cloud Maker in the event of any such unauthorised access or use.
4.12 The Customer shall indemnify and defend Cloud Maker, its agents, and contractors, from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyers' fees) arising out of a claim brought by any Authorised User or End User, or any other third party relating to the Customer's use, or any Authorised User's or End User's use, of the Cloud Maker Service (except to the extent caused by Cloud Maker's negligence), including the failure of, or non-availability affecting, the Cloud Maker Service.
5. CUSTOMER'S OBLIGATIONS
5.1 The Customer:
(a) must comply, and ensure that all Authorised Users and End Users comply, with all applicable laws and regulations with respect to their use of the Cloud Maker Service and their activities under the Agreement;
(b) must use, and ensure that all Authorised Users and End Users use, the Cloud Maker Service in accordance with the terms of the Agreement, and shall be responsible for any acts and omissions in connection with the use of the Cloud Maker Service by Authorised Users and End Users;
(c) must ensure that the Customer ends any Authorised User's or End User's right to access and use the Cloud Maker Service if the Authorised User or End User ceases its relationship with the Customer;
(d) must obtain and maintain all necessary licences, consents, and permissions, and provide all notices, that are necessary for Cloud Maker to perform its obligations to the Customer, and for the Customer and Authorised Users and End Users to use the Cloud Maker Service, under the terms of the Agreement;
(e) as between Cloud Maker and the Customer, must ensure that its network and systems, and the network and systems of its End Users, including its internet browser, comply with any relevant specifications provided by Cloud Maker in writing from time to time relating to the use of the Cloud Maker Service;
(f) as between Cloud Maker and the Customer, is solely responsible for procuring and maintaining its and its End Users' network connections and telecommunications links from its systems in order to access and use the Cloud Maker Service;
(g) must not, and shall ensure that any Authorised User or End User does not, (i) access, store, distribute, or transmit any Virus through the Cloud Maker Service, (ii) use the Cloud Maker Service to access, store, distribute, or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing, or racially or ethnically offensive; (iii) use the Cloud Maker Service in a manner that is illegal or causes damage or injury to any person or property; (iv) other than as permitted by this Agreement and/or as required to use and benefit from the full functionality of the Cloud Maker Service (including through use of the Integration API) in accordance with this Agreement, use any automated system, including without limitation "robots", "spiders", or "offline readers", to access the Cloud Maker Service in a manner that sends more request messages to the Cloud Maker Service than a human can reasonably produce in the same period of time by using a conventional online web browser; (v) attempt to interfere with or compromise the integrity or security of the Cloud Maker Service. Cloud Maker reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Customer's Account or access to the Cloud Maker Service by any Authorised User or End User for any breach of any provision of this clause 5.1(g); and
(h) must acknowledge and agree in writing with End Users that (i) Cloud Maker will not be liable for any claim brought by an End User arising from any act or omission by Cloud Maker; (ii) any queries and complaints of an End User must be made to the Customer and not to Cloud Maker; and (iii) Cloud Maker is a third party beneficiary of any agreement between the Customer and End User, and that upon the End User's acceptance of the terms and conditions or other agreement between the Customer and the End User, Cloud Maker will have the right (and will be deemed to have accepted the right) to enforce the agreement against the End User as a third party beneficiary thereof.
5.2 Cloud Maker may monitor the Customer's, and Authorised Users' and End Users', use of the Cloud Maker Service to (a) ensure the quality of, and improve, the Cloud Maker Service; (b) verify the Subscription Fees payable by the Customer; and (c) verify the Customer's, and Authorised Users' and End Users' compliance with the provisions of the Agreement.
5.3 The Cloud Maker Service may contain links to, or call the servers of, third party websites or services that are not under Cloud Maker's control, solely at the direction of and/or as a convenience to the Customer ("Third Party Sites"). As such, Cloud Maker is not responsible for, and makes no express or implied warranties with regard to, the information, content or other material, products, or services that are contained on or are accessible through, or the policies regarding use and privacy in respect of, Third Party Sites. Access to and use of Third Party Sites, including information, content, material, products, and services on such websites or available through such websites, is solely at the Customer's risk.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Cloud Maker is the owner or licensee of all intellectual property rights in the Cloud Maker Service. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved.
6.2 Except as expressly set out in the Agreement, Cloud Maker does not grant to the Customer any rights to, or licenses in respect of, the Cloud Maker Service.
6.3 The Customer will not, and will ensure that the Authorised Users and End Users do not, when using the Cloud Maker Service:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Cloud Maker Service in any form or media or by any means;
(b) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Cloud Maker Service;
(c) access all or any part of the Cloud Maker Service in order to build a product or service which competes with the Cloud Maker Service or use or attempt to use the Cloud Maker Service to directly compete with Cloud Maker; or
(d) erase or remove any proprietary or intellectual property notice contained in the Cloud Maker Service.
6.4 Subject to the terms of the Data Processing Addendum, the Customer grants Cloud Maker a non-exclusive, sub-licensable licence to access, download and use the Customer Data for the purpose of:
(a) providing the Cloud Maker Service;
(b) analysing the Customer Data in accordance with the Cloud Maker Service functionality;
(c) developing, testing, improving and altering the functionality of the Cloud Maker Service; and
(d) producing anonymised or anonymised and aggregated statistical reports and research.
6.5 The Customer represents and warrants to Cloud Maker that none of the Customer Data violates the Agreement and that the Customer has the necessary right, title, interest and consent to allow Cloud Maker to use the Customer Data in accordance with the Agreement. The Customer shall maintain a backup of Customer Data and Cloud Maker shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Customer Data.
6.6 The Customer grants Cloud Maker permission to incorporate Tracking Code into any solutions developed by the Customer, or by any Authorised User or End User, using the Cloud Maker Service, solely to enable Cloud Maker to calculate the applicable Subscription Fees.
6.7 The Customer grants Cloud Maker permission to connect the Cloud Maker Service to the Usage API of the Customer Cloud Environment, solely to enable Cloud Maker to calculate the applicable Subscription Fees.
6.8 Subject to obtaining the Customer's prior written consent (such consent not to be unreasonably withheld or delayed), Cloud Maker may use the Customer's name, logo, and related trade marks in any of Cloud Maker's publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Customer uses the Cloud Maker Service and alongside any testimonials that the Customer has agreed to give. The Customer hereby grants Cloud Maker such rights as are necessary to use its name, logo, related trade marks and testimonials for the purpose of this clause 6.8.
6.9 The Customer agrees to provide regular feedback to Cloud Maker in relation to its use of the Cloud Maker Service. By submitting feedback, the Customer acknowledges that Cloud Maker may use and allow others to use this feedback in the Cloud Maker Service or otherwise, without any restriction and without payment of any kind to the Customer.
6.10 Cloud Maker shall indemnify and hold harmless the Customer against all costs, expenses, damages and losses (including reasonable lawyers' fees) arising from or in connection with any third party claim made against the Customer that the Cloud Maker Service infringes the intellectual property rights of the third party, provided that the Customer: (a) notifies Cloud Maker promptly in writing upon becoming aware of any such claim; (b) gives Cloud Maker sole control of the defence and/or settlement of the claim; (c) does not make any admission relating to the claim or attempt to settle it; and (d) provides Cloud Maker with all reasonable assistance and information regarding the claim as is required by Cloud Maker. Notwithstanding the foregoing, Cloud Maker shall in no event be liable to the Customer to the extent that the alleged infringement is based on (i) a modification of the Cloud Maker Service by anyone other than Cloud Maker; or (ii) the Customer's (or any Authorised User's or End User's) use of the Cloud Maker Service in a manner contrary to the instructions given to the Customer by Cloud Maker; or (iii) the Customer's (or any Authorised User's or End User's) use of the Cloud Maker Service after notice of the alleged or actual infringement from Cloud Maker or any appropriate authority).
7. DATA PROTECTION
7.1 To the extent that Cloud Maker processes any personal data on behalf of the Customer as a result of the Customer's (or any Authorised User's or End User's) use of the Cloud Maker Service, it shall do so in accordance with the Data Processing Addendum.
7.2 For the purpose of this clause 7, the terms "personal data" and "process" shall have the same meaning as set out in the applicable Data Protection Laws (as defined in the DPA).
8. CONFIDENTIAL INFORMATION
8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
8.2 Each party shall hold the other party's Confidential Information in confidence and, unless required by law, shall not make the other party's Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement.
8.3 Each party shall take all reasonable steps to ensure that the other party's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
8.4 If a party is required to disclose any Confidential Information of the other party by law, regulation, or any governmental, supervisory, or regulatory authority, it must first (before making the disclosure, and to the extent permitted by applicable law) promptly notify the other party of the requirement to make the disclosure and provide the other party with the opportunity to dispute or resist the disclosure at its own cost and expense.
8.5 Each party shall take a backup of its own Confidential Information and shall not be responsible to the other party for any loss, destruction, alteration, or disclosure of Confidential Information.
9. FEES AND PAYMENT
9.1 The Customer will pay the Subscription Fees in accordance with this clause 9, or as otherwise agreed between the parties in writing (in an Order Form or otherwise).
9.2 Cloud Maker will submit by email (to the email address set out in the Order Form or as otherwise notified by the Customer to Cloud Maker in writing) an invoice for the Subscription Fees to the Customer monthly in arrears, and payment will be made in accordance with clause 9.3.
9.3 Unless an alternative payment method is set out in the Order Form or is otherwise agreed by the parties in writing, the Customer will provide to Cloud Maker valid, up-to-date, and complete credit or debit card details on the Commencement Date, or will set up a direct debit payment mechanism with Cloud Maker, and the Customer hereby authorises Cloud Maker to bill such credit or debit card the Subscription Fees on the date of the relevant invoice, in accordance with the Order Form or as otherwise agreed by the parties in writing. The Customer shall promptly notify Cloud Maker of any changes to the Customer's credit or debit card details provided to Cloud Maker.
9.4 If Cloud Maker is not able to access the Customer Cloud Environment's Usage API for any reason, the Customer acknowledges and agrees that Cloud Maker may either: (a) estimate the applicable Subscription Fees payable by the Customer, and charge the Customer for such estimated Subscription Fees in accordance with this clause 9; or (b) calculate the applicable Subscription Fees by incorporating Tracking Code into the Customer's solutions in accordance with clause 6.6, and charge the Customer for the Subscription Fees in accordance with this clause 9.
9.5 If Cloud Maker has not received payment in full by the due date, and without prejudice to any other rights and remedies available to Cloud Maker:(a) Cloud Maker will attempt to complete payment on a daily basis for a period of one (1) week from the due date, and if payment remains outstanding at the end of the week, Cloud Maker may, without liability to the Customer, suspend or temporarily disable all or part of the Customer's access to the Cloud Maker Service. Cloud Maker shall be under no obligation to provide any access to the Cloud Maker Service while the relevant sum remains unpaid; and(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England at the due date for payment of the relevant Subscription Fees, commencing on the due date for payment and continuing until the Subscription Fees have been paid in full, whether before or after judgment.
9.6 All amounts and Subscription Fees stated or referred to in the Agreement:(a) are payable in GBP pound sterling or such other currency as stipulated by Cloud Maker; and(b) are exclusive of VAT unless otherwise expressly stated, which shall be paid at the same time as payment of the Subscription Fees.
9.7 Cloud Maker may increase the Subscription Fees, or may charge a fee for previously-free features of the Cloud Maker Service, upon giving at least sixty (60) days' notice to the Customer, such increase to take effect following the expiry of such notice. If the Customer is unhappy with the increase, the Customer may give notice to terminate the Agreement in accordance with clause 0. The Subscription Fees will not increase during the notice period.
10. AVAILABILITY AND SUPPORT
10.1 Cloud Maker will use commercially reasonable endeavours to make the Cloud Maker Service available with an uptime rate of 98%, except for:(a) planned maintenance for which 24 hours' notice will be given; and(b) unscheduled maintenance during normal business hours (UK time) or otherwise, for which Cloud Maker will use reasonable endeavours to give the Customer notice in advance.
10.2 Cloud Maker will, as part of the Cloud Maker Service, use reasonable endeavours to provide a level of support via email that is appropriate to the nature of any issues requiring support (for example, bug fixes) during normal business hours (UK time), and such support shall be provided at no additional charge to the Customer. The support provided as part of the Cloud Maker Service does not include training regarding how to use the Cloud Maker Service.
10.3 The Customer shall provide all support reasonably required by Cloud Maker to perform its obligations under this clause 10, including providing reasonably detailed descriptions of issues and updates on the performance of the Cloud Maker Service.
11. SUSPENSION AND TERMINATION
11.1 Without prejudice to any other rights or remedies available to Cloud Maker, if the Customer fails to pay any sum due to Cloud Maker and such sum remains outstanding for a further 14 days following notice requiring such sum to be paid, Cloud Maker may immediately terminate the Agreement on giving notice to the Customer, without liability for Cloud Maker to the Customer.
11.2 Without prejudice to any other rights and remedies available to Cloud Maker, Cloud Maker may terminate the Agreement by notice with immediate effect, or such notice as Cloud Maker may in its sole discretion elect to give, if the Customer:(a) infringes Cloud Maker's intellectual property rights in the Cloud Maker Service;(b) is in breach of clause 5.1 or clause 6.3;(c) is in breach of any applicable law.
11.3 Without prejudice to any other rights and remedies available to it, Cloud Maker may immediately suspend the Customer's Account (in whole or in part), and any Authorised User's or End User's right to access and use the Cloud Maker Service, without giving prior notice to the Customer, if:
(a) the Customer is in material or persistent breach of any of the terms of the Agreement;
(b) in Cloud Maker's reasonable determination, the Customer is suspected of being in material breach of any of the terms of the Agreement. For the purposes of this clause 11.3, the parties acknowledge that any breach of clause 6.3 will be a material breach of the Agreement;
(c) the Customer is guilty of any fraud or acts in any manner which in the opinion of Cloud Maker brings or is likely to bring Cloud Maker into disrepute or is materially adverse to the interests of Cloud Maker.
11.4 Without prejudice to any other rights and remedies available to it, either party may terminate the Agreement at any time with immediate effect on giving notice in writing to the other party, if that other party:
(a) is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or, if capable of remedy, the other party fails to remedy the breach within 30 days after receiving written notice requiring it to remedy the breach; or
(b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
11.5 On termination of the Agreement for any reason:
(a) all rights and licenses granted under the Agreement shall immediately terminate and the Customer's right to access and use the Cloud Maker Service will end;
(b) all Authorised Users' and End Users' rights to use the Cloud Maker Service will end; and
(c) each party shall return to the other party or (at the other party's request) destroy, and make no further use of, any Confidential Information (and all copies thereof) belonging to the other party (provided that each party may retain documents and materials containing Confidential Information to the extent required by law or any applicable governmental or regulatory authority); and
(d) all unpaid Subscription Fees for the period up until the effective date of termination will become immediately due and payable.
11.6 Cloud Maker shall permit the Customer to download any Customer Data from the Cloud Maker Service for a period of fourteen (14) days after the expiry or termination of the Agreement. Cloud Maker may thereafter:
(a) delete any Customer Data at any time;
(b) retain Customer Data upon expiry or termination of the Agreement in order to comply with applicable law, or as Cloud Maker may deem necessary to prosecute or defend any legal claim (in which case Cloud Maker may retain Customer Data for a reasonable period of time pending resolution of such obligation or issue),in each case, subject to the DPA.
11.7 Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination.
11.8 Any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after expiry or termination of the Agreement shall survive and continue in full force and effect.
12. LIMITED WARRANTY
12.1 Cloud Maker undertakes to make the Cloud Maker Service available as set out in clause 10.1, and the Customer's sole and exclusive remedy, and Cloud Maker's sole liability, with respect to any failure by Cloud Maker to provide the Cloud Maker Service in accordance with clause 10.1 is for Cloud Maker to use commercially reasonable efforts to repair the affected part of the Cloud Maker Service so that it is available in accordance with clause 10.1.
12.2 Other than as set out in clause 12.1, the Cloud Maker Service is provided on an "AS IS" basis and Cloud Maker gives no representations, warranties, conditions, or other terms of any kind in respect of the Cloud Maker Service, whether express or implied, including (but not limited to) warranties of satisfactory quality, merchantability, fitness for a particular purpose, or non-infringement.
12.3 The Customer acknowledges that Cloud Maker requires access to Customer Data and any other data sources, whether controlled by the Customer or a third party, that the Customer may elect to use with the Cloud Maker Service. The Customer agrees that Cloud Maker is not responsible for the non-availability or any errors or omissions of any such data source.
12.4 Except as expressly provided for in the Agreement:
(a) all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and
(b) the Cloud Maker Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Cloud Maker does not guarantee that the Cloud Maker Service will always be available or uninterrupted, and Cloud Maker will not be liable to the Customer if for any reason the Cloud Maker Service is unavailable at any time for any period; and
(c) Cloud Maker will not be responsible for any interruptions, delays, failures, or non-availability affecting the Cloud Maker Service or the performance of the Cloud Maker Service which are caused by third party services (including Third Party Sites), errors or bugs in third party software, hardware, or the Internet on which Cloud Maker relies to provide the Cloud Maker Service, or any changes to the Cloud Maker Service made by or on behalf of the Customer, and the Customer acknowledges that Cloud Maker does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.
13. CLOUD MAKER'S LIABILITY
13.1 Subject to clause 13.2, Cloud Maker will not be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss arising under or in connection with the Agreement in conditions that fall into any of the following categories: loss (whether direct or indirect) of profit, goodwill, business, business opportunity, revenue, turnover or reputation; loss (whether direct or indirect) of anticipated saving or wasted expenditure; loss of, or damage to, data; or any special, indirect or consequential damage or loss, costs or expenses.
13.2 Nothing in the Agreement excludes or limits either party's liability for death or personal injury caused by a party's negligence, or for fraud or fraudulent misrepresentation.
13.3 Cloud Maker's total liability in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, arising under or in connection with the Agreement shall in all circumstances be limited to the Subscription Fees paid by the Customer in the 12 months prior to the event giving rise to the claim.
14. CHANGES TO THE CLOUD MAKER SERVICE
The Customer recognises that Cloud Maker is always innovating and finding ways to improve the Cloud Maker Service with new features and services. The Customer therefore agrees that the Cloud Maker Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Cloud Maker Service.
15.1 Written communications
Applicable laws may require that some of the information or communications that Cloud Maker sends to the Customer should be in writing. When using the Cloud Maker Service, the Customer accepts that communication with Cloud Maker will mainly be electronic. Cloud Maker will contact the Customer by email or provide the Customer with information by posting notices on the Cloud Maker Service. For contractual purposes, the Customer agrees to this electronic means of communication and the Customer acknowledges that all contracts, notices, information and other communications that Cloud Maker provides to the Customer electronically comply with any legal requirement that such communications be in writing.
All notices given by the Customer to Cloud Maker must be given to [email protected] Cloud Maker may give notice to the Customer at either the email or postal address the Customer provides to Cloud Maker, or any other way that Cloud Maker deems appropriate. Notice will be deemed received and properly served immediately when posted on the Cloud Maker Service or 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
15.3 Transfer of any rights and obligations
The Customer may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Customer's rights or obligations arising under the Agreement, without Cloud Maker's prior written consent. Cloud Maker may at any time transfer, assign, charge, or otherwise deal in the Agreement, or any of Cloud Maker's rights or obligations arising under the Agreement, without the Customer's prior written consent.
15.4 Changes to these Terms of Service (including the DPA)
Cloud Maker may amend the Terms of Service from time to time. The Customer will be subject to the Terms of Service in force at the time that it makes use of the Cloud Maker Service. The Customer acknowledges that it is responsible for checking the Terms of Service to ensure it understands the Terms of Service that apply at the time of its use of the Cloud Maker Service. Cloud Maker will use reasonable endeavours to notify the Customer of any material changes to the Terms of Service by e-mail or the placement of a notice on the Cloud Maker Service.
15.5 Events outside a party's control
Neither party shall be liable to the other party for any delay or non-performance of any of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, Internet failure, act of God, act of a third party, governmental act, war, fire, flood, explosion, or civil commotion. Notwithstanding the foregoing, nothing in this clause shall excuse the Customer from any payment obligation under the Agreement.
15.6 Third party rights
A person who is not a party to the Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions of the Agreement shall not be prejudiced.
15.9 Governing law
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
15.11 Entire agreement
The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them relating to its subject matter.