Cloud Intelligence ("CLOUD INTELLIGENCE") provides a service ("SERVICE") that allows users to test their websites using state-of-the-art technologies and cloud-computing resources. The following are the Terms of Agreement ("TOA") for use of the Service. By using CLOUD INTELLIGENCE Service directly and/or through CLOUD INTELLIGENCE partners and/or buying credits, the customer of CLOUD INTELLIGENCE, and/or the partner of CLOUD INTELLIGENCE and/or the partner’s employee ("USER”) acknowledges that he/she had read, understood and agrees to abide by this TOA. Each customer of CLOUD INTELLIGENCE and/or CLOUD INTELLIGENCE partner will ensure that its own employees, customers (only in case of a partner) and end-users (each shall be referred to as a “USER”) must also agree to abide by this TOA and be liable for violations of this TOA by such customers and end-users.
Please review the following terms carefully. If at any time you do not agree to these terms, please immediately terminate your use of the site.
1. THE SERVICE
a. The Service is provided to you through a limited license for the Service which is subject to your payment of the fees for the Service and other terms and conditions of this agreement, as it may be amended by CLOUD INTELLIGENCE, and any guidelines, rules or operating policies that CLOUD INTELLIGENCE may establish from time to time. By posting updated versions of the TOA on the CLOUD INTELLIGENCE website, or otherwise providing notice to you, CLOUD INTELLIGENCE may modify the TOA and may discontinue or revise any or all other aspects of the Service at its sole discretion. All such changes shall become effective and apply to you upon posting of the revised TOA. You are strongly recommended to occasionally review the TOA to check if any of its provisions have been revised and to decide if any such revision is acceptable by you. If one or more of the revisions to the TOA is not acceptable by you, please immediately stop using the Service and send CLOUD INTELLIGENCE an email notification.
b. The prohibited uses detailed below are intended as guidelines regarding improper and inappropriate conduct, and should not be interpreted as an exhaustive list. Generally, conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this TOA is prohibited. CLOUD INTELLIGENCE reserves the right at all times to prohibit activities that damage its commercial interests, reputation and goodwill.
c. The Service is available only to persons who can form legally binding contracts under applicable law. If you are registering for an account on behalf of a company, entity, or organization (collectively "Subscribing Organization"), then you represent and warrant that you: are an authorized representative of that Subscribing Organization with the authority to bind such organization to these terms; and agree to be bound by these terms on behalf of such Subscribing Organization.
d. CLOUD INTELLIGENCE assumes no liability for, and makes no guarantee regarding, the security and integrity of any data or information you store or transmit using the Service or the Internet, including any data or information stored or transmitted by any computer designated as “secure”. You are responsible for immediately reporting to CLOUD INTELLIGENCE any issue that could compromise the security or integrity of any User or system taking part in the Service.
e. All prices for the Service are subject to change at any time. All monies paid to CLOUD INTELLIGENCE for Services are non-refundable.
f. For all accounts, CLOUD INTELLIGENCE may charge an account re-activation fee should an account needs to be re-activated by a user after an account has become de-activated due to non-payment or an untimely authorization for payment.
g. You will provide true, accurate, current, and complete information about yourself as requested by CLOUD INTELLIGENCE during the registration process. You are responsible for maintaining the security of your account, passwords, internet connection and files and for all uses of your account and of the Service in your name. CLOUD INTELLIGENCE reserves the right to refuse registration of, or cancel accounts it deems inappropriate. For avoidance of any doubt any consent of CLOUD INTELLIGENCE to register an account shall not be deemed under any circumstances as a confirmation or other evidence to the propriety such account or the use thereof.
2. RESTRICTIONS AND RESPONSIBILITIES
a. This is an agreement for services, and you are not granted a license to any software by this TOA. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Service or any software, documentation, or data related to the Service ("Software"); remove any proprietary notices or labels from the Service or any Software, modify, translate, or create derivative works based on the Service or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or any Software. If you are using the Service in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Service or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. Any use by you of any of the CLOUD INTELLIGENCE materials and site other than for private, non-commercial use is strictly prohibited. You irrevocably agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit, any portion of the site, use of the site, access to the site, for any purpose other than for your personal, private, non-commercial purposes.
b. You irrevocably acknowledge and agree that the Service, Software and CLOUD INTELLIGENCE names and logos and all related products, copyrights, patents, patent applications, trademarks, other trade indicia, and service names, design marks and slogans, are the property of CLOUD INTELLIGENCE (collectively, the Assets'). You are not authorized to use any of the Assets in any advertising, publicity or any other commercial manner without the prior written consent of CLOUD INTELLIGENCE. Your use of the Service is under a right to use the Service as provided herein, and confers no title or ownership in the Service, the Software or the Assets and is not a sale of any rights in the Service, the Software or the marks. All ownership rights remain in CLOUD INTELLIGENCE.
c. You will be responsible for ensuring that you are competent to write the scripts required to operate the Service.
d. You represent, covenant, and warrant that you will use the Service only in compliance with the TOA and all applicable laws. You hereby agree to indemnify and hold CLOUD INTELLIGENCE harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use or misuse of the Service.
e. The Service may only be used for lawful purposes.
f. You are prohibited from violating system or network security, this may result in criminal and civil liability. Including, but are not limited to the following: using the Service to penetrate, or attempt to penetrate, security measures of CLOUD INTELLIGENCE's or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data; unauthorized use, access, investigate of a system security or authentication measures, traffic or data; using the Service to distribute any “virus” or other software or instructions intended to destroy or corrupt or otherwise interfere with others’ access to and/or use of the Services, the Internet, their computer systems and/or data; interference with Service to any User, host or network including, without limitation, mail bombing, flooding, overloading a system and broadcast attacks, forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting; using the Service to gather, or attempt to gather personal information about third parties without their consent. You will not use the Service to post unlawful or defamatory information about a person without their consent, including any information that is harassing or would intentionally inflict emotional distress.
g. In using the varied features of the Service, you may provide information (such as name, contact information, or other registration information) to CLOUD INTELLIGENCE. CLOUD INTELLIGENCE may use this information and any technical information about your use of the Service to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you.
h. You will not use the Service to send spam messages, including, without limitation, commercial advertising or mass e-mailings. You shall not use another site's mail server to send e-mail without the express permission of the site.
i. CLOUD INTELLIGENCE reserves the right to notify the appropriate law enforcement department in case of a violation that is a criminal offense. All CLOUD INTELLIGENCE contacts with any third party, including, without limitation, law enforcement, shall be in accordance with applicable law and regulation, including, but not limited to, law and regulation governing the privacy of User information as applicable to CLOUD INTELLIGENCE's provision of its Service to its Customers.
j. You will adopt and maintain the Privacy Policy, which may be modified by CLOUD INTELLIGENCE from time to time.
3. THIRD PARTY OPEN SOURCE SOFTWARE
a. Some of the Software Programs included in the Service are distributed under the terms of agreements with third parties ("Third Party Agreements") which may expand or limit your rights to use certain Software Programs as set forth in this section
b. The Third Party Agreements, related online documentation, source code and other information about such Software Programs are available at the relevant websites:
Apache JMeter [Apache License, http://jakarta.apache.org/jmeter/]
NoMachine NX Free edition for Linux [NoMachine License, http://www.nomachine.com/]
Amazon EC2 [Amazon License, http://aws.amazon.com/]
c. You acknowledge that you have read, understood and agreed to the terms and conditions of each such Third Party Agreement. To the extent any Third Party Agreements require that Licensor provide rights to use, copy or modify a Software Program that are broader than the rights granted in Section 3, then such rights shall take precedence over the rights and restrictions granted in this agreement solely for such Software Programs.
d. As CLOUD INTELLIGENCE facilitates these third parties software, CLOUD INTELLIGENCE will not be held responsible and will not be obligated to compensate the user and no refunds will be issued for their malfunction or defects. For example, but are not limited to the following:
i. A load test that failed to yield valid results due to a defect/bug/limitation in the JMeter open source software.
ii. Any connection failure caused by NoMachine remote connection software.
iii. CLOUD INTELLIGENCE facilitates Amazon EC2 reliable resources, yet CLOUD INTELLIGENCE cannot be held responsible for Amazon’s resources connection failure and/or interruption and/or Amazon’s resources restrictions and/or limitations.
4. TERMINATION
a. You may terminate this agreement at any time by sending an e-mail message to support@cloud-intelligence.com. Correspondence must include your first name, last name and Service username. No refunds will be issued if you terminate this agreement.
b. CLOUD INTELLIGENCE may terminate this agreement or the Service at any time with or without cause, and with or without notice. CLOUD INTELLIGENCE shall have no liability to you or any third party because of such termination.
c. Upon termination of this Agreement for any reason, all rights granted to you under this Agreement shall immediately cease, and you shall destroy all copies of Software and documentation related thereto in your possession.
d. CLOUD INTELLIGENCE may delete any of your archived data within 30 days after the date of termination. All sections of this agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers, limitations of liability and miscellaneous.
5. WARRANTY DISCLAIMER AND REMEDIES
a. Warranty for Service and Software. CLOUD INTELLIGENCE warrants to you that for a period of 30 days from the date of the first purchase of the Service (a) the Software, when properly installed and used, is capable of operating in substantial conformance with the documentation of the Software, and (b) the physical medium on which the Software is furnished by CLOUD INTELLIGENCE under this Agreement shall be free of defects in materials and workmanship under normal use. If you report a defect in the medium during such warranty period, CLOUD INTELLIGENCE will replace it at no charge.
b. Use of the Service and any reliance by you upon the Service, including any action taken by you because of such use or reliance, is at your sole risk. CLOUD INTELLIGENCE does not warrant that the Service will be uninterrupted or free of errors, viruses, or other harmful components; nor does it make any warranty as to the results that may be obtained from use of the Service. The Service is provided 'as is' and "as available", "with all faults" and CLOUD INTELLIGENCE disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and noninfringement.
c. Your sole and exclusive remedy for any failure or nonperformance of the Service shall be for CLOUD INTELLIGENCE to use commercially reasonable efforts to adjust or repair the Service.
6. LIMITATION OF LIABILITY
a. Without derogating from Section 5 above, CLOUD INTELLIGENCE accepts no liability in relation to this agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for loss of profits, loss of sales, loss of or damage to business, loss of contracts, loss of customers, loss of, or loss of use of, any software or data, loss of use of any computer or other equipment or plant, or indirect, special or consequential loss or damage.
b. Without derogating from Section 5 above, CLOUD INTELLIGENCE shall not be liable to you for any delay or failure in performing any of its obligations under this agreement if such delay or failure is caused by circumstances outside the reasonable control of CLOUD INTELLIGENCE (including any delay caused by any act or default on your part), including without limitation any failure of power supplies, labor disturbance, acts of government or regulatory authority, or any act or omission of third party network service providers.
c. Limitation of Warranty. The limited warranties set forth above shall not apply if the Service or Software (a) is not used in accordance with the documentation thereof (b) has been modified without CLOUD INTELLIGENCE 's express authorization; (c) fails to function due to a malfunction of your equipment; or (d) fails to function because of third party products incorporated or integrated with or used in connection with the Service or Software and not provided by CLOUD INTELLIGENCE or approved by CLOUD INTELLIGENCE, or for any other cause within your control.
d. CLOUD INTELLIGENCE shall have no liability for (a) any claim of patent, trade secret or copyright infringement based on the use of other than the then-latest release of the Service or Software, if such infringement could have been avoided by use of the latest release, or (b) any claim of patent infringement based on the (i) use of the Service or Software in combination with other materials not provided by CLOUD INTELLIGENCE where infringement would not have resulted but for such combination, or (ii) modification of the Service or Software by anyone other than CLOUD INTELLIGENCE where infringement would not have resulted but for such modification.
7. MISCELLANEOUS
a. If any provision of the agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this agreement will otherwise remain in full force and effect and enforceable.
b. CLOUD INTELLIGENCE and you agree that the agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this TOA or existing at law or equity shall be considered a waiver of such right or remedy.
c. No agency, partnership, joint venture, or employment is created as a result of the agreement, and you do not have any authority of any kind to bind CLOUD INTELLIGENCE in any respect whatsoever.
d. In any action or proceeding to enforce rights under the agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
e. Governing Law. Disputes arising out of or relating to this Agreement shall be governed by and interpreted in accordance with the laws of the State of Israel. The United Nations “Convention Relating to a Uniform Law on the International Sale of Goods,” or any similar or successor convention or law, shall not be applied to this Agreement or transactions under this Agreement. All claims filed by either Party to this Agreement, shall be filed exclusively in the competent court in Tel Aviv District, Israel.
8. SYSTEM REQUIREMENTS
a. It is understood that in order to use Service, an internet connected computer using a wide bandwidth network interface.
b. An up-to-date browser is required.
c. It is preferred that all ports to and from the Internet to the test computer would be open or at least ports 22, 80 and 443.
d. Test computer should support Java and Java Script.
9. PRICING AND BILLING
a. Pricing is per instance-hour from the time an instance is launched until it is terminated.
b. Each partial instance-hour consumed will be billed as a full hour.
Version 3.1 – 25th January 2010
