Customer Agreement

Customer Agreement

Digital Synergy Customer Agreement

Last Update: 28.07.2023

This Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of Cloud Archive’s data storage services (the “Cloud Archive Service”) and is an agreement between you or the company you represent (“you” or “your”) and Digital Synergy Ltd (“Cloud Archive,” “we,” “us,” or “our”). Your acceptance of this Agreement, and any other documents incorporated by reference is required before you can set up a Cloud Archive account. Product descriptions, including purchase options and applicable billing procedures, may be found on the Product Descriptions Page. In the event of any conflict between the terms and conditions of this Agreement and any exhibit, policy, or product terms, the terms of the applicable exhibit, policy or product terms shall prevail.

CLICKING ON THE “ACCEPT” BUTTON OR CREATING A CUSTOMER ACCOUNT AND DOWNLOADING, INSTALLING AND/OR USING THE CLOUD ARCHIVE SERVICE OR ANY TECHNOLOGY, IDEA, DATA, DATABASES, ALGORITHM OR INFORMATION CONTAINED THEREIN, ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AND CLOUD ARCHIVE, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH RESPECT TO YOUR USE OF THE SERVICES. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND THAT THE CLOUD ARCHIVE SERVICE WILL BE USED ONLY IN ACCORDANCE WITH THESE TERMS AND WITH ALL APPLICABLE LAWS.

1. Use of the Cloud Archive Service

1.1 Access. Subject to the terms and conditions of this Agreement, Cloud Archive grants you and your Authorized Users the right to access and use the Cloud Archive Service (including any customer portals which may also be made available to you as part of or through with the Cloud Archive Service) in accordance with the Documentation. “Documentation” means the user, technical and admin guides for the Cloud Archive Service.
1.2 Customer Accounts.
(a) You must register an account with us (a “Customer Account”) in order to use the Cloud Archive Service. We will use your Account Information in accordance with our Privacy Policy and you consent to such use, where “Account Information” means information about you that you provide to us in connection with the creation or administration of your Customer Account, including names, usernames, phone numbers, email addresses and billing information associated with your Customer Account.
(b) You agree to provide accurate and complete information in the creation of your Customer Account and agree to update this information with any changes. You may authorize others (collectively, “Authorized Users”) to use the Cloud Archive Service on your behalf, but you remain responsible for the acts and omissions of such Authorized Users. We reserve the right to suspend or terminate any Customer Account, or the access of any Authorized User, for any reason, including if any registration information is inaccurate, untrue or incomplete, or if you or any of your Authorized Users fail to maintain the security of any access credentials.
(c) You and your Authorized Users are responsible for ensuring that any access credentials are kept confidential and are not disclosed to any third party, and for all activity that occurs under your Customer Account.
(d) You agree to, and will ensure that each Authorized User will, notify us at support@cloud-synergy.eu immediately upon learning of any unauthorized access to a Customer Account or any other suspected security breach.
1.3 Software; Third-Party Content.
(a) Certain Cloud Archive Services may require you to install software. In such cases, Cloud Archive grants to you a non-exclusive, nontransferable, limited license (without the right to sublicense) to install, execute and use such software solely: (i) in object code format; (ii) for your internal use, with no right to make such software available to third parties either by transferring copies thereof or by providing a hosted service; and (iii) in accordance with Documentation and the terms hereof.
(b) Third-Party Content, if any, may be used by you, solely at your option. Use of Third-Party Content is solely governed by the separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges. “Third Party Content” means content made available to you by any third party on the Cloud Archive website or in conjunction with the Cloud Archive Service.
1.4 Limited Cloud Archive Services. We may offer the Cloud Archive Service for free in limited circumstances, such as a free trial or pre-release version of any Cloud Archive Service (“Limited Cloud Archive Service”). The Limited Cloud Archive Service requires an active Customer Account and is subject to the time limits that are made known to you at the time of order fulfillment, via email or the Documentation. You agree that to use the Limited Cloud Archive Service in compliance with any related Documentation and restrictions. Your use of any Limited Cloud Archive Service is for the sole purpose of evaluating and testing the applicable service and providing Feedback to Cloud Archive. Any pre-release version of a Cloud Archive Service may be experimental in nature, not fully tested and may be discontinued at any time with or without notice, at which point your access will end and Your Content shall be deleted.
1.5 Your Content. “Your Content” means content that you or any Authorized User transfers to us for storage or hosting by the Cloud Archive Service in connection with your Customer Account. Your Content does not include your Customer Account information. You will ensure that Your Content does not violate any terms of this Agreement, the Documentation, or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Feedback; (b) you have all rights in Your Content and Feedback necessary to grant the rights contemplated by this Agreement.
1.6 All digital files are retained for a period of ninety (90) days. It is not permissible to make alterations or delete files within this designated timeframe.
1.7 Acceptable Use. You represent and warrant to us that Your Content and use of the Cloud Archive Service will not violate the Acceptable Use Policy.

2. Service Changes; Support and Maintenance

2.1 To the Cloud Archive Service. We may modify or discontinue any or all of the Cloud Archive Service or change or remove functionality of any or all of the Cloud Archive Service from time to time. We will notify you of any material change to or discontinuation of the Cloud Archive Service by posting the revised version on our website and/or communicating it to you. Any changes to the Cloud Archive Services will be effective ten (10) days from the time we post such changes. Your continued use of the Cloud Archive Services thereafter constitutes your acceptance of the changed Cloud Archive Service.
2.2 To the APIs. We may change or discontinue any APIs for the Cloud Archive Service from time to time. For any discontinuation of or material change to an API, we will use commercially reasonable efforts to continue supporting the previous version of such API for 12 months after the change or discontinuation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would cause us to violate the law or requests of governmental entities).
2.3 Support and Maintenance. During the Term, Cloud Archive will provide you with reasonable support in accordance with Cloud Archive’s Service Level Agreement. Cloud Archive may temporarily limit or suspend the availability of all or part of the Cloud Archive Service, without liability, if it is necessary for reasons of public safety, security, maintenance of the Cloud Archive Service, interoperability of services, data protection, or to perform work that is necessary for operational or technical reasons.
2.4 Assistance is available through our Ticket System. The client must authorize specific employees who are eligible to utilize the Support service. This authorization involves notifying Cloud Archive Support through a Ticket about which employees, along with their email addresses, should be granted access to the support service. Any requests related to customer accounts and support that are not submitted through the Ticket System will not be taken into account by Cloud Archive. It is important to note that Cloud Archive holds no responsibility for the outcomes arising from non-compliance with this requirement.

3. Security and Data Privacy

3.1 Security. Without limiting your obligations under Section 1.5 or the terms of Section 10, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat our safeguards. You are responsible for properly configuring and using the Cloud Archive Service and otherwise taking appropriate action to secure, protect and backup your Customer Account(s) and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.
3.2 Data Privacy. In connection with providing and using the Cloud Archive Service, each Party agrees to comply with the terms of Cloud Archive’s Data Processing Addendum.

4. License Grant; Acknowledgment

4.1 License of Your Content. You grant to Cloud Archive a worldwide, non-exclusive, royalty-free, fully-paid up, transferable and sublicensable right to Your Content to the extent necessary to perform this Agreement. You retain all rights in Your Content, subject to the rights granted to us in this Agreement with respect to the performance of our obligations. You may modify or remove/export Your Content via the Customer Account at any time. Your Content will be irretrievably deleted upon (i) you or your Authorized User’s deletion of Your Content or (ii) cancellation or termination of the Customer Account.
4.2 Log-In Credentials provided to you by Cloud Archive or generated by the Cloud Archive Service are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person.

5. Fees and Payment

5.1 Service Fees. Fees for the Cloud Archive Service (“Fees”) will be calculated and billed based on the Cloud Archive Service selected by you, as set forth on the Pricing Page, the Product Descriptions Page, and the Cloud Archive quotation provided to you (which takes precedence). We may increase or add new Fees for any Cloud Archive Service by giving you at least thirty (30) days’ prior notice.
5.2 Payment Terms. Payment is due within seven (7) days of the invoice date, without offset or deduction of any kind. Payment is due in the currency set forth in the quote. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. If we suspect that your account is at risk of non-payment, as reasonably determined in our discretion, we may bill you more frequently.
5.3 All payments should be directed to the bank account of Digital Synergy Ltd. or processed through credit cards. Payment details are provided on every invoice. In case of credit card payment rejection, Cloud Archive holds no liability.
5.4 Taxes. All Fees and charges are exclusive of taxes or duties, including, without limitation, value-added, use, excise, sales and transactions taxes, surcharges or levies (“Taxes”), which you must pay. If we have a legal obligation to pay or collect Taxes, we will invoice for and you will pay such Taxes, unless you furnish us a valid exemption certificate. Taxes may not be deducted from payment owed to Digital Synergy Ltd. If you are required by law to withhold Taxes from any payment due hereunder, you must increase the payment as necessary so that Digital Synergy Ltd will receive an amount equal to the amount it would have received had no such deductions or withholdings been made.
5.5 Invoice Disputes. If you desire to dispute in good faith an invoiced amount, you must, within thirty (30) days of the invoice date, (i) pay the invoiced amount and (ii) provide notice of the details of the dispute, together with all supporting documentation. If you do not timely submit a documented dispute notice per this Section, you waive all rights to dispute such amounts, including any claim of set-off or reimbursement.

6. Proprietary Rights; Confidentiality

6.1 Reservation of Rights. All software, code, hardware, trademarks, trade secrets, proprietary methods and systems used to provide the Cloud Archive Service (the “Cloud Archive”) and the content made available or displayed by us through the Cloud Archive Service, including all text, graphics, images and the look and feel of such Cloud Archive Service (collectively, the “Cloud Archive Content”) are owned by or licensed to Cloud Archive, including all intellectual property rights therein. Nothing in this Agreement or any of the Documentation shall be considered an assignment or other transfer of ownership in and to the Cloud Archive Technology or Cloud Archive Content to you, either expressly, or by implication, estoppel, or otherwise. Other than the authorizations or licenses as may be conferred or granted by us to you in this Agreement or any of the Documentation, Cloud Archive reserves all right, title and interest in and to the Cloud Archive Technology and Cloud Archive Content.
Except as expressly provided in this Agreement, you obtain no rights under this Agreement from us, our Affiliates or our licensors to the Cloud Archive Service, including any related intellectual property rights. Some Cloud Archive Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the Cloud Archive Content or Third-Party Content that is the subject of such separate license.
6.2 Feedback. Notwithstanding anything to the contrary in this Agreement, all intellectual property rights in the Feedback, if any, and all other ownership in any ideas, modifications, enhancements, improvements, or any other suggestion specifically relating to the Cloud Archive Service, are hereby assigned to Cloud Archive and shall be the sole and exclusive property of Cloud Archive. “Feedback” means any suggestions, enhancement requests, recommendations, corrections or other feedback provided by you, your Affiliates, and/or Authorized Users relating to the features or operation of the Cloud Archive Service and Documentation.
6.3 Confidentiality. Either party may, from time to time, provide to the other certain non-public information including business information, pricing, forecasts, financial plans and data, marketing plans, and unannounced product information (“Confidential Information”). Confidential Information shall also include the Cloud Archive Content and Your Content, and any other information disclosed by a party to the other party, in whatever form, and designated in writing as proprietary or confidential, or which a reasonable person would understand to be proprietary or confidential in nature. During the term of this Agreement and for three (3) years following its termination, each party will not disclose any such Confidential Information except as set forth herein. The receiving party shall hold in confidence, and shall not disclose any Confidential Information to any person or entity except to an Affiliate, a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event, shall less than reasonable care be used. The parties expressly agree that the terms of this Agreement are Confidential Information and you further agree you will not use the Cloud Archive Service for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the services and will not publicly post any analysis or reviews of the services without Cloud Archive’s prior written approval. A receiving party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing party in enforcing its rights
Confidential Information excludes information that: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that, where legally permitted to do so, it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
Notwithstanding any other provision of this Agreement, both parties acknowledge that any unpermitted use of the disclosing party’s Confidential Information may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use.

7. Term; Termination; Suspension

7.1 Term.
(a) Agreement Term. Subject to the provisions of Section 7.2, the term of your access to the Cloud Archive Service will continue for so long as you have an active and fully paid up Customer Account (the “Term”).
(b) Reserved Capacity Order Form Term. For reserved capacity purchases, the term of the Order Form will be as set forth in the applicable quote, and will automatically renew for successive periods of one (1) year, unless either party provides written notice of its intent not to renew at least 30 days prior to the end of the then-current order form term.
7.2 Termination.
(a) Termination For Convenience. Either party may terminate this Agreement and your Customer Account for any reason by providing the other party at least thirty (30) days’ advance notice, provided, however, if you have elected the Reserved Capacity prepaid Cloud Archive Service, you remain responsible for all fees due for the balance of the then-current reserved capacity term, and you shall not be entitled to any refunds.
(b) Termination for Failure to Pay. In the event you fail to make any payment as set forth in this Agreement, we reserve the right to disable your Customer Account after twenty-four (24) hours’ notice to you. You are required to make payment of all outstanding amounts before your Customer Account is re-enabled.
If you fail to respond to the first notice of payment failure, we will provide a second final notice that if outstanding amounts are not paid in full within twenty-four (24) hours our delivery of the second notice, we reserve the right to delete your Customer Account and Your Content within seventy-two (72) hours from such final notice.
(c) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement and your Customer Account for cause if the other party is in material breach of this Agreement and/or your Customer Account and the material breach remains uncured for a period of thirty (30) days from receipt of notice by the other party.
(ii) By Cloud Archive. We may also terminate this Agreement and/or your Customer Account immediately upon notice to you (A) if our relationship with Affiliates and/or a third-party partner who provides software or other technology we use to provide the Cloud Archive Service expires, terminates or requires us to change the way we provide the software or other technology as part of the Cloud Archive Service, or (B) in order to comply with law.
7.3 Effect of Termination. Upon termination: (i) all of your rights under this Agreement and your Customer Account immediately terminate; (ii) you remain responsible for all fees and charges you have incurred through the termination date (except for Reserved Capacity, which is addressed in Section 7.2(a) above) and are responsible for any fees and charges you incur up to termination; (iii) you will immediately return or, if instructed by us, destroy all Cloud Archive content in your possession; and (iv) those terms intended to survive termination shall continue to apply in accordance with their terms.
7.4 Immediate Termination or Suspension. We may terminate or suspend (in our sole discretion) your or any Authorized User’s right to access or use any portion or all of the Cloud Archive Service immediately upon notice to you if we determine:
(a) your, or any Authorized User’s, use of the Cloud Archive Service (i) is in violation of the the Acceptable Use Policy, (ii) poses a security risk to Cloud Archive, the Cloud Archive Service, any other Cloud Archive customer, or any third party, (iii) could adversely impact our systems, the Cloud Archive Service or the systems or content of any other Cloud Archive customer, or (iv) could subject us, our Affiliates, or any third party to civil or criminal liability;
(b) you are, or any Authorized User is, in material breach of this Agreement;
(c) you are in breach of your payment obligations under Section 5; or
(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
7.5 Effect of Suspension. If we suspend your right to access or use any portion or all of the Cloud Archive Service, (a) you remain responsible for all Fees and charges you incur during the period of suspension; and (b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.

You acknowledge and consent that Cloud Archive bears no legal responsibility for the permanent loss of your data that has been deleted from the cloud and is irretrievably unavailable, effectively ceasing to exist.

8. Indemnification

8.1 Your Indemnity Obligations. You will defend, indemnify, and hold harmless us, our Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) arising out of or relating to any third-party claim concerning: (a) your or any Authorized Users’ use of the Cloud Archive Service (including any activities under your Customer Account and use by your Authorized Users); (b) violation of applicable law, rule or regulation by you, your Authorized Users or Your Content; (c) your failure to pay any applicable Taxes; and (d) any claim alleging that any of Your Content infringes or misappropriates any privacy or third party intellectual property rights.
8.2 Cloud Archive Indemnity Obligations.
(a) Subject to the limitations in this Section 8, Cloud Archive will defend you and your employees, officers, and directors against any third-party claim alleging that the Cloud Archive Service infringes or misappropriates a third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement agreed to by Cloud Archive in writing.
(b) We will have no obligation or liability under this Section 8.2 arising from infringement by combinations of the Cloud Archive Service with any other product, service, software, data, content or method. In addition, Cloud Archive will have no obligations or liability arising from your or any Authorized User’s use of the Cloud Archive Service after Cloud Archive has notified you to discontinue such use. The remedies provided in this Section 8.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Cloud Archive Services.
(c) For any claim covered by Section 8.2(a), Cloud Archive will, at its election, either: (i) procure the rights to use that portion of the Cloud Archive Service alleged to be infringing; (ii) replace the alleged infringing portion of the Cloud Archive Service with a non-infringing alternative; (iii) modify the alleged infringing portion of the Cloud Archive Service to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Cloud Archive Services and this Agreement.
8.3 Process. The obligations under this Section 8 will apply only if the indemnified party: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.

9. Disclaimers

THE CLOUD ARCHIVE SERVICE IS PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT OF ANY STATUTORY RIGHTS THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE CLOUD ARCHIVE SERVICE OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE CLOUD ARCHIVE SERVICE OR ANY THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY OF YOUR CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

10. Limitations of Liability

EXCEPT IN THE CASE OF WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION.
EXCEPT IN THE CASE OF CLOUD ARCHIVE’S WILLFUL MISCONDUCT OR FRAUD, CLOUD ARCHIVE AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY CLOUD ARCHIVE UNDER THIS AGREEMENT FOR THE CLOUD ARCHIVE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. IF THE CLOUD ARCHIVE SERVICE (OR ANY OTHER CLOUD ARCHIVE PRODUCT) IS PROVIDED TO YOU WITHOUT CHARGE, THEN CLOUD ARCHIVE WILL HAVE NO LIABILITY TO YOU WHATSOEVER.
YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF CLOUD ARCHIVE SERVICE. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.

11. Modifications to the Agreement

We may modify this Agreement (including any policies or any links referenced herein) at any time by posting a revised version on the Cloud Archive website or by otherwise notifying you in accordance with Section 12.10. Subject to the foregoing, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Cloud Archive Service after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Cloud Archive website regularly for modifications to this Agreement.

12. Miscellaneous

12.1 Assignment. You may not assign or otherwise transfer this Agreement or any of the rights and obligations under this Agreement, without Cloud Archive’s prior written consent. Any assignment or transfer, or attempt thereof, in violation of this Section 12.1 will be void. Notwithstanding the foregoing, either party may assign this Agreement to an Affiliate, or to any entity that acquires by sale, merger or otherwise, all or substantially all or a portion of such party’s assets, stock or business. If another entity merges with or acquires Cloud Archive, or all, substantially all or a portion of our assets, stock or business you agree your encrypted stored data and information that Cloud Archive has collected from you, including personally identifiable information, may be transferred, and you consent to the secure transfer of such information, to such successor or assignee. “Affiliate” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with such party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
12.2 Affiliates, Subcontractors and Vendors. Some or all of the Cloud Archive Service, including support services, may be provided by Cloud Archive’s Affiliates, agents, subcontractors and information system vendors. The rights and obligations of Cloud Archive may be, in whole or in part, exercised or fulfilled by the foregoing entities, provided that Cloud Archive remains responsible for compliance with this Agreement.
12.3 Entire Agreement. This Agreement incorporates any policies or other information found at the published links by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement including those (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this Agreement are inconsistent with the terms contained in document referenced or linked herein, the terms contained in such document will control.
12.4 Force Majeure. We and our Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, epidemics, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
12.5 Governing Law. The laws of the EU Croatia, without reference to conflict of law rules, governs this Agreement and any dispute of any sort that might arise between the parties. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
12.6 Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Cloud Archive Service, including your transfer and processing of Your Content, the provision of Your Content to Authorized Users, and the Cloud Archive region in which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
12.7 Independent Contractors. Both parties are independent contractors with respect to each other.
12.8 Non-Exclusive Rights. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
12.9 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
12.10 Notice.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Cloud Archive website; or (ii) sending a message to the email address then associated with your account. You agree that all disclosures, notices and communications are considered received by you within twenty-four (24) hours of the time posted to Cloud Archive’s website, or within twenty-four (24) hours of the time emailed to you. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact Cloud Archive as follows: (i) by email transmission to sales@cloud-archive.eu; or (ii) by personal delivery, overnight courier or registered or certified mail to either Digital Synergy Ltd, the attention of the Legal Department and CFO. Notices provided by personal delivery will be effective immediately. Notices provided by email transmission or overnight courier will be effective one (1) business day after they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent.
12.11 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
12.12 No Waivers. The failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit a party’s right to enforce such provision at a later time. All waivers by a party must be in writing to be effective.
12.13 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.
12.14 Marketing. Each party may use the other party’s name, trade name, trademarks, icons, and logos (collectively, the “Brands”) to refer publicly to the other, orally and in writing, as a customer/vendor of the other solely in connection with the Cloud Archive Service and only during the Term. Any other use of a party’s Brands requires such party’s prior written consent.
12.15 Export Controls. Your use of the Cloud Archive Service is subject to compliance with EU and other applicable export control and trade sanctions laws, rules and regulations (collectively, “Export Control Laws”). You will not export, reexport, download or otherwise transmit the Cloud Archive Service, or technical data relating thereto, in violation of any applicable Export Control Laws. In particular, you acknowledge that the Cloud Archive Services, or any part thereof, may not be exported, transmitted, or re-exported to, or otherwise used in: (a) any country subject to a U.S. embargo or comprehensive trade sanctions or that has been designated a state sponsor of terrorism by the U.S. Government (“Sanctioned Countries”) and EU regulations; or (b) anyone identified on any U.S. Government restricted party lists (collectively, “Restricted Party Lists”) or EU. By purchasing the Cloud Archive Service, you represent and warrant that you are not located in any Sanctioned Country or on any Restricted Party List. You acknowledge that the Cloud Archive Service may not be available in all jurisdictions and that you are solely responsible for complying with applicable Export Control Laws related to the manner in which you choose to use the Cloud Archive Service, including your transfer and processing of Your Content and the region in which any of the foregoing occur.
12.16 Electronic Communications. By using Cloud Archive Service, you consent to receive electronic communications to the email address provided in your Customer Account. It is your responsibility to keep your email address current for notice purposes. You agree that any communications that Cloud Archive provides to you electronically satisfies any legal requirement that such communications be in writing.

Cork, 28.07.2023

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