Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING OUR SERVICES. BY ACCESSING OR USING ANY PART OF OUR SERVICES, YOU AGREE TO BE BOUND BY THE AGREEMENT. IF YOU DO NOT AGREE TO THE AGREEMENT, THEN YOU MUST NOT ACCESS OR USE ANY OF OUR SERVICES. IF THE AGREEMENT IS CONSIDERED AN OFFER BY AZURATIVE UNDER APPLICABLE LAW, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS AGREEMENT WITHOUT MODIFICATION.
Our Services are not directed to children younger than 13, and access and use of our Services is only offered to users 13 years of age or older. If you are under 13 years old, you are not permitted to register to use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 13 years of age or older.
Use of our Services requires a CloudRadial.com account. You agree to provide us with complete and accurate information when you register for an account on the Site. You will be solely responsible and liable for any activity that occurs under your username. You must keep your password secure and notify us immediately if you believe your account has been compromised.
We may change any part of the Agreement at any time. If we make changes that are material, we will let you know by posting on one of our blogs, or by sending you an email or other communication before the changes take effect. The notice will designate a reasonable period of time after which the new terms will take effect. If you disagree with our changes, then you should stop using our Services within the designated notice period. Your continued use of our Services will be subject to the new terms. However, any dispute that arose before the changes shall be governed by the Agreement that was in place when the dispute arose.
The Services are described on our Site. We may update, modify, add, remove, and revise Services at any time. If we remove any Service that we deem critical to our customers, we will endeavor to provide you with written notice of the removal.
By using our Services, you grant us access to services, systems, workstations, equipment, software, apps, and servers (collectively, “Systems”) under your control for the purposes of gathering information, content, materials, and data (collectively, “Content”) and making requested changes. You represent and warrant that you have received any third-party permissions and authorizations necessary for use to have such access, collect such Content, and make such changes. Do not connect our Services to any System where you do not have such permissions or where you do not want us to gather Content.
We may also scan the Content we gather and compile aggregated/anonymized statistics for our internal use to optimize the performance of the Services and to develop new products and services. You also grant us a worldwide, royalty-free, and non-exclusive license to copy and store your Content (and any other content you give us access to), to the extent necessary to operate the Services.
These Terms do not give us any rights in your Content, beyond those required for us to operate the Services and to compile statistics as specified above. You own your Content.
Payment, Renewal and Refunds
We offer different levels of Services. By signing up for a level of Service, you agree to pay the applicable subscription fees including add-on fees. Fees are payable in advance, and failure to make payments in a timely manner may result in late fees, interest charged in accordance with applicable law (up to 18% per annum), or cancellation of your plan. All payments must be made in United States dollars. If we change pricing for a Service to which you are subscribed, we will notify you before your subscription is set to renew. You authorize us to charge any then-applicable fees to your credit card or other payment method we have on file for you. You must provide accurate and complete billing information and keep such information current. The subscription fees do not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement (“Taxes”). You are responsible for paying all applicable Taxes, excluding taxes on our net income or property. If we determine that we have the legal obligation to pay or collect such Taxes, we will add such Taxes to the applicable invoice and you will pay such Taxes, unless you provide us with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues us for unpaid Taxes for which you are responsible under this Agreement and which you did not pay to us, we may invoice you and you will pay such Taxes to us or directly to the taxing authority, plus all applicable interest, penalties and fees. Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
If the original subscription does not contain a termination date, the term ends on the later of the one-year anniversary of the original order date. Subscriptions will automatically renew for additional terms equal to the length of the expiring term unless either party gives the other party notice of non-renewal during the 30 days before the end of the relevant term. Pricing during any automatic renewal term will be at the Services then current pricing.
Suspension or Termination of Services
Azurative may, directly or indirectly, and by use of a Azurative disabling device or any other lawful means, suspend, terminate, or otherwise deny access or use by you or any other person of all or any part of the Services or Azurative Content, without incurring any resulting obligation or liability, if: (a) Azurative receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Azurative to do so; or (b) Azurative believes, in its reasonable discretion, that: (i) you, or any use authorized by you, have failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) you, or any use authorized by you, have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Azurative’s other rights or remedies, whether at law, in equity, or under this Agreement.
You retain all right, title and ownership to the Content that you provide, submit, import or collect using our Site. Azurative will treat your Content as confidential and will not use, or allow anyone else to use, your data except as you direct, otherwise permit (including the permissions granted in the License section above) or as required by law. If you cease using the Site, Azurative will continue to treat your Content confidentiality until it is removed from our systems.
You represent and warrant that you have all rights and licenses necessary to provide, submit, post, distribute, transfer, import, store and collect the Content you provide to us through the Site, Services, or in any other manner. We have no responsibility to monitor your Content or determine whether it is legal or not.
If you cease using the Site either because you canceled service, let your trial period expire, or fail to pay your account in full, Azurative will remove your Content from our systems. Azurative has no obligation to maintain or provide you a copy of your Content after your period of usage.
We may also remove any Content that we determine, in our reasonable discretion, is illegal, infringes a third-party’s rights, or violates any part of the Prohibited Uses section below.
If you are using the Site’s messaging feature, including but not limited to internal messaging, email and browser notifications, you agree to do so in conformance with all applicable laws and regulations including those related to content, consent and user privacy. Azurative has no liability with regards to the messages you send or direct to be sent using our Services, and you hereby indemnify and hold harmless Azurative from any against any claim or allegation arising from such messages.
This Agreement does not transfer any ownership rights in or to Azurative intellectual property or any third party intellectual property, and all right, title, and interest in and to such intellectual property will remain (as between the parties) solely with Azurative.
All Azurative logos, brands, names (including CloudRadial), and other trademarks, service marks, graphics and logos used in connection with our Services, are trademarks or registered trademarks of Azurative or Azurative’s licensors. Other trademarks, service marks, graphics and logos used in connection with our Services may be the trademarks of other third parties. Your use of our Services does not grant you any right or license to reproduce or otherwise use any Azurative or third-party trademarks.
You are granted the limited right, revocable at any time for any reason, to use the CloudRadial icons, screenshots and related images (“Marks”) only for the purpose of promoting and marketing CloudRadial services to clients. Azurative retains all rights to the Marks. Your use of the Marks is subject to our written trademark usage guidelines, which we may provide and update from time to time. All goodwill arising from your use of the Marks accrues solely to the benefit of Azurative.
You hereby grant to Azurative the right to use your entity’s name and logo in marketing, sales, financial, and public relations materials and other websites and communications solely to identify that you are an Azurative customer.
You may, on an entirely voluntary basis, submit feedback and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the operations, functionality, or features of the Services (collectively, “Feedback”). You grant us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, incorporate into the Services, copy, modify, distribute, publish, perform, translate, create derivative works from, sublicense, and otherwise exploit Feedback without restriction.
General Representation and Warranty.
Disclaimer of Warranties
THE SERVICES ARE PROVIDED “AS-IS” AND “WHERE-IS.” AZURATIVE AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER AZURATIVE NOR ITS SUPPLIERS AND LICENSORS, MAKES ANY WARRANTY THAT OUR SERVICES WILL BE ERROR FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS, SECURE, OR UNINTERRUPTED. YOU UNDERSTAND THAT YOU USE THE SERVICES, AND OTHERWISE OBTAIN CONTENT OR SERVICES THROUGH THE SERVICES, AT YOUR OWN DISCRETION AND AT YOUR OWN RISK. THE SERVICE AND ASSOCIATED SOFTWARE ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN LIFE-DEPENDENT OR HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. TO THE EXTENT LICENSEE USES THE SERVICES IN SUCH ENVIRONMENT, IT EXPRESSLY ASSUMES ALL RISK THEREFORE AND RELEASES AZURATIVE FROM ALL LIABILITY.
Limitation of Liability.
IN NO EVENT WILL AZURATIVE, OR ITS SUPPLIERS OR LICENSORS, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) THE COST OF PROCUREMENT FOR SUBSTITUTE PRODUCTS OR SERVICES; (III) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (IV) ANY AMOUNTS THAT EXCEED THE FEES PAID BY YOU TO AZURATIVE UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CAUSE OF ACTION. AZURATIVE HAS NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND THEIR REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THESE LIMITATIONS ON LIABILITY ARE A REASONABLY ALLOCATION OF THE RISK BETWEEN THE PARTIES, AND THAT THEY ARE AN ESSENTIAL COMPONENT OF THE PARTIES’ AGREEMENT. HOWEVER, THE FOREGOING LIMITATIONS DO NOT APPLY TO THE EXTENT EXPRESSLY PROHIBITED BY APPLICABLE LAW.
YOU ACKNOWLEDGE THAT ONLINE THREATS AND MALICIOUS TOOLS ARE CONSTANTLY EVOLVING, AND ACCORDINGLY IT IS IMPOSSIBLE TO BE FULLY PROTECTED FROM ONLINE ATTACKS AND HACKING ATTEMPTS. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY LOSS OF DATA, LOSS OF INFORMATION, UNAUTHORIZED ACCESS, OR COMPROMISE OF SYSTEMS BY A THIRD PARTY.
Azurative shall defend Licensee against any third party claims that the Services infringes any United States patent or United States copyright or misappropriates any trade secret (to the extent it qualifies as a trade secret under Texas law), and pay any costs and damages finally awarded by a court of competent jurisdiction or agreed upon in settlement with respect to such claims, provided Azurative is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement. Azurative will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to Services or portions or components thereof (a) not supplied by Azurative, (b) made in whole or in part in accordance to Licensee’s specifications, (c) that are modified after delivery by Azurative, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Licensee’s use of the Services is not strictly in accordance with this Agreement.
You agree to indemnify and hold harmless Azurative, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of or related to (i) your use of our Services, (ii) your Content or any Content you or your users post to the Services, or (iii) your violation of any part of this Agreement. In addition, except with respect to a dispute between you and Azurative, you will reimburse Azurative for all costs and reasonable attorneys’ fees for responding to third party or governmental requests for information arising out of or in connection with your data or other Content or your use of the Services.
HIPAA Business Associates Agreement
If you are a “covered entity” or a “business associate” and you handle content that may include “protected health information” (“PHI”) as those terms are defined in 45 CFR § 160.103, we will only accept, use and handle the PHI in accordance with the HIPAA Business Associate Agreement (“BAA”) available on our website at Business Associate Agreement.
If you are a subject to the European Union’s GDPR data processor requirements, then we will only accept, use and process personal data in accordance with our GDPR Data Processor Agreement available on our website at Data Processor Agreement.
Jurisdiction and Applicable Law.
Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of our Services will be governed by the laws of the state of Texas, U.S.A., excluding its conflict of law provisions, and the exclusive venue for any disputes arising out of or relating to this Agreement will be the state and federal courts located in Dallas County, Texas.
The parties stipulate that your breach or threatened breach of this Agreement will cause immediate and irreparable harm and significant injury to Azurative, for which there is no adequate remedy at law. Azurative shall be entitled, in addition to any other rights and remedies it may have, to specific performance and other equitable remedies to restrain any actual, threatened, continuing, or further breach of this Agreement without the requirement of proving actual damages sustained by Azurative, and without the requirement for Azurative to post a bond. In addition to these equitable remedies, you shall be liable to Azurative for any and all damage to Azurative caused by breach of this Agreement.
Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond pursuant to the preceding section), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Dallas, Texas, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement (or the party prevailing on the majority of claims) shall be entitled to costs and attorneys’ fees.
US Economic Sanctions and Anti-Corruption
You expressly represent and warrant that your use of our Services and or associated services and products is not contrary to applicable United States sanctions. Such use is prohibited, and Azurative reserves the right to terminate accounts or access of those in the event of a breach of this condition.
You represent that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement.
The Agreement was originally written in English (US). We may translate these terms into other languages. In the event of a conflict between a translated version of the Agreement and the English version, the English version will control.
This Agreement constitutes the entire agreement between Azurative and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Azurative, or by the posting by Azurative of a revised version.
If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions of this agreement will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Azurative may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
We may use subcontractors or other third parties in carrying out our obligations under this Agreement. We remain responsible to you for the performance of the Services that are subcontracted under this Agreement.
You may not access the Services if you are our direct competitor, except as we may otherwise permit in writing.
The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the drafting party. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Legal notice to us is effective only if it is in writing sent by certified or registered mail, or nationally-recognized overnight courier, return receipt requested and postage prepaid, to CloudRadial, ATTN: Legal Counsel, 6060 N. Central Expwy, #500, Dallas, TX 75206.
You agree not to do, directly or indirectly, any of the following (“Prohibited Uses”):
- Circumvent or disable any security or other technological features or measures of the Services, or attempt to probe, scan or test the vulnerability of a network or system, breach security or authentication measures, or gain unauthorized access to any Azurative service, system or network.
- Provide Content in a manner, or engage in activity that is illegal under applicable law.
- Provide any Content in any manner that infringes any third party’ s U.S. copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy.
- Provide any party with Content in a manner that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing, or is obscene, harmful to minors or child pornographic.
- Use our Services in a manner that is unreasonable or overburdens our systems, as determined by us in our sole discretion.
- Disclose the sensitive personal information of others.
- Send spam or bulk unsolicited messages.
- Provide any party with Content that is false, misleading, or inaccurate.
- Interfere with, disrupt, or attack any service or network.
- Provide us with Content that is or enables malware, spyware, adware, or viruses, worms, Trojan horses, or other disabling programming or devices, backdoors, secret features, functions, Easter eggs, or any other malicious code or harmful components (“Harmful Code”).
- Copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Services or any feature or function thereof.
- Benchmark or monitor the availability, performance or functionality of the Services or to assess the Services for any other competitive purpose.
Effective: October 22, 2022