Terms
AQUILA CLOUDS TERMS OF SERVICE AND SOFTWARE SUBSCRIPTION AGREEMENT
1.DEFINITIONS.
“AI Features” means any artificial intelligence, machine learning, or generative AI capabilities included in or made available through the Company Products, including but not limited to natural language processing, predictive analytics, automated decision-making, pattern recognition, and content generation features.
“AI Input Data” means any data, content, prompts, queries, or other information provided by You or Your Authorized Users to AI Features for processing, analysis, or generation of outputs.
“AI Output Data” means any results, predictions, recommendations, content, or other outputs generated by AI Features in response to AI Input Data.
“Aquila Clouds Customer Responsibilities” Except to the extent permitted by applicable law, You shall not (i) make more copies of the Company Products than required for use (except for a reasonable number of copies for archival purposes) or use any unlicensed versions of the Company Products; (ii) use any Company Products that are not listed in an Order; (iii) allow anyone other than Authorized Users to install, run, access, or use the Company Products; (iv) sublicense, distribute or pledge the Company Products or any of the rights granted in this Agreement; (v) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Company Products; (vi) use or access any embedded or bundled component of the Company Products on a stand-alone basis where such embedded or bundled component is provided to Customer for the sole purpose of enabling the functionality of such Company Products; (vii) use third party software in conjunction with a Company Products except where provided in Documentation ; (viii) use any third party software in conjunction with any Company Products that causes the Company Products to become subject to a third party license applicable to such third party software or require the public disclosure or distribution of any Company Products or the licensing of any Company Products or materials or the purpose of making derivative works; (ix) market, offer to sell, and/or resell Company Products; and (x) use Company Products for competitive benchmarking or analysis, unless permitted under applicable law.
“Authorized Users” means individuals who have been authorized or enabled by You to access and use the Company Products, including but not limited to Your employees, consultants, contractors, agents, and third parties with whom You transact business, provided such individuals: (i) have a legitimate business need to access the Company Products for Your benefit; (ii) have been assigned valid user credentials; and (iii) are bound by confidentiality obligations consistent with this Agreement. You are responsible for all acts and omissions of Your Authorized Users.
“Cloud Services” means software-as-a-service offerings made available via a remote network, inclusive of any applicable on-premises components.
“Collected Data” means certain information which Aquila Clouds may collect, retain, disclose and use in connection with Your use of the Company Products and may include, but is not limited to, personally identifiable information about You, Your employees, agents or contractors acting on Your behalf, Your devices or systems or Your Company Products usage.
“Content Updates” means content used by certain Aquila Clouds products which is updated from time to time, including but not limited to: updated anti-spyware definitions for anti-spyware products; updated antispam rules for antispam products; updated virus definitions for antivirus and crime ware products; updated URL lists for content filtering and antiphishing products; updated firewall rules for firewall products; updated intrusion detection data for intrusion detection products; updated lists of authenticated web pages for website authentication products; updated policy compliance rules for policy compliance products; and updated vulnerability signatures for vulnerability assessment products.
“Customer Content” means all data, information, materials, and content that You or Your Authorized Users submit, upload, or otherwise make available through the Company Products, excluding AI Input Data and AI Output Data which are separately defined.
“Documentation” means the Aquila Clouds user manuals, handbooks, and installation guides relating to the Company Products provided in any form or medium by Aquila Clouds to Licensee.
“Feature Updates” means the product changes that Aquila Clouds effects for new feature releases. These are scheduled during off hours and weekends to minimize any effect on its customers and will announce its release schedule well in advance. Aquila Clouds strives to ensure that there is no operational impact and no deterioration of service, support or technical SLA performance during product upgrades. Each of these changes goes through an extensive testing and quality control process before they are released into production.
“License Instrument” means one or more of the following applicable documents which further defines your license rights to the Company Products: an Aquila Clouds license certificate or a similar license document issued by Aquila Clouds, or a written agreement between you and Aquila Clouds, that accompanies, precedes or follows this Agreement.
“Licensed Software” means the Aquila Clouds software product, in object code form, accompanying this Agreement, including any Upgrades, Documentation included in, or provided for use during the Subscription Term as specified in the applicable Order.
“Model Training” means the use of data to develop, improve, train, or fine-tune machine learning models, algorithms, or AI systems.
“Order” or “Order Form” means the ordering document executed by You and Aquila Clouds that specifies the Company Products, Subscription Term, Subscription Fees, and other terms applicable to Your Subscription.
“Permitted Use” means use of the Company Products by an authorized user for Your benefit in the ordinary course of Your internal business operations/purpose.
“Personal Data” means any information relating to an identified or identifiable natural person as defined under applicable data protection laws, including but not limited to the General Data Protection Regulation (GDPR), California Consumer Privacy Act (CCPA), and other applicable privacy laws.
“Security Incident” means any unauthorized access to, or acquisition, disclosure, or loss of, Personal Data or Customer Content.
“Support Certificate” means the certificate sent by Aquila Clouds confirming your purchase of the applicable Aquila Clouds maintenance/support for the Company Products.
“Subscription” means Your time-limited right to access and use the Company Products for the Subscription Term as specified in the applicable Order.
“Subscription Fees” means the fees payable by You for Your Subscription as specified in the applicable Order.
“Subscription Term” means the Initial Term and any Renewal Terms, collectively.
“Upgrade” means any version of the Company Products that has been made generally available and which replaces the prior version of the Company Products on Aquila Clouds’ price list pursuant to Aquila Clouds’ then-current upgrade policies.
“Update” means an update, fix or patch to the Company Products. means bug fixes, patches, or other error corrections to the Company Products that Aquila Clouds generally makes available free of charge to all licensees of the Software.
“Use Level” means the license use meter or model (which may include operating system, hardware system, application or machine tier limitations, if applicable) by which Aquila Clouds measures, prices and licenses the right to use the Company Products, in effect at the time an order is placed for such Company Products, as indicated in this Agreement and the applicable License Instrument.
2. SUBSCRIPTION GRANT.
Subject to and conditioned on Your payment of Subscription Fees and compliance with all terms and conditions of this Agreement, Aquila Clouds grants You a non-exclusive, non-transferable (except as stated in Section 19.1), non-sublicensable, time-limited license to access and use the Software and Cloud Services solely for Your internal business operations during the Subscription Term, in the quantities and at the Use Levels described in the applicable Order and Product Use Rights Supplement. You may exercise Your rights through Authorized Users, including consultants and outsourcers, provided You ensure such Authorized Users adhere to this Agreement, and You assume full responsibility for their actions.
2.1 SUBSCRIPTION TERM. The initial term of the Subscription (“Initial Term”) shall commence on the start date specified in the applicable Order and shall continue for the period stated in the Order. Renewal terms, including whether the Subscription automatically renews, the duration of any Renewal Terms, pricing for renewals, and notice requirements for non-renewal, shall be as specified in the applicable Order. If the Order does not specify renewal terms, the Subscription shall terminate at the end of the Initial term.
2.3 THIS IS A LEGAL AGREEMENT BETWEEN YOU AND AQUILA CLOUDS THAT GOVERNS YOUR ACCESS AND USE OF THE COMPANY PRODUCTS (LICENSED SOFTWARE AND CLOUD SERVICES). THIS AGREEMENT GRANTS YOU A TIME-LIMITED, NON-PERPETUAL LICENSE TO ACCESS AND USE THE COMPANY PRODUCTS DURING THE APPLICABLE SUBSCRIPTION TERM. THE COMPANY PRODUCTS ARE LICENSED, NOT SOLD. BY ACCESSING AND/OR USING THE COMPANY PRODUCTS AND SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
2.2 MULTI-YEAR SUBSCRIPTIONS. If You purchase a multi-year Subscription, the following terms apply unless otherwise specified in the applicable Order.
(i) Minimum Commitment Period. You are obligated to pay all Subscription Fees for the full Subscription Term stated in the Order.
(ii) Annual Cancellation Right. For multi-year Subscriptions, You may cancel the Subscription effective at the end of any annual period within the Subscription Term by providing written notice to Aquila Clouds at least sixty (60) days prior to the end of such annual period.
(iii) No Mid-Year Cancellation or Refunds. You may not cancel during any annual period, and all Subscription Fees for the then-current annual period are non-refundable. If You provide notice of cancellation, You remain obligated to pay all Subscription Fees through the end of the annual period in which the cancellation becomes effective.
(iv) Payment Schedule. Subscription Fees for multi-year Subscriptions are due and payable in accordance with the payment schedule set forth in the Order.
(v) Order Terms Control. Notwithstanding the foregoing, if the applicable Order contains different terms regarding cancellation, renewal, or payment for multi-year Subscriptions, the terms in the Order shall control.
2.3 PRODUCT ENTITLEMENT. Your Subscription includes access to the specific products, modules, and features identified in the applicable Order (“Entitled Products”). Your right to access and use Company Products is limited to the Entitled Products. Access to additional products, modules, features, or enhanced functionality not included in Your Entitled Products requires a separate Order and payment of additional Subscription Fees.
2.4 AI FEATURE ACCESS. Subject to Your Subscription, Aquila Clouds may make AI Features available to You. AI Features are provided as part of the Company Products and are subject to all terms of this Agreement unless otherwise specified in the applicable Product Use Rights Supplement or Order.
2.5 AI INPUT DATA. You retain all ownership rights in Your AI Input Data. You grant Aquila Clouds a limited, non-exclusive, worldwide license to use, process, and analyze AI Input Data solely to: (i) provide AI Features and generate AI Output Data for Your use; (ii) maintain and improve the performance, security, and functionality of the Company Products; and (iii) as otherwise expressly permitted in this Agreement or approved by You in writing.
2.6 AI OUTPUT DATA. As between You and Aquila Clouds, You own all AI Output Data generated from Your AI Input Data. However, You acknowledge that: (i) AI Features may generate similar or identical outputs for different users based on similar inputs; (ii) Aquila Clouds cannot and does not grant You exclusive rights to AI Output Data; and (iii) AI Output Data may require human review and may contain errors, inaccuracies, or inappropriate content.
2.7 MODEL TRAINING AND IMPROVEMENT.
(i) Aquila Clouds may use aggregated, anonymized, and de-identified usage data, performance metrics, and statistical information derived from Your use of AI Features to improve, train, and develop AI models, provided such data cannot reasonably be used to identify You or any individual.
(ii) Aquila Clouds will NOT use Your AI Input Data, AI Output Data, Customer Content, or Personal Data for Model Training unless: (a) You expressly opt-in to such use through a separate written agreement or consent mechanism provided by Aquila Clouds; or (b) such data has been fully anonymized and de-identified in accordance with applicable law and industry standards.
(iii) If You choose to opt-in to Model Training, You represent and warrant that You have obtained all necessary rights, permissions, and consents to permit Aquila Clouds to use such data for Model Training purposes.
2.8 AI FEATURE LIMITATIONS AND CUSTOMER RESPONSIBILITIES.
(i) You acknowledge that AI Features: (a) are not error-free and may produce inaccurate, incomplete, inappropriate, biased, or offensive outputs; (b) should not be used as a substitute for human judgment, particularly for consequential decisions; (c) may reflect biases present in training data or societal biases; and (iv) require human oversight and review.
(ii) You shall: (a) implement appropriate human review processes for AI Output Data before relying on it for business decisions or external distribution; (b) comply with all applicable laws regarding automated decision-making and AI use; (c) not use AI Features for any unlawful, fraudulent, discriminatory, or harmful purposes; (d) not attempt to reverse engineer, extract, or replicate AI models or algorithms; and (e) not use AI Features in high-risk applications where failure could result in death, personal injury, or severe environmental damage without implementing appropriate safeguards and obtaining Aquila Clouds’ prior written consent.
(iii) You are solely responsible for: (a) the accuracy, quality, and legality of AI Input Data; (b) Your use and reliance on AI Output Data; (c) any decisions made based on AI Output Data; and (d) compliance with applicable laws and regulations regarding AI use, automated decision-making, and data processing.
2.9 PROHIBITED AI USES. You shall not use AI Features to: (i) generate content that violates third-party intellectual property rights, privacy rights, or other legal rights; (ii) create deepfakes, manipulated media, or other deceptive content designed to mislead; (iii) facilitate or promote illegal activities, violence, discrimination, harassment, or harm; (iv) process sensitive Personal Data (e.g., health data, biometric data, data concerning children) without implementing appropriate safeguards and obtaining necessary consents; (v) make automated decisions that have legal or similarly significant effects on individuals without appropriate human oversight and legal basis; (vi) develop competing AI products or services; (vii) conduct benchmarking or competitive analysis without Aquila Clouds’ prior written consent; or (viii) any purpose that violates applicable laws or this Agreement.
2.10 AI TRANSPARENCY AND DISCLOSURES. When using AI Features to generate content for external distribution or customer-facing applications, You shall: (i) implement reasonable measures to disclose that content was generated or assisted by AI where such disclosure is required by applicable law or industry standards; and (ii) not misrepresent AI Output Data as solely human-generated where such misrepresentation would be misleading or unlawful.
2.11 CHANGES TO AI FEATURES. Aquila Clouds may modify, update, suspend, or discontinue AI Features at any time with reasonable notice to You. Aquila Clouds will use commercially reasonable efforts to provide advance notice of material changes that adversely affect Your use of AI Features.
3. SUBSCRIPTION RESTRICTIONS. You may not, without Aquila Clouds’ prior written consent, conduct, cause or permit the:
I. use, copying, modification, rental, lease, lend, sell, sublease, sublicense, assign, distribute, publish, transfer or otherwise make available the Company Products to any third party or transfer of the Company Products in whole or in part except as expressly provided in this Agreement;
II. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Company Products; creation of any derivative works based on the Company Products;
III. reverse engineering, disassembly, or decompiling of the Company Products(except that You may decompile the Software for the purposes of interoperability only to the extent permitted by and subject to strict compliance under applicable law);
IV. use of the Company Products in connection with service bureau, facility management, timeshare, service provider or like activity whereby You operate or use the Company Products for the benefit of a third party;
V. use of the Company Products by any party other than You or Your consultants;
VI. use of the Company Products above the quantity and Use Level that have been licensed to you under this Agreement or the applicable License Instrument;
VII. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Company Products, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Company Products to any third party;
VIII. bypass or breach any security device or protection used for or contained in the Company Products or Documentation;
IX. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Company Products or Documentation;
X. use the Company Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law;
XI. use the Company Products for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to Aquila Clouds’ detriment or commercial disadvantage;
XII. use the Company Products in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage;
XIII. use the Company Products to develop, train, or improve competing artificial intelligence, machine learning, or software products or services;
XIV. extract, scrape, or mine data from AI Features or outputs for use in training or developing third-party AI models;
XV. use AI Features to process data in violation of applicable laws, including without limitation data protection laws, anti-discrimination laws, and regulations governing automated decision-making;
XVI. attempt to access, reverse engineer, or extract the underlying models, algorithms, weights, or parameters of AI Features;
XVII. use AI Features in a manner that circumvents usage limits, rate limits, or other technical restrictions imposed by Aquila Clouds.
XVIII. use the Company Products to develop, train, or improve competing AI, machine learning, or software products;
XIX. use AI Features beyond the usage limits, quotas, or restrictions specified in the Order or Product Use Rights Supplement;
XX. access or use the Company Products after expiration or termination of the Subscription Term.
4. SUBSCRIPTION FEES AND PAYMENT
4.1 SUBSCRIPTION FEES. You shall pay all Subscription Fees specified in the applicable Order. Subscription Fees are based on the Subscription Term, and Use Level specified in the Order.
4.2 PAYMENT TERMS.
(i) Subscription Fees are due and payable as specified in the Order. For annual subscriptions, Subscription Fees are typically due in advance at the beginning of each subscription year.
(ii) Unless purchasing through an authorized reseller, invoices are payable net thirty (30) days from the invoice date.
(iii) Payment shall be made by check, wire transfer, or other method specified in the Order.
4.3 LATE PAYMENT. If You fail to pay undisputed Subscription Fees when due, Aquila Clouds may: (i) charge interest on overdue amounts at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower; and (ii) suspend Your access to the Company Products as set forth in Section 16.2.
4.4 TAXES.
(i) Subscription Fees do not include any taxes, levies, duties, or similar governmental assessments (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchase, except for taxes based on Aquila Clouds’ net income.
(ii) If Aquila Clouds is required to collect Taxes, such Taxes will be invoiced to You unless You provide a valid tax exemption certificate.
(iii) If You are required to withhold taxes from payments to Aquila Clouds, the amount payable shall be grossed up to cover such withholding, and You shall provide Aquila Clouds with official tax receipts evidencing payment to the appropriate tax authority.
4.5 PRICE INCREASES. Aquila Clouds may increase Subscription Fees upon renewal by providing at least sixty (60) days’ written notice prior to the renewal date. If You do not agree to the increase, You may terminate by providing written notice before the renewal date.
4.6 NO REFUNDS. All Subscription Fees are non-refundable except as expressly provided in this Agreement. If You terminate early, You remain obligated to pay all Subscription Fees through the end of the then-current Subscription Term.
4.7. OWNERSHIP/TITLE. The Company Products is the proprietary property of Aquila Clouds or its licensors and is protected by copyright law. Aquila Clouds and its licensors retain any and all rights, title and interest in and to the Company Products, including in all copies, improvements, enhancements, modifications and derivative works of the Company Products. Your rights to use the Company Products shall be limited to those expressly granted in this Agreement. All rights not expressly granted to you are retained by Aquila Clouds and/or its licensors.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1. Intellectual Property Ownership. You acknowledge and agree that:
(i) the Company Products and Documentation are licensed on a subscription basis, not sold, to you by Aquila Clouds and Your license rights exist only during the active Subscription Term. You do not have under or in connection with this Agreement any ownership interest in the Company Products or Documentation, or in any related Intellectual Property Rights;
(ii) Aquila Clouds is the sole and exclusive owner of all right, title, and interest in and to the Company Products and Documentation, including all Intellectual Property Rights relating thereto, subject only to the [rights of third parties in Open Source Components and the ]limited license granted to You under this Agreement; and
(iii) You hereby unconditionally and irrevocably assign to Aquila Clouds or Aquila Clouds’ designee, Your entire right, title, and interest in and to any Intellectual Property Rights that You may now or hereafter have in or relating to the Company Products or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
5.2. Your Cooperation and Notice of Infringement. You shall, during the Term:
(i) take all measures to safeguard the Company Products and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;
(ii) take all such steps as Aquila Clouds may reasonably require to assist Aquila Clouds in maintaining the validity, enforceability and Aquila Clouds’ ownership of the Intellectual Property Rights in the Company Products and Documentation;
(iii) promptly notify Aquila Clouds in writing if You become aware of: (i) any actual or suspected infringement, misappropriation or other violation of Aquila Clouds’ Intellectual Property Rights in or relating to the Company Products or Documentation; or (ii) any claim that the Company Products or Documentation, including any production, use, marketing, sale or other disposition of the Company Products or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and
(iv) fully cooperate with and assist Aquila Clouds in all reasonable ways in the conduct of any Action by Aquila Clouds to prevent or abate any actual or threatened infringement, misappropriation or violation of Aquila Clouds’ rights in, and to attempt to resolve Actions relating to, the Company Products or Documentation, including having Your employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
(v). No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to You or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Company Products or Documentation.
6. CONTENT UPDATES
6.1 INCLUDED UPDATES. Your Subscription includes Content Updates and Updates as and when they are made generally available by Aquila Clouds. Aquila Clouds will use commercially reasonable efforts to provide Updates with minimal disruption to Your use of the Company Products
6.2 FEATURE UPDATES. Aquila Clouds schedules Feature Updates during off-peak hours to minimize impact. Aquila Clouds will announce release schedules in advance and strive to ensure no operational impact or service degradation during updates.
6.3 UPDATE INSTALLATION. For on-prem installations, You shall install Updates within a reasonable time after release. Aquila Clouds is not responsible for issues arising from Your failure to install Updates.
7. UPGRADES/CROSS-GRADES/UPDATES. Aquila Clouds reserves the right to require that any Upgrades (if any) of the Company Products may only be obtained in a quantity equal to the number indicated on the applicable License Instrument. An Upgrade to an existing license shall not be deemed to increase the number of licenses which you are authorized to use. Additionally, if You upgrade Subscription to a Company Product , or subscribe to a Company Product license listed on the applicable License Instrument to cross-grade an existing license (i.e. to increase its functionality, and/or transfer it to a new operating system, hardware tier or licensing meter), then Aquila Clouds issues the applicable Licensed Instrument based on the understanding that You agree to cease using the license which was replaced. Any such license upgrade or cross-grade is provided under Aquila Clouds’ policies in effect at the time of order. This Agreement does not separately license you for additional licenses beyond those which you have subscribed to, and which have been authorized by Aquila Clouds as indicated on the applicable License Instrument. Upgrades and Updates shall be subject to any terms and conditions provided with such Upgrades and Updates. If no terms and conditions are provided, then Upgrades and Updates are subject to this Agreement. Aquila Clouds schedules new feature releases for off hours and weekends to minimize any effect on its customers and will announce its release schedule well in advance. Aquila Clouds strives to ensure that there is no operational impact and no deterioration of service, support or technical SLA performance during product upgrades. Each of these changes goes through an extensive testing and quality control process before they are released into production.
8. WARRANTY
8.1 CLOUD SERVICES WARRANTY. Aquila Clouds warrants that during the Subscription Term, the Cloud Services (Licensed Software delivered as Software-as-a-Service), when used in accordance with the Documentation, will operate in all material respects with the Documentation.
8.2. SOFTWARE WARRANTY. Aquila Clouds warrants that for a period of ninety (90) days from initial delivery of Software, the Software, as updated and used in accordance with the Documentation, will operate in all material respects in conformity with the functional specifications in the Documentation.
8.3. OTHER SERVICES WARRANTIES. Aquila Clouds warrants that maintenance, consulting services, and educational services will be delivered in a professional manner, but does not warrant that every question or problem raised will be resolved, or resolved in a certain amount of time.
8.4 WARRANTY REMEDY. For breach of the warranties in this Section 8, Aquila Clouds will, at its option: (i) repair or replace the non-conforming Services; or (ii) terminate the affected Order and refund prepaid, unused Subscription Fees on a pro-rata basis. THIS IS YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
8.5 WARRANTY DISCLAIMERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH IN SECTIONS 8.2 AND 8.3 ARE YOUR EXCLUSIVE WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. AQUILA CLOUDS MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE COMPANY PRODUCTS, CONTENT UPDATES, UPDATES OR UPGRADES WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OR USE OF THE COMPANY PRODUCTS, CONTENT UPDATES, UPDATES, AND UPGRADES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU MAY HAVE OTHER WARRANTY RIGHTS, WHICH MAY VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
8.6. AI FEATURES DISCLAIMER. NOTWITHSTANDING ANY OTHER WARRANTY IN THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT: (i) AI FEATURES ARE PROVIDED ON AN “AS-IS” BASIS WITH RESPECT TO ACCURACY, COMPLETENESS, RELIABILITY, AND APPROPRIATENESS OF AI OUTPUT DATA; (ii) AQUILA CLOUDS DOES NOT WARRANT THAT AI OUTPUT DATA WILL BE ACCURATE, COMPLETE, CURRENT, RELIABLE, ERROR-FREE, UNBIASED, OR SUITABLE FOR YOUR PARTICULAR PURPOSE; (iii) AI OUTPUT DATA MAY CONTAIN ERRORS, INACCURACIES, OFFENSIVE CONTENT, OR BIASES AND SHOULD NOT BE RELIED UPON WITHOUT HUMAN REVIEW AND VERIFICATION; (iv) AQUILA CLOUDS IS NOT LIABLE FOR ANY DECISIONS MADE, ACTIONS TAKEN, OR RESULTS OBTAINED BASED ON YOUR USE OF OR RELIANCE ON AI FEATURES OR AI OUTPUT DATA; AND (v) YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY, COMPLETENESS, AND USEFULNESS OF AI OUTPUT DATA AND FOR IMPLEMENTING APPROPRIATE HUMAN OVERSIGHT AND REVIEW PROCESSES.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL AQUILA CLOUDS OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE TO YOU FOR
(i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR
(ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, EVEN IF AQUILA CLOUDS OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS HAS BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL AQUILA CLOUDS’ LIABILITY EXCEED THE FEES YOU PAID FOR THE COMPANY PRODUCTS GIVING RISE TO THE CLAIM. NOTHING IN THIS AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT AQUILA CLOUDS’ LIABILITY TO YOU FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE WILL APPLY REGARDLESS OF WHETHER OR NOT YOU ACCEPT THE COMPANY PRODUCTS, CONTENT UPDATES, UPDATES OR UPGRADES.
10. MAINTENANCE/SUPPORT. Aquila Clouds has no obligation under this Agreement to provide maintenance/support for the Company Products. Any maintenance/support purchased for the Company Products is subject to Aquila Clouds’ then-current maintenance/support policies.
11. SOFTWARE EVALUATION AND TRIAL USE. If Aquila Clouds provides You with access to the Company Products for evaluation or trial purposes, such access shall be governed by a separate Software Evaluation Agreement or the evaluation terms provided with the evaluation license. Evaluation use is not governed by this Subscription Agreement unless and until You execute an Order for a paid Subscription.
12. U.S. GOVERNMENT COMMERCIAL LICENSE RIGHTS. This Section 12 applies only to U.S. Government entities. The Company Products are deemed to be commercial computer software as defined in FAR 12.212. Any use, modification, reproduction release, performance, display or disclosure of the Company Products by the U.S. Government shall be solely in accordance with the terms of this Agreement, and except as otherwise explicitly stated in this Agreement all provisions of this Agreement shall apply to the U.S. Government.
13. EXPORT REGULATION. The export or re-export of the Software and related technical data and services (collectively “Controlled Technology”) is subject to applicable export laws and regulations including, but not limited to, the U.S. Export Administration Regulations, the European Union Council Regulations, and the Singapore Strategic Goods Control Act. The export or re-export of Controlled Technology in violation of the foregoing laws and regulations is strictly prohibited. Controlled Technology may also be subject to various import, distribution and/or use restrictions requiring action on your behalf prior to use of the Controlled Technology. Controlled Technology is prohibited for export or re-export to Cuba, North Korea, Iran, Syria, Sudan, and the Crimea Region of Ukraine and to any other country or region subject to relevant trade sanctions. Controlled Technology is further prohibited for export or re-export to any person or entity named on relevant lists maintained by the U.S. government (including, but not limited to, lists published by the U.S. Department of Commerce, the U.S. Department of State, and the U.S. Department of Treasury), in addition to lists published by the authorities in applicable foreign jurisdictions. You may not export any Controlled Technology for use in connection with chemical, biological, or nuclear weapons or missiles capable of delivering such weapons. Furthermore, you may not export any Controlled Technology to any military entity, or to any other entity for any military purpose, unless subject to a valid license specifically permitting such export. You agree to comply with all applicable export or import control laws and regulations, and You represent that You are not under the control of, located in, or a resident or national of any prohibited country or region and are not a prohibited person or entity.
14. DATA COLLECTION, PROCESSING AND PRIVACY.
14.1 AQUILA CLOUDS PRIVACY POLICY. Aquila Clouds’ collection, use, and processing of information about You and Your Authorized Users (such as account information, contact details, and usage data) is governed by Aquila Clouds’ Privacy Policy available at www.aquilaclouds.com/privacy.
14.2 COLLECTED DATA. Aquila Clouds may collect and use Collected Data to enable, optimize and provide the use of Company Products, Updates and Upgrades, and/or maintenance/support to You (and may engage third parties to do so as well), to administer and enforce its license agreements with You, to make recommendations regarding usage of the Company Products and other Aquila Clouds solutions, to improve Aquila Clouds products and services, conduct statistical analysis and research and/or to improve Aquila Clouds’ products and services in general, including by reviewing aggregate data for statistical analyses. By installing and/or using the Company Products (including Updates and Upgrades), You agree that Aquila Clouds has obtained all the necessary consents and rights for Aquila Clouds to, collect, use, retain, disclose and/or process Collected Data for the purposes described in this Agreement and in the applicable Aquila Clouds product privacy notices at: www.aquilaclouds.com/privacy. Please note that the use of the Company Products may be subject to data protection laws or regulations in certain jurisdictions. You are responsible for ensuring that your use of the Company Products is in accordance with such laws or regulations.
14.3 SECURITY MEASURES AND DATA PROTECTION. (a) Aquila Clouds shall implement appropriate administrative, physical, and technical safeguards designed to: (i) protect Your Content and Personal Data from unauthorized access, use, or disclosure; (ii) maintain the security and confidentiality of Your Content and Personal Data; and (iii) comply with applicable data protection laws. (b) Aquila Clouds may collect, use, and process Your data (including User Data, usage information, and Collected Data) only in accordance with: (i) this Agreement; (ii) Aquila Clouds’ Privacy Policy available at www.aquilaclouds.com/privacy; and (iii) applicable data protection laws.; (c) Aquila Clouds will notify You without undue delay upon becoming aware of any Security Incident in accordance with applicable law and the Data Processing Addendum (DPA) (see below).
14.4 To the extent You process Personal Data subject to GDPR, UK GDPR, or other Applicable Data Protection Laws, the Data Processing Addendum (DPA) attached hereto applies and is incorporated by reference.
15. CONFIDENTIAL INFORMATION. You may have access to Aquila Clouds’ Confidential Information under this Agreement. “Confidential Information” includes all non-public information disclosed by Aquila Clouds to You, including: (i) the Company Products, and related technical specifications, algorithms, and architectures; (ii) trade secrets, know-how, and proprietary methods; (iii) business information, including customer lists, marketing plans, and financial data; (iv) security features and vulnerability information; (v) product roadmaps and unpublished features; (vi) performance data and analytics; and (vii) any information marked as confidential or that would reasonably be understood as confidential. Confidential Information excludes information that: (a) was rightfully known to You prior to disclosure; (b) becomes publicly available without Your breach; (c) is rightfully received from a third party; or (d) is independently developed by You without reference to, use, or incorporation of Aquila Clouds’ Confidential Information.As a condition to being provided with any disclosure of or access to Confidential Information, You shall:
(i) not access or use Confidential Information other than as necessary to exercise Your rights or perform Your obligations under and in accordance with this Agreement;
(ii) except as may be permitted under the terms and conditions of compelled disclosure, not disclose or permit access to Confidential Information other than to Your representatives who: (i) need to know such Confidential Information for purposes of their exercise of rights or performance of their obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and Your obligations under this Section 15; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 15;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; [and]
(d) promptly notify Aquila Clouds of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and]
(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 15.
You will hold Aquila Clouds’ Confidential Information in confidence and will not disclose the Confidential Information to any third party. You will use the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as You use to protect Your own confidential information of a like nature. You will use the Confidential Information only as needed to exercise the licenses granted under this Agreement. Confidential Information does not include any information that: (a) was rightfully in the possession of, or was known by, a party prior to its receipt from the other party, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is rightfully obtained by a party from a third party, without an obligation to keep such information confidential; or (d) is independently developed by a party. You may disclose Confidential Information as required by law or court order, provided You notify Aquila Clouds in writing of the requirement for disclosure in advance, and only disclose as much of the Confidential Information as is required by law.
16. EXISTING CONFIDENTIALITY OBLIGATIONS. If the parties have entered into a separate non-disclosure or confidentiality agreement prior to the Effective Date of this Agreement, such prior agreement shall remain in full force and effect and shall apply to Confidential Information disclosed thereunder. To the extent of any conflict between such prior agreement and this Section 15, the terms more protective of Confidential Information shall control.
17. TERMINATION.
17.1 This Agreement shall terminate upon your breach of any term contained herein. Upon termination, you shall immediately stop using and destroy all copies of the Company Products. You may also terminate this Agreement at the end of any annual subscription period by providing written notice to Aquila Clouds at least thirty (30) days prior to the end of the then-current subscription year. Subscription Fees for the current subscription year are non-refundable. You shall have thirty (30) days from the effective date of termination or expiration to retrieve and export any Customer Content, AI Input Data, or AI Output Data that You wish to retain. After such 30-day period, Aquila Clouds may delete or permanently anonymize all such data, except as required by applicable law or the DPA. Aquila Clouds shall have no obligation to maintain or provide access to Your data after the 30-day retrieval period.
17.2 TERMINATION FOR NON-PAYMENT. Aquila Clouds may suspend Your access to the Company Products and Cloud Services or terminate this Agreement if You fail to pay undisputed Subscription Fees when due and fail to cure such non-payment within ten (10) days after receiving written notice.
17.3 EFFECT OF TERMINATION. Upon termination or expiration of this Agreement or any Subscription: (a) Aquila Clouds shall terminate or disable Your account and all Authorized User accounts and credentials for the Company Products; (b) Your right to access and use the Company Products shall immediately cease; (c) You shall immediately cease all use of the Company Products and AI Features; (d) You shall, within ten (10) days, certify in writing to Aquila Clouds that You have de-installed, destroyed, or returned all copies of the Company Products and Documentation in Your possession or control; (e) Aquila Clouds may delete or permanently anonymize Customer Content, AI Input Data, and AI Output Data, except as required to comply with applicable law or as set forth in the DPA; and (f) You remain obligated to pay all Subscription Fees due through the end of the then-current Subscription Term.
17.4 NO REFUNDS. Except as expressly set forth in an applicable Order, all Subscription Fees are non-refundable, including in the event of early termination. You remain obligated to pay all Subscription Fees for the full Subscription Term. Any modification, waiver, credit, or alternative payment arrangement must be expressly agreed to by the parties in the applicable Order.
18.INDEMNIFICATION
18.1 AQUILA CLOUDS INDEMNIFICATION. Aquila Clouds will defend You against any third-party claim that the Company Products, as provided by Aquila Clouds and used in accordance with this Agreement, infringes such third party’s intellectual property rights, and will indemnify You for any damages, costs, and attorneys’ fees finally awarded against You or agreed to in a settlement by Aquila Clouds arising from such claim, provided that You: (i) promptly notify Aquila Clouds in writing of the claim; (ii) grant Aquila Clouds sole control over the defense and settlement of the claim; and (iii) reasonably cooperate with Aquila Clouds in the defense.
18.2 EXCLUSIONS. Aquila Clouds’ indemnification obligations under Section 18.1 do not apply to claims arising from: (i) Your modification of the Company Products; (ii) Your combination of the Company Products with third-party products, data, or services not provided or approved by Aquila Clouds; (iii) Your use of the Company Products in violation of this Agreement; (iv) AI Input Data or Customer Content provided by You; (v) AI Output Data generated from Your AI Input Data; or (vi) Your failure to implement updates or modifications that would have avoided the alleged infringement.
18.3 REMEDIES. If the Company Products become, or in Aquila Clouds’ opinion are likely to become, the subject of an intellectual property infringement claim, Aquila Clouds may, at its option and expense: (i) obtain the right for You to continue using theCompany Products; (ii) replace or modify the Company Products to make them non-infringing; or (iii) if neither (i) nor (ii) is commercially reasonable, terminate Your Subscription and refund any prepaid, unused Subscription Fees on a pro-rata basis. THIS SECTION 18.3 STATES AQUILA CLOUDS’ ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
18.4 CUSTOMER INDEMNIFICATION. You will defend Aquila Clouds against any third-party claim arising from: (i) AI Input Data or Customer Content provided by You; (ii) Your use of the Company Products, or AI Features in violation of this Agreement or applicable law; (iii) Your use of AI Output Data; (iv) allegations that AI Input Data or Customer Content infringes third-party intellectual property rights or violates applicable laws; or (v) Your breach of Section 2. You will indemnify Aquila Clouds for any damages, costs, and attorneys’ fees finally awarded against Aquila Clouds or agreed to in a settlement by You arising from such claims, provided that Aquila Clouds: (i) promptly notifies You in writing of the claim; (ii) grants You sole control over the defense and settlement of the claim (except Aquila Clouds’ consent is required for any settlement that imposes obligations on or admits liability by Aquila Clouds); and (iii) reasonably cooperates with You in the defense.
19. SURVIVAL. The following provisions of this Agreement survive termination of this Agreement: Definitions, Prohibited AI Uses, License Restrictions and any other restrictions on use of intellectual property, Ownership/Title, Warranty Disclaimers, AI Features Disclaimer, Data Collection, Processing, and Privacy, Indemnification, No Refunds, this section, Limitation of Liability, U.S. Government Commercial License Rights, Export Regulation, Data Collection, Confidential Information, Survival, and General.
20. GENERAL.
20.1. ASSIGNMENT. You may not assign the rights granted hereunder or this Agreement, in whole or in part and whether by operation of contract, law or otherwise, without Aquila Clouds’ prior express written consent. Aquila Clouds may assign this Agreement to any party.
20.2. COMPLIANCE WITH APPLICABLE LAW. You are solely responsible for your compliance with, and you agree to comply with, all applicable laws, rules, and regulations in connection with your use of the Company Products.
20.3. AUDIT. Aquila Clouds may audit Your use of the Company Products to verify Your usage complies with Your license agreements with Aquila Clouds, including without limitation through collection and use of Collected Data, self-certifications, on-site audits and/or audits done using a third party auditor. On-site or remote audits will be done upon reasonable notice and during normal business hours, but not more often than once each year. You shall pay Aquila Clouds for any unauthorized deployments of Company Products disclosed by the audit. License fees for such over deployments will be invoiced to and paid by you at the undiscounted license list price in effect as of the audit completion date (“List Price”), unless otherwise mutually agreed. Aquila Clouds shall bear the costs of any such audit, except where the audit demonstrates that the List Price value of your non-compliant usage exceeds five percent (5%) of the List Price value of your compliant deployments. In such case, in addition to purchasing appropriate licenses for any over-deployed Company Products, You shall reimburse Aquila Clouds for the fees for the audit.
20.4. GOVERNING LAW; SEVERABILITY; WAIVER. If you are located in North America or Latin America, this Agreement will be governed by the laws of the State of California, United States of America. If you are located in China, this Agreement will be governed by the laws of the People’s Republic of China. Otherwise, this Agreement will be governed by the laws of England and Wales. Such governing laws are exclusive of any provisions of the United Nations Convention on Contracts for Sale of Goods, including any amendments thereto, and without regard to principles of conflicts of law. If any provision of this Agreement is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of this Agreement shall remain in full force and effect. A waiver of any breach or default under this Agreement shall not constitute a waiver of any other subsequent breach or default.
20.5. THIRD PARTY PROGRAMS. The Company Products may contain third party software programs (“Third Party Programs”) that are available under open source or free software licenses. This Agreement does not alter any rights or obligations you may have under those open source or free software licenses. Notwithstanding anything to the contrary contained in such licenses, the disclaimer of warranties and the limitation of liability provisions in this Agreement shall apply to such Third Party Programs.
20.6. CUSTOMER SERVICE. Should you have any questions concerning this Agreement, or if you desire to contact Aquila Clouds for any reason, please write to: (i) support@aquilaclouds.com (ii) Aquila Clouds, 300 Ginger Court, San Ramon, California 94582, U.S.A.
20.7. ENTIRE AGREEMENT. This Agreement and any related License Instrument are the complete and exclusive agreement between you and Aquila Clouds relating to the Company Products and supersede any previous or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by You, even if signed and returned. This Agreement may only be modified by a License Instrument, License Agreement or a binding document that accompanies or follows this Agreement.
Data Processing Addendum (DPA)
1. Definitions
For purposes of this Data Processing Addendum (“DPA”):
- “Applicable Data Protection Laws” means all laws and regulations applicable to the processing of Personal Data under this Agreement, including the GDPR and UK GDPR.
- “Controller,” “Processor,” “Personal Data,” “Processing,” and “Data Subject” have the meanings given in Applicable Data Protection Laws.
- “Customer Data” means any data, including Personal Data, submitted to or processed by the Company on behalf of Customer, or You through use of the Services.
2. Roles of the Parties
- You act as the Controller of Personal Data.
- Aquila Clouds acts as a Processor and processes Personal Data solely on behalf of and in accordance with Your documented instructions, as set forth in this Agreement.
3. Scope and Purpose of Processing
- Providing, maintaining, and supporting the Services;
- Preventing or addressing service, security, or technical issues;
- Complying with legal obligations applicable to the Company.
4. Company Obligations
- Process Personal Data only on documented instructions from You;
- Ensure that personnel authorized to process Personal Data are bound by confidentiality obligations;
- Implement appropriate technical and organizational measures to protect Personal Data against unauthorized or unlawful processing, loss, destruction, or damage;
- Not sell, disclose, or use Personal Data except as permitted under this Agreement or Applicable Data Protection Laws.
5. Sub-Processors
- You authorise Aquila Clouds to engage Sub-Processors to process Personal Data for the provision of the Services.
- Aquila Clouds shall ensure Sub-Processors are bound by data protection obligations no less protective than those set forth in this DPA.
- A current list of Sub-Processors shall be made available upon request.
6. Data Subject Rights
7. Personal Data Breach
8. Data Transfers
- Aquila Clouds shall ensure such transfers are subject to appropriate safeguards, including Standard Contractual Clauses or other lawful transfer mechanisms.
9. Audits and Compliance
10. Data Retention and Deletion
- The Company shall delete or return Customer Data within a reasonable timeframe, unless retention is required by applicable law.
11. Liability and Precedence
- This DPA forms part of and is incorporated into this Agreement.
- In the event of a conflict between this DPA and this Agreement, this DPA shall prevail with respect to data protection matters.
12. Governing Law