CloudQuery, Inc. Product Terms of Service

Any entity or individual agreeing to these linked terms and conditions as part of any ordering document or process (each a “Client”) agrees to be bound by these Terms and Conditions in addition to the ordering document and any exhibits or addendums included or attached therein (together this “Agreement”). This Agreement is entered into by and between CloudQuery, Inc., a Delaware corporation (“Cloudquery”) and the Client. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

CloudQuery develops and provides software plugins to access certain source integrations with its open-source core CLI tool built for developers (the “Software”).

 

1.1 “Affiliate” means any other persons that directly or indirectly through one or more intermediaries, control, are controlled by, or are under common control with, either of the parties. The term "persons" will be broadly interpreted to mean any individual or entity whatsoever.

1.2 "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure; CloudQuery’s Confidential Information will include the CloudQuery Materials; and Confidential Information of each party will include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information will not include any information that (i) is, or becomes, generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to any disclosure by the Disclosing Party.

1.3 “Documentation” means the user documentation for the Software that CloudQuery makes generally available to users at https://docs.cloudquery.io.

1.4 “CloudQuery Materials” means the Software, any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by CloudQuery or its personnel in connection with providing the Software and related services.

1.5 “Software” means the software defined in the Key Agreement Terms page. As set forth in an applicable Order Form, Software shall be either (i) “Online” which means that Client will be required to have an Account (as defined below) with CloudQuery and that Telemetry Data (as defined below) will be sent to CloudQuery via the Software or (ii) “Offline” which means that no Telemetry Data is sent to CloudQuery via the Software, no CloudQuery Account is required to use the Software, and Software will be self-hosted by Client.

1.6 “Order Form” means any legally binding ordering document between CloudQuery and Client that sets forth the type of Software, any Software usage limitations, Subscription Period (as defined in Section 6), and other relevant terms. Each Order Form that expressly refers to this Agreement will form part of this Agreement and will be subject to the terms and conditions contained herein.

1.7 “Order Form Start Date” means the date specified as the Order Form State Date in the applicable Order Form.

1.8 “Telemetry Data” means the transmitted data set forth at https://docs.cloudquery.io/docs/telemetry.

1.9 “User” means an individual employee or agent of Client (or of an Affiliate of Client) who has been authorized by the Client and is assigned a unique username-password combination to access and use the Software. The rights of Users are solely those expressly granted to Client pursuant to Section 2. Conduct by any and all Users of Client or of Client’s Affiliates shall be treated as the conduct of the Client for purposes of Client’s obligations pursuant to this Agreement.

Subject to Client’s compliance with this Agreement, CloudQuery grants Client a limited, non-exclusive, non-transferable, revocable license during the Subscription Period to access and use the Software solely for Client’s internal business use. Such access and use is expressly limited as set forth the applicable Order Form. Client’s rights in the Software will be limited to those expressly granted in this Section 2. CloudQuery and its licensors reserve all rights and licenses in and to the Software not expressly granted to Client under this Agreement. For the avoidance of doubt any CloudQuery open-source software is not included within the scope of the foregoing license and is made available pursuant to its own applicable open-source licensing as set forth in the accompanying documentation with any such open-source software.

3.1 Restrictions. Client acknowledges that the Software contains trade secrets of CloudQuery and its licensors, and, in order to protect such trade secrets and other interests that CloudQuery and its licensors may have in the Software, Client may not, and Client agrees not to directly or indirectly (nor shall it allow any third party to) (i) modify, reverse engineer, or attempt to hack or otherwise discover any source code or underlying code, ideas, or algorithms of the Software (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) sell, resell, license, sublicense, provide, lease, lend, use for timesharing, or service bureau purposes or otherwise use or allow others to use the Software for the benefit of any third party, (iii) use the Software, or allow the transfer, transmission, export, or re-export of the Software or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency, (iv) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights, (v) use the Software to store or transmit Malicious Code, (vi) access or use the Software in a way that circumvents a contractual usage limit, (ix) copy the Software or any part, feature, function or user interface thereof, access the Service in order to build a competitive product or service, or (x) use the Software for any purpose other than as expressly licensed herein.

3.2 Telemetry. Client acknowledges and agrees that CloudQuery is not required to monitor or police Telemetry Data. Client shall use the Software exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others.

3.3 Excess Use. Should Client use the Software beyond the applicable Software limitations set forth in an Order Form (“Excess Use”), CloudQuery shall invoice Licensee for the Excess Use at CloudQuery’s current pricing plans, such that Client is billed in accordance with the actual usage of the Software. To verify any Excess Use, and to extent Client uses Offline Software, Client will maintain, and CloudQuery will be entitled to inspect, any records relevant to Client’s use of the Software hereunder. CloudQuery may inspect such records on reasonable notice at CloudQuery’s cost (or if the review reveals material non-compliance with an applicable Order Form, at Licensee's cost), including without limitation, to confirm Excess Use.

4.1 Fees. By subscribing to the Software, Client agrees to pay CloudQuery the fees set forth in each applicable Order Form. In the event of any conflict between the terms of this Section and the Order Form, the Order Form terms will control.

4.2 Payment Timing. Unless payment terms are modified by the Order Form, CloudQuery will issue Client an invoice at the Order Form Start Date for an annual in-advance payment of Total First Year Order Form Fees as reflected in the Order Form. Unless modified by the Order Form, additional Annual License Fees shall be due on each yearly anniversary of the Order Form Start Date for each additional year of the Term. All fees are payable and due within thirty (30) days after the date of any invoice. For clarity, in the event of any conflict between the terms of this Section and the Order Form, the Order Form terms will control.

4.3 Taxes. Client agrees to pay all fees applicable to Client’s subscription as set forth in the applicable Order Form, or otherwise in accordance with CloudQuery’s prices that are in effect at the time of Client’s order or the time of subscription renewal. All stated fees are exclusive of taxes or duties of any kind. Client will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or Client’s use of the Software, except for taxes based on CloudQuery’s net income. If CloudQuery is required to collect any tax for which Client is responsible, Client agrees to pay such tax directly to CloudQuery. All past due amounts will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less.

CloudQuery and its licensors reserve sole and exclusive ownership of CloudQuery Materials, and all copyrights, patents, trademarks, and other intellectual property rights therein. Client may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Software. If Client provides CloudQuery with any suggestions, comments, or other feedback regarding the Software or related services (“Feedback”), Client acknowledges that CloudQuery shall have a perpetual, royalty free license to use (or not use) any such suggestions, comments, or other feedback regarding the Software in any manner and for any purpose, without compensation to Client and without implying or creating any interest on Client’s part in any of CloudQuery’s products or services that may be based on such Feedback. Feedback shall not include any Client Confidential information.

6.1 Client does not claim any ownership rights in Telemetry Data. Nothing in this Agreement will be deemed to restrict any rights that CloudQuery may have to use and exploit Telemetry Data.

6.2 Client consents to CloudQuery’s use of Telemetry Data to provide the Software and monitor compliance with license limitations set forth in an applicable Order Form.

6.3 CloudQuery maintains the right, title, and interest in and to any data or information regarding the use or optimizing the use or sale of the Software, so long as such data does not include Client Confidential Information.

This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect until the completion of the Order Form Term Length set forth in the applicable Order Form (the “Initial Subscription Period”). Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless one party provides written notice to the other party at least thirty (30) days in advance of the expiration of the then-existing Subscription Period that it does not wish to renew this Agreement. The Initial Subscription Period and any subsequent renewal term(s) shall each be referred to as the “Subscription Period.” The pricing and related terms applicable during any renewed Subscription Period will be as set forth in the new Order Form. Either party may terminate this Agreement (including any Order Form then in effect) if the other party breaches any material term of this Agreement or Order Form and fails to cure such breach within thirty (30) days after receipt of a written notice thereof. CloudQuery may suspend Client’s Account (including any individual User’s Account) and Client’s use of the Software as CloudQuery deems appropriate to prevent, investigate, or otherwise address any suspected misuse of the Software. Upon the expiration or termination of this Agreement, Client will, within thirty (30) days after receipt of CloudQuery’s invoice, pay all accrued and unpaid fees. The provisions of Sections 1, 3, 5, 6 and 6 to 16 will survive any expiration or termination of this Agreement. Any other provisions of this Agreement which are intended by the parties to, or by their nature should, survive expiration or termination or termination of this Agreement shall so survive.

In order to access and use Online Software, Client will need to create an account (“Account”). Client agrees to provide accurate, current and complete information about the Client Account, which includes all individual User Accounts. CloudQuery reserves the right to suspend or terminate the Client Account or any individual User’s Account, if any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading. Client is responsible for maintaining the confidentiality of Client’s passwords and Account, including all usernames and passwords information assigned to its Users, and agrees to notify CloudQuery if any of the passwords is lost, stolen, or disclosed to an unauthorized third-party, or otherwise may have been compromised. Client is responsible for all activities that occur under the Client Account, including the activities carried out by individual employees.

9.1 Confidentiality. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third party other than its affiliates and its representatives, including legal counsel, financiers, and accountants without the other party’s prior written consent. Without limiting the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

9.2 CloudQuery will promptly inform Client of any known or reasonably suspected security breach or unauthorized disclosure of the Client Confidential Information, or personal information (“Security Event”). If there is a Security Event, CloudQuery shall (i) take all reasonable steps to mitigate any potential damages; and (ii) promptly respond to reasonable security-related inquiries from Client and take all reasonable steps to identify, investigate, and resolve applicable security issues on a timely basis commensurate with the level of risk involved.

10.1 CloudQuery represents and warrants that the Software will function during the Subscription Period in substantial compliance with the applicable Documentation. In order to be entitled to any remedy based on a purported breach of the foregoing representation and warranty, Client must inform CloudQuery of the purported deficiency in the Software’s functionality within thirty (30) days of the day on which Client becomes aware of the condition giving rise to such claim. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. CloudQuery makes no warranty that the Software will meet Client’s requirements or be available on an uninterrupted, secure, or error-free basis.

10.2 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, CLOUDQUERY EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, FROM ANY SOURCE, WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

10.3 Client assumes sole responsibility and liability for Client’s and Client’s Users’ use of any output and/or results obtained from the use of the Software and for conclusions drawn from such use. CloudQuery shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to CloudQuery by Client in connection with the Software or any actions taken by CloudQuery at Client’s direction that are consistent with such direction. Other than third-party products, services, software or web sites provided by CloudQuery to facilitate performance of the Services, CloudQuery shall have no liability for any claims, losses or damages arising out of or in connection with Client’s or any User’s use of any third-party products, services, software or web sites that are accessed via links from within the Software.

11.1 Client will indemnify, defend and hold harmless CloudQuery and its officers, directors, employees and agents, from and against any third-party claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and professional fees, arising out of or in any way connected with Client’s access to or use of the Software otherwise than in accordance with this Agreement, provided that CloudQuery: (a) promptly notifies Client in writing of the claim; (b) grants Client sole control of the defense and settlement of the claim; and (c) provides Client, at Client’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.

11.2 CloudQuery will indemnify, defend and hold harmless Client and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and professional fees, to the extent based upon a third-party claim that the Software, as provided by under this Agreement and used within the scope of this Agreement, infringes or misappropriates any intellectual property right in any jurisdiction, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Client, provided that Client: (i) promptly notifies CloudQuery in writing of the claim; (ii) grants CloudQuery sole control of the defense and settlement of the claim; and (iii) provides CloudQuery, at CloudQuery’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. If use of any of the CloudQuery Materials and/or Software is, or in CloudQuery’s reasonable opinion is likely to be, the subject of a claim specified in this Section, then CloudQuery may, at its sole option and expense: (a) procure for Client the right to continue using the CloudQuery Materials and/or Software; (b) replace or modify the CloudQuery Materials and/or Software so that it is non-infringing while maintaining substantially equivalent in function to the original CloudQuery Materials and/or Software; or (c) if options (a) and (b) above cannot be accomplished despite CloudQuery’s reasonable efforts, then CloudQuery or Client may terminate this Agreement and CloudQuery will provide pro rata refund of unused/unapplied fees paid in advance for any applicable subscription term. THE PROVISIONS OF THIS SECTION 11.2. SET FORTH CLOUDQUERY’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INDEMNIFICATION OBLIGATIONS FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR RESULTING FROM CLIENT’S ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SOFTWARE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF AN EXCLUSIVE REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EITHER PARTY’S TOTAL LIABILITY TO THE OTHER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY (WHETHER UNDER WARRANTY, CONTRACT, TORT OR OTHERWISE) WILL BE LIMITED TO AN AMOUNT EQUAL TO THE AMOUNTS PAID AND PAYABLE TO CLOUDQUERY BY CLIENT FOR THE SOFTWARE IN THE 11 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO LIABILITY ARISING FROM A BREACH OF SECTION 3.1 OR FROM INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.

loudQuery will have no obligation of any kind to provide support of any kind for problems in the operation or performance of the Software to the extent caused by any of the following: (i) non-CloudQuery software or hardware products or use of the Software in conjunction therewith (other than products of CloudQuery’s third party vendors in provision of the Services); or (ii) Client’s use of the Software other than as authorized in this Agreement or as provided in the Documentation. If CloudQuery determines that it is necessary to perform support services for a problem in the operation or performance of the Software that is caused by any of the issues set forth above in this Section, then CloudQuery will notify Client and have the right to invoice Client for all such support services performed by CloudQuery and approved by Client.

Client agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Software, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.

15.1 This Agreement and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Client and CloudQuery irrevocably consent to the jurisdiction of, and venue in, the state or federal courts located in the Northern District of California for any disputes arising under this Agreement, provided that the foregoing submission to jurisdiction and venue shall in no way limit the obligation to arbitrate disputes set forth in Section 15.2.

15.2 Except for actions to enforce (i) intellectual property rights and (ii) an arbitrator’s decision hereunder, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by arbitration, remotely to the extent possible and otherwise in Delaware. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

16.1 Assignment. Neither party may assign this Agreement without the other party’s prior written consent and any attempt to do so will be void, except that either party may assign this Agreement, without the other party’s consent, to a successor or acquirer, as the case may be, in connection with a merger, acquisition, sale of all or substantially all of such party’s assets or substantially similar transaction, provided, however, that Client may not assign this Agreement to a competitor or existing customer of CloudQuery without CloudQuery’s prior written consent. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.

16.2 No Partnership or Joint Venture. The Agreement is not intended to be, and shall not be construed as, an agreement to form a partnership, agency relationship, or a joint venture between the parties. Except as otherwise specifically provided in the Agreement, neither party shall be authorized to act as an agent of or otherwise to represent the other party.

16.3 Headings. Captions to, and headings of, the articles, sections, subsections, paragraphs or subparagraphs of this Agreement are solely for the convenience of the parties, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof.

16.4 Publicity. Client grants CloudQuery the right to use Client’s company name and logo as a reference for marketing or promotional purposes on CloudQuery’s website and in other public or private communications with its existing or potential customers, subject to Client’s standard trademark usage guidelines as provided to CloudQuery from time-to-time.

16.5 No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.

16.6 Severability & Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of each party.

16.7 Notices All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) twenty-four (24) hours after having been sent via electronic mail to the contact person at the address listed in each instance on Key Agreement Terms page unless a party notifies the other party in writing of a change to the contact person and/or the contact person’s contact information. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.

16.8 Entire Agreement. This Agreement, together with all exhibits incorporated herein as set forth in Section C of the Key Agreement Terms and any subsequently executed Order Form, constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.

16.9 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.

16.10 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.