These terms of service (TOS) are entered into between Genii Research, LLC, d/b/a CloudDesks and/or CloudDesks.com (CloudDesks, we, us, or our) and you (Customer, you, your, or yours). Both CloudDesks and Customer agree to be bound by these TOS (i) from and after the time CloudDesks and Customer enter into a Service Agreement (Service Agreement) and (ii) at any time when you, or your End Users (as defined below), clicks “OK” on the login screen, permitting access to the CloudDesks system. The date you agree to these TOS is the “Effective Date”. The entity set out in the Service Agreement signed between us and you is our customer, and if there is no Service Agreement, the entity shown in our billing records is deemed to be our customer. These TOS contain provisions that you are required to apply to those individuals using your portion of the CloudDesks system, and includes your officers, directors, employees, members, agents, authorized users, and/or customers (End Users). It is your responsibility to ensure that these provisions, or those no less protective of our interests, are included in policies, contracts and other agreements with your End Users. You are responsible for your End Users under these TOS.
This TOS may be amended by us at any time. Except in an emergency, we agree to provide you with thirty days notice prior to the effective date of any amendment. Notice will be provided to you though your login screen. If the amendment materially affects your ability to use the CloudDesks system, you may terminate your subscription and use of the CloudDesks system by providing us with written notice prior to the effective date of the amended TOS, or, if we have amended the TOS in an emergency, within thirty days from the date of our amendment.
- Our Other Agreements are Incorporated into These TOS
The terms of any Service Agreement between CloudDesks and Customer are hereby incorporated into these TOS. To the extent that such a Service Agreement exists between CloudDesks and Customer and this Service Agreement conflicts with these TOS, the terms of these TOS shall prevail.
- Services We Provide to You
The features and details of the services governed by these TOS are described in the Service Agreement as of the Effective Date (CloudDesks Services). Should the CloudDesks Services change subsequent to the Effective Date, we have no obligation to modify the Service to reflect such a change. The specific services chosen by you are referred to together as the “Services.” All of the Services are Shared Services and are not exclusive for your use. You agree to use the Services in a way that respects the right of our other users to use the Services, and not to act in a way that unreasonably interferes with our ability to provide the Services to other users.
Certain aspects of the Service may be provided by third-parties. These third-parties may have reserved the right to make changes, including material changes, to the products provided by them and incorporated into the Services. If a third party makes a change to its products, you may terminate your Service Agreement and these TOS, if it materially affects the Services.
The support we provide Customers is set out in the Service Agreement. This page sets out our only obligations to provide technical and other support for your use of the Services. You acknowledge and agree that you have read this, and agree that our support is set out in it, and any limitations on support.
- Contact Information
You are required to provide us with accurate information when setting up your account, during the course of our relationship, and when corresponding with us. We have no responsibility, or liability, for interruptions in the Service, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information or your failure to monitor the email address you provided to us, including failing to monitor your SPAM filter.
These TOS will continue for the term set out on the Service Agreement. After the expiration of the Initial Term of the Service Agreement, these TOS will renew for successive periods of one (1) month during any time that Customer continues to use the CloudDesks system (regardless of a change in the Monthly Cost of the Services), until such time as the Service Agreement is terminated, or a replacement Service Agreement is agreed to between the parties.
You are responsible for the fees and charges (Fees) set forth in the Service Agreement, or in terms subsequent to the Initial Term, based on a fee and charges increase notice sent to you. Recurring Fees are billed in advance (typically, on or about the 15th of the month prior to service) and other Fees are billed in arrears. Payment terms are Net 20.
Our obligation to provide the Service is contingent on your payment of the Fees by the due date. It is your responsibility to ensure that we receive payment of the Fees. You must pay the Fees without set off or deduction. Should the Service be suspended, for any reason, Fees will continue to accrue. If the Fees are not paid by your financial institution on the Due Date, your account will be considered delinquent. To reinstate your account, you will be required to pay, depending on the reason for the delinquency a reinstatement fee of $60.
- Bill Disputes
If you believe there is an error on your bill you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. Your dispute must include sufficient facts for us to investigate your claims and be received by us at least five days prior to the Due Date (Dispute Deadline). You waive your right to dispute any charges or Fees if you fail to meet the Dispute Deadline. If we find that your claim is valid, we agree to credit the account that is the subject of the dispute the next time Fees are due. If you contact your credit card company, prior to notifying us of the dispute, and initiate a “charge back” based on this dispute, and your charge back claim is past the Dispute Deadline, you will be charged a $150 investigation fee. This fee compensates us for the investigation your credit card issuer requires us to conduct in order to demonstrate our right to payment.
7.1. Money Back Guarantee
The Service carries an unconditional 30-day satisfaction guarantee (Guarantee). To cancel the Service covered by the Guarantee, and receive a refund, you must contact us within 30 calendar days following the Effective Date for the Service covered by the Guarantee. If you paid us by credit card we will credit the card on file, otherwise we will send you a check.
7.2. Termination Prior to Renewal
Either party may choose not to renew these TOS by providing written notice to the other no later than ten days before the expiration of the Initial Term or Renewal Term for the particular Service that the party does not want to renew. If you terminate these TOS prior to its expiration, you will not receive a refund of any prepaid Fees.
7.3. Termination for Material Breach
Either party may terminate these TOS upon the occurrence of a material breach, if this breach has not been cured by the other party within thirty days of their receipt of written notice of the breach. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action. A decision to cease offering Third-Party Services will not be a material breach.
7.4. Termination for Your Violation of Our Policies
We reserve the right to immediately suspend the Service and/or terminate these TOS: (i) for a violation of any of our policies, including those incorporated by reference or those of Third Party Service providers; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights, nor will you receive a refund of any Fees.
7.5. Disposition of Data upon Suspension or Termination.
When your account is suspended or terminated, the data and other technology resident on CloudDesks’ servers may be deleted. It is your obligation, regardless of whether you believe a suspension or termination is authorized under these TOS, to secure this data and ensure that it remains available to you. CloudDesks has no obligation to preserve data after a suspension or termination.
- Use of the Services
Your use of the Services provided under the Service Agreement must be reasonable. You may not place excessive burdens on our CPUs, servers or other resources. You agree that we may place restrictions on your use of the Services, and charge you excess bandwidth fees, to the extent that they exceed the use of the Services by similarly situated customers. You understand that bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result in our need to place restrictions on your use of the Services.
You agree to cooperate with us to facilitate your use of the Services. This cooperation includes, but is not limited to, providing us with correct contact and billing information, designing material that is “server ready” and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Services.
Upon termination or expiration, your account will be closed. We have no responsibility to forward email or other communications for you once your account is closed. We also have no responsibility to preserve or secure your data. You are encouraged to keep the Services active during a transition period should you seek to forward your email or other communications, or to move your data to another provider.
- Licenses and Intellectual Property
9.1. License from CloudDesks to You
CloudDesks grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by CloudDesks solely to access and use the Services. This license terminates on the expiration or termination of these TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in CloudDesks’ technology and hardware shall remain with CloudDesks or CloudDesks’ licensors. You are not permitted to circumvent any devices designed to protect CloudDesks’, or its licensor’s, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
The Services may not be used by the U.S. Government, or any state, local, county, parish, or foreign governmental entity, of any type without prior written permission from us.
9.2. Licenses from You to CloudDesks
We may use information you provide to us for technical support, implementation, operation or administration of the Service (Operational Information). Operational Information, as well as aggregate information gleaned from the operation of our business in general, will be used to improve, or create, new products and services. We shall be the exclusive owners of the resulting intellectual property. You waive any rights you may have in this intellectual property, and assign all right, title and interest in it to us and agree to cooperate with us to secure our rights.
- Representations and Warranties
We each warrant to the other that: (i) we have the power, authority and legal right to enter into the Service Agreement, and these TOS; and (ii) we have the power, authority and legal right to perform our obligations under the Service Agreement, these TOS and all incorporated provisions.
10.2. Your Representations and Warranty
You represent and warrant to CloudDesks that: (i) you have the experience and knowledge necessary to use the Service; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the internet; (iii) you will provide us with material that may be implemented by us to provide the Service without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service; (v) that in entering into these TOS, and performing the obligations set out in it, you will not violate any applicable laws and regulations; (vi) that you will make back up copies of your data even if you purchase “back up” services from CloudDesks; (vii) that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to CloudDesks, or which may be accessed or transmitted using the Service and that, at our request, you will provide us evidence of such ownership or license; and (viii) that to the extent you do business with other parties using the Service, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 10.1, CLOUDDESKS HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. CLOUDDESKS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. CLOUDDESKS IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR AN END USER VIA THE SERVICE PROVIDED BY US. CLOUDDESKS SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY CLOUDDESKS. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO CLOUDDESKS SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM CLOUDDESKS, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES DO NOT ALLOW CLOUDDESKS TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.
- Limitation of Liability
You agree that CloudDesks has no liability, whatsoever, for: (i) content access from the Internet by you (including your employee(s), officer(s), director(s), affiliate(s), agent(s), member(s) or other person(s) allowed by you to use the CloudDesks system) or an End User(s); or (ii) for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our network.
IN NO EVENT WILL CLOUDDESKS’ LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY CLOUDDESKS FROM YOU FOR THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM CLOUDDESKS SHALL BE INTERPRETED TO INCLUDE CLOUDDESKS’ EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO YOU THROUGH CLOUDDESKS.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING (BUT NOT LIMITED TO) NEGLIGENCE, HOLD CLOUDDESKS OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF CLOUDESKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS CLOUDDESKS’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Backup of CloudDesks Systems
The CloudDesks system is backed up on a daily basis. These backup are stored as follows: (a) a set of such backup information generated by Microsoft Windows Server Backup and/or Microsoft Data Protection Manager is stored within the CloudDesks system and is kept for thirty days, and (b) a set of backup information of Customer Data generated by “Jungledisks” is stored offsite (on the Jungledisks system) and is kept for thirty days. These backup procedures are subject to change without notice.
If the parties have not signed a non-disclosure agreement, then this paragraph will apply. Information that is disclosed by one party to the other party, and that is marked “confidential,” or which under the circumstances ought reasonably to be treated as confidential information (including the Service Agreement and these TOS and any technical information regarding the CloudDesks system), will be treated as confidential by the receiving party. The receiving party will not disclose to a third party such information, or use such information other than for the purposes for which it was provided, without the written consent of the other party; this limitation will apply for a period of three years after disclosure of such confidential information. The foregoing limitations do not apply to the extent such information: (a) is or subsequently becomes publicly available other than through a breach of these limitations; (b) is already known to the receiving party at the time of disclosure; (c) is developed by the receiving party independent of such information; or (d) is rightfully received from a third party without restrictions on disclosure or use, or (e) is the subject of a subpoena issued by a court, legislative or other governmental body having valid jurisdiction over the subject of the subpeona.
- General Provisions
Notices regarding these TOS and and the Service Agreement should be directed to:
For notices to you: notices will be sent to you the first possible address of the following: (a) the notice address that you have given us written notice of, (b) the address in the Service Agreement, or (c) your billing address. Notices to you may be provided by email and/or by USPS regular mail. You may change your address for notices by sending us written notice of such new address for notices. It is your obligation to ensure that we have the most current address for you in our records.
For notices to CloudDesks: notice should be sent to:
50 Division Avenue, Suite 16
Millington, NJ 07946
Attn: David Zacharisen
15.2. Force Majeure
Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
15.3. Choice of Law, Jurisdiction and Venue
The parties agree that all disputes shall be brought before U.S. District Court for the District of New Jersey located in Newark, New Jersey (District Court). If the District Court may not consider the dispute, all disputes shall be brought before the New Jersey Superior Court, located in Morristown, New Jersey. The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of these TOS or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of New Jersey, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
15.4. No Waiver
No waiver of rights under these TOS, or any CloudDesks’ policy, or agreement between you and CloudDesks shall constitute a subsequent waiver of this or any other right under these TOS.
These TOS may be assigned by us. It may not be assigned by you. These TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
In the event that any of the terms of these TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from these TOS. All remaining terms of these TOS shall remain in full force and effect.
15.7. No Agency
These TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
The following paragraphs shall survive the expiration or termination of these TOS: 1, 6, 11, 12, 13, 15.1, 15.3, 15.8.