AGORA.CLOUD AGREEMENT
Last updated: September 2019
This aGora.cloud Agreement is between you or the entity you represent, or if no such entity is designated by you in connection with a Subscription purchase or renewal, you individually ("you") and Kherian Soft S.L. ("Kherian", "we", "us", or "our") and consists of the below terms and conditions, as well as the TERMS OF USE AND SALE and the PRIVACY POLICY of Kherian (together, the "Agreement"). It is effective on the date we provide you with confirmation of your aGora.cloud Subscription or the date on which your Subscription is renewed as applicable. Key terms are defined in Section 9.
The whole text of the present AGORA.CLOUD AGREEMENT, as well as the documents derived from it, including those in the Annexes, have been written in Spanish and English, both versions being deemed authentic, but for legal purposes the text in Spanish is to be given priority of interpretation.
1 - USE OF SERVICES
1. RIGHT TO USE
We grant you the right to access and use the Services and to use the Software included with your Subscription, as further described in this agreement.
2. ACCEPTABLE USE
You may use the Product only in accordance with this Agreement. You may not reverse engineer, decompile, disassemble, or work around technical limitations in the Product, except to the extent that applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Product. You may not rent, lease, lend, resell, transfer, or sublicense the Product or any portion thereof to or for third parties.
3. END USERS
You control access by End Users, and you are responsible for their use of the Product in accordance with this agreement. For example, you will ensure End Users comply with the Acceptable Use Policy.
4. CUSTOMER DATA
You are solely responsible for the content of all Customer Data. You will secure and maintain all rights in Customer Data necessary for us to provide the Services to you without violating the rights of any third party or otherwise obligating Kherian to you or to any third party. Kherian does not and will not assume any obligations with respect to Customer Data or to your use of the Products other than as expressly set forth in this Agreement or as required by applicable law.
5. NON-KHERIAN PRODUCTS
We may make Non-Kherian Products available to you through aGora.cloud or other means. The use of any Non-Kherian Product will be governed by separate terms between you and the third party providing the Non-Kherian Product. For your convenience, Kherian may include charges for the Non-Kherian Product as part of your bill for the Services. Kherian, however, assumes no responsibility or liability whatsoever for any Non-Kherian Products.
If you install or use any Non-Kherian Product with the Services, then you, not Kherian, direct and control the installation and use of it with the Services through your actions. We will not run or make any copies of such Non-Kherian Products outside of our relationship with you.
If you install or use any Non-Kherian Product with the Services, you may not do so in any way that would subject our intellectual property or technology to obligations beyond those included in this Agreement.
Si utiliza cualquier Producto que no es de Kherian con los Servicios, no lo podrá hacer de una forma que someta nuestra propiedad intelectual e industrial o tecnología a obligaciones fuera de las incluidas en este Contrato.
6. RESPONSIBILITY FOR YOUR ACCOUNTS
You are also responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the Services.
7. UPDATES
We may make changes to the Services from time to time. We will provide you with 3 months prior notice before removing any material feature or functionality, unless security, legal, or system performance considerations require an expedited removal.
2 - SECURITY, PRIVACY AND DATA PROTECTION
1. SECURITY
We maintain appropriate technical and organizational measures, internal controls, and data security routines intended to protect Customer Data against accidental loss or change, unauthorized disclosure or access, or unlawful destruction. You are wholly responsible for configuring your Customer Solution to ensure adequate security, protection, and backup of Customer Data.
2. PRIVACY AND DATA LOCATION
We treat Customer Data in accordance with our Privacy Statement. Subject to any restrictions set forth in the Privacy Statement, we may transfer to, store, or process Customer Data in any country where we or our Affiliates or subcontractors have facilities used to provide or support the Services. We are a data processor (or sub-processor) acting on your behalf, and you appoint us to do these things with Customer Data in order to provide the Services to you. You will obtain any necessary consent from End Users or others whose personal information or other data you will be hosting using the Services.
3. OWNERSHIP OF CUSTOMER DATA
Except for Software we license to you, as between the parties, you retain all right, title, and interest in and to Customer Data. We acquire no rights in Customer Data, other than the right to host Customer Data within the Services, including the right to use and reproduce Customer Data solely as necessary to provide the Services.
4. USE OF CUSTOMER DATA
We will use Customer Data only to provide you the Services. This use may include troubleshooting to prevent, find, and fix problems with the operation of the Services. It may also include improving features for finding and protecting against threats to users. We will not use Customer Data or derive information from it for any advertising or other commercial purposes without your consent.
5. THIRD-PARTY REQUESTS
We will not disclose Customer Data to a third party (including law enforcement, other government entity, or civil litigant; excluding our subcontractors) except as you direct or unless required by law. Should a third party contact us with a demand for Customer Data, we will attempt to redirect the third party to request that data directly from you. As part of this effort, we may provide your basic contact information to the third party. If compelled to disclose Customer Data to a third party, we will promptly notify you and provide a copy of the demand, unless legally prohibited from doing so. You are responsible for responding to requests by third parties regarding your use of the Services, such as requests to take down content under the Organic Law of Protection of Personal Data (Ley Orgánica de Protección de Datos de Carácter Personal) of Spain.
6. SUBCONTRACTORS
We may hire other companies to provide limited services on our behalf, such as customer support. Any such subcontractors will be permitted to obtain Customer Data only to deliver the services we have retained them to provide, and they are prohibited from using Customer Data for any other purpose. We remain responsible for our subcontractors’ compliance with the obligations set forth in this agreement.
7. COMPLIANCE WITH LAW
We will comply with all laws applicable to our provision of the Services, including applicable security breach notification laws, but not including any laws applicable to you or your industry that are not generally applicable to information technology services providers. You will comply with all laws applicable to your Customer Solution, Customer Data, and your use of the Services, including any laws applicable to you or your industry.
3 - PURCHASING SERVICES
1. ORDERING
By ordering or renewing a subscription, you agree to the offer details for that Subscription offer. Unless otherwise specified in those offer details Services are offered on an "as available" basis and we make no guarantee that a particular quantity of Services will be available at the time of request. You may place orders for your Affiliates under this agreement and grant your Affiliates administrative rights to manage subscription, but Affiliates may not place orders under this agreement. If you grant any rights to Affiliates with respect to your subscription, such Affiliates shall be bound by this agreement and you agree to be jointly and severally liable for any actions of such Affiliates related to their use of the Products
2. PRICING AND PAYMENT
Payments are due and must be made according to the Offer Details for your Subscription. During the Term of your Subscription, prices for Services will not be increased, as to your Subscription, from those posted in the Portal at the time your commitment period commenced or renewed, except for Previews where prices are identified as temporary or for Non-Kherian Products for which we do not control the price. All prices are subject to change at the beginning of any Subscription renewal.
3. RENEWAL
Upon renewal of your Subscription, this agreement will terminate and your Subscription will thereafter be governed, by the terms and conditions set forth on the aGora Store" on the date on which your Subscription is renewed (the "Renewal Terms"). If you do not agree to any Renewal Terms, you may decline to renew your Subscription.
The Subscription renews automatically at the end of every contract period and until you terminate the Subscription.
4. TAXES
Prices are exclusive of any taxes. You shall pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to any order placed under this agreement and which we are permitted to collect from you under applicable law. You shall be responsible for any applicable stamp taxes and for all other taxes that you are legally obligated to pay including any taxes that arise on the provision of Products to your Affiliates.
4 - TERM, TERMINATION, AND SUSPENSION
1. AGREEMENT TERM AND TERMINATION
This agreement will remain in effect until the expiration, termination, or renewal of your Subscription, whichever is earliest.
2. SUBSCRIPTION TERM AND TERMINATION
You may terminate this Subscription at any time during its Term; however, you must pay all amounts due and owing before the termination is effective, and no refunds will be provided.
3. CUSTOMER DATA RETURN AND DELETION
You may extract and/or delete Customer Data at any time. When a Subscription expires or terminates, we will retain any Customer Data you have not deleted for at least 30 days so that you may extract it. You remain responsible for all storage and other applicable charges during this retention period. Following the expiration of this retention period, we will delete all Customer Data, including any cached or back-up copies, within 30 days of the end of the retention period. You agree that we have no additional obligation to continue to hold, export or return Customer Data and that we have no liability whatsoever for deletion of Customer Data pursuant to these terms.
4. REGULATORY
In any country where any current or future government regulation or requirement applies to us, but not generally to businesses operating there, presents a hardship to us operating the Services without change, and/or causes us to believe this Agreement or the Services may be in conflict with any such regulation or requirement, we may change the Services or terminate this Agreement. If we use this subsection 4(4) of the Agreement to change the Services, then you may terminate this Agreement.
5. SUSPENSION
We may suspend your use of the Services if: (1) it is reasonably needed to prevent unauthorized access to Customer Data; (2) you do not pay amounts due under this Agreement; or (3) you do not abide by the Acceptable Use Policy or you violate other terms of this Agreement. If one or more of these conditions occurs, then:
A suspension will apply to the minimum necessary part of the Services and will be in effect only while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. We will give at least 15 days notice before suspending for non-payment. If you do not fully address the reasons for the suspension within 60 days after we suspend, we may terminate your Subscription and delete your Customer Data without any retention period. We may also terminate your account if your use of the Services is suspended more than twice in any 12-month period.
5 - WARRANTIES
1. LIMITED WARRANTY
We warrant connectivity to aGora.cloud during at least the 99,95% of the time, except for the times that our server host provider (Microsoft® Windows Azure™ or Arsys internet S.L.U.) makes updates in its servers (each 2-3 months approximately), in order to maintain the security of the platform environment for all the apps and machines. This update process will produce the reset of the aGora.cloud's hosting services server, making them unavailable for users. There is no way to avoid security updates.
2. LIMITED WARRANTY EXCLUSIONS
This limited warranty is subject to the following limitations:
- any implied warranties, guarantees, or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;
- this limited warranty does not cover problems caused by accident, abuse, or use of the Products in a manner inconsistent with this agreement or our published documentation or guidance, or resulting from events beyond our reasonable control;
- this limited warranty does not apply to problems caused by any failure to meet minimum system requirements; and
- this limited warranty does not apply to Previews or free offerings.
DISCLAIMER. Other than this warranty, we provide no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply except to the extent applicable law does not permit them.
6 - LIMITATION OF LIABILITY
1. LIMITATION
The aggregate liability of each party under this agreement is limited to direct damages up to the amount paid under this Agreement for the Services giving rise to that liability during the 12 months before the liability arose.
2. EXCLUSION
Neither party will be liable for indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew that such damages were possible.
3. EXCEPTIONS TO LIMITATIONS
The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to the violation of the other's intellectual property rights by any of the parts.
7 - SOFTWARE
1. SOFTWARE PROVIDED FOR USE ON DEVICES
If the Software is provided to you with its own proprietary license terms, those terms control. If the Software does not have its own license terms, then you may install and use any number of copies of the Software on your devices for use with Services. This subsection does not apply to Software addressed in subsection 7(2).
2. SOFTWARE PROVIDED FOR USE WITHIN THE SERVICES
We may provide you with the option of running Software within the Services. Your use of that Software is subject to Kherian's proprietary license terms provided with the Software, as modified below:
You may use such Software only within the Services and only in conjunction with your permitted use of any applicable Services role. To the extent of any conflict between this paragraph and the proprietary license terms contained in the Software, this paragraph controls.
You may use such Software only within the Services and only in conjunction with your permitted use of any applicable Services role. To the extent of any conflict between this paragraph and the proprietary license terms contained in the Software, this paragraph controls.
3. EFFECT OF TERMINATION OR EXPIRATION ON SOFTWARE
If this agreement or the related Subscription is terminated or expires and you do not exercise an available buy-out option for Software, then you must delete all copies of Software and destroy any associated media.
4. THIRD PARTY SOFTWARE
Software may contain third party proprietary programs that are licensed under separate terms that are presented to you. Software may also contain third party open source programs that Kherian, not the third party, licenses to you under Kherian's license terms. Third party notices, if any, for such open source programs are included for your information only.
8 - MISCELLANEOUS
1. NOTICES
You must send notices by mail to the address below:
Kherian Soft, S.L.
Avda. Espronceda, 6A entlo.
12004 Castellón de la Plana
Spain
You agree to receive electronic notices from us, which will be sent by email to the aGora account you specify in aGora.cloud Subscription. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the aGora account email address that you specify in the user’s webpage is accurate and current, and you agree that any email notice that we send to such email address will be effective when sent, whether or not you actually receive the email.
2. ASSIGNMENT
You may not assign this agreement either in whole or in part.
3. SEVERABILITY
If any part of this agreement is held unenforceable, the rest remains in full force and effect.
4. WAIVER
Failure to enforce any provision of this agreement will not constitute a waiver.
5. NO AGENCY
You and Kherian are independent contractors. This agreement does not create an agency, partnership, or joint venture.
6. NO THIRD PARTY BENEFICIARIES
There are no third-party beneficiaries to this agreement.
7. APPLICABLE LAW AND VENUE
This agreement is governed by the laws of Spain. If we bring an action to enforce this agreement, we will bring it in the jurisdiction where you have your headquarters. If you bring an action to enforce this agreement, you will bring it in Spain. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights.
8. ENTIRE AGREEMENT
This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications.
9. INTERNATIONAL AVAILABILITY
Availability of the Services, including specific features and language versions, varies by country.
10. FORCE MAJEURE
Neither party will be liable for any failure in performance due to causes beyond its reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services). This section will not, however, apply to your payment obligations under this agreement.
11. MODIFICATIONS
We may modify this agreement at any time by posting a revised version on the legal information section of our Web (http://www.agora-erp.com or an alternate site we identify) or by notifying you in accordance with subsection 8(1). Modified terms that relate to changes or additions to the Product or that are required by law will be effective immediately, and by continuing to use the Services you will be bound by the modified terms. All other modified terms will be effective upon renewal (including automatic renewal) of an existing Subscription or order for a new Subscription.
12. CONTRACTING AUTHORITY
If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this Agreement on that entity’s behalf.
13. WAIVER OF RIGHT TO VOID ONLINE PURCHASES
To the maximum extent permitted by applicable law, you waive your rights to void purchases under this agreement pursuant to any law governing distance selling or electronic or online agreements, as well as any right or obligation regarding prior information, subsequent confirmation, rights of withdrawal, or cooling-off periods.
9 - DEFINITIONS
Any reference in this agreement to "day" will be a calendar day.
"Acceptable Use Policy" means a list of prohibited uses of the Services:
Neither you nor those that access the Services through you may use the Services:
- in a way prohibited by law, regulation, governmental order or decree;
- to violate the rights of others;
- to use the Services to try to gain unauthorized access to or disrupt any service, data, account or network by any means;
- to falsify any protocol or email header information (e.g., "poofing");
- to spam or distribute malware;
- in a way that could harm the Services or impair anyone else's use of them;
- or for any high risk use (where failure or fault of the Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage);
"Affiliate" means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. "Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity.
"Customer Data" means all data, including all text, sound, software, or image files that are provided to us by, or on behalf of, you or your Affiliates through your use of the Services.
"Customer Solution" means any application you run in connection with Services.
"End User" means any user of a Customer Solution, or any person permitted by you to access Customer Data hosted in Services or otherwise use the Services.
"Non-Kherian Product" means any software, data, service, website or other product licensed, sold or otherwise provided to you by an entity other than us, whether you obtained it via our Product or elsewhere.
"Offer Details" means the pricing and related terms applicable to an aGora.cloud Subscription offer, as published in the aGora Store.
"aGora Store" means the online portal from which you purchase a Subscription at www.agora-erp.com or at an alternate site we identify.
"Privacy Statement" means the Kherian "Legal note, privacy policy and cookies", published at www.agora-erp.com or at an alternate site that we identify.
"Product" means any Services or Software.
"Services" means one or more of the aGora.cloud services or features made available to you under this agreement by Kherian.
"Software" means Kherian software we provide to you as part of the Services for use with the Services.
"Subscription" means an enrolment for Services for a defined Term as specified on the "aGora Store". You may purchase multiple Subscriptions, which may be administered separately and which will be governed by the terms of a separate aGora.cloud Agreement.
"Term" means the duration of a Subscription (for example, 30 days or 12 months)
"we" and "us" means Kherian Soft S.L. and its affiliates, as appropriate.
"you" and "your" means the entity entering into this agreement to use the Product.
APPENDIX TO THE AGORA.CLOUD AGREEMENT
Data Processing Agreement
This Data Processing Agreement ("DPA") supplements the terms of the aGora.cloud Agreement
1. DEFINITIONS
In this DPA, "Customer" means the entity that entered into the aGora.cloud Agreement with Kherian. Capitalized terms used in this DPA, but not defined, will have the definition in the aGora.cloud Agreement and any documents that expressly amend or supplement those terms (collectively, the "Agreement"). Terms not defined in this DPA or the Agreement will have the meaning given in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ("Data Protection Directive")
2. ROLES OF THE PARTIES
For the Services, Kherian is a data processor (or sub-processor) acting on Customer's behalf. As data processor (or sub-processor), Kherian will only act upon Customer's instructions. The Agreement constitutes Customer's complete and final instructions to Kherian for the processing of Customer Data.
3. DURATION OF DATA PROCESSING
Kherian will process Customer Data during the term of its provision of the Services to Customer. Upon expiration or termination of Customer's use of the Services, Customer may extract Customer Data, and Kherian will delete Customer Data, each as set forth in the Agreement.
4. SCOPE AND PURPOSE OF DATA PROCESSING
The scope and purpose of processing of the Customer Data that Customer provides to Kherian through the use of the Services is described in the Agreement. Kherian will only process such Customer Data for the purpose of providing the Services and performing its obligations in accordance with the Agreement.
5. TECHNICAL AND ORGANIZATIONAL SECURITY MEASURES
Kherian will take technical and organizational measures to help protect Customer Data from unauthorized access, use, or disclosure.
6. CORRECTION, DELETION AND BLOCKING OF CUSTOMER DATA
For the duration of Kherian's provision of the Services to Customer, Kherian will, at its election and as necessary under applicable law implementing Article 12(b) of the Data Protection Directive, either: (1) provide Customer with the ability to correct, delete, or block Customer Data it provides to Kherian through the use of the Services, or (2) make such corrections, deletions, or blockages on Customer's behalf.
7. KHERIAN PERSONNEL
Kherian personnel will not process Customer Data without authorization. Such personnel shall be obligated when taking up their duties to maintain confidentiality. The obligation of confidentiality shall continue after their engagement ends.
8. TRANSFER OF CUSTOMER DATA, SUBCONTRACTORS
Subject to any restrictions set forth in the Privacy Statement, Customer appoints Kherian to transfer, store and process Customer Data that Kherian processes on Custome'’s behalf in Spain or any other country in which Kherian or its affiliates maintain facilities in order to provide the Services. Kherian may also hire other companies to provide limited services on its behalf, such as providing customer support. Any such subcontractors are prohibited from using personal data for any purpose other than to deliver the services Kherian has retained them to provide. Kherian is responsible for its subcontractors' compliance with the obligations of this DPA. Customer consents to Kherian's transfer of Customer Data to subcontractors in Spain or any other country in which they maintain facilities as described herein. Except as set forth above, as agreed by Kherian and Customer, or as required by law, Kherian will not transfer to any third party (not even for storage purposes) personal data that Customer provides to Kherian through the use of the Services.
9. TERM
This DPA is coterminous with the aGora.cloud Agreement to which this DPA is appended.
