These CLOUD Terms of Service (these “CLOUDTerms”), together with the APIANT Terms of Service, available athttps://apiant.com/tos (the “APIANT Terms”), and any other applicable Service-SpecificTerms (collectively, the “Agreement”), set forth the terms andconditions under which APIANT, Inc. (“APIANT”) agrees to provide thehosted “software as a service” (the “ CLOUD Service”) for the Platformand related services to Customer as set forth in the subscription plan furtherdescribed at https://apiant.com/ipaas-cloud and the sites linked to therein asof the CLOUD Effective Date (as may be upgraded, downgraded or otherwisemodified, the “ CLOUD Subscription Plan”) selected by Customer inconnection with these CLOUD Terms.
These CLOUD Terms are“Service-Specific Terms” under the APIANT Terms. All capitalized terms used butnot otherwise defined in these CLOUD Terms shall have the meanings ascribed tosuch terms in the APIANT Terms.
The Agreement is a legally bindingagreement between Customer and APIANT; please read it carefully and save a copyof it for your records. By clicking the “SUBSCRIBE” button, Customeragrees effective as of such date (the “CLOUD Effective Date”), tobe bound by these CLOUD Terms in connection with the Agreement.
CUSTOMER’S ACCESS TO, AND USE OF, THEPLATFORM AND APIANT’S OBLIGATIONS WITH RESPECTTHERETO ARE EXPRESSLY CONDITIONEDON CUSTOMER’S ACCEPTANCE OF THE AGREEMENT.
1.These CLOUD Terms are Part of the Agreement and Governed by the APIANT Terms
The terms of the APIANT Terms agreedto in connection with the creation of Customer’s Account, including but notlimited to all representations, warranties, covenants, agreements andindemnities relating to the CLOUD Service, are incorporated herein by thisreference, and Customer acknowledges and agrees that the representations,warranties, covenants, agreements and indemnities contained in the APIANT Termsshall remain in full force and effect to the full extent providedtherein.
In the event of a conflict between theterms and conditions of these CLOUD Terms and the terms and conditions of theAPIANT Terms, the terms and conditions of these CLOUD Terms shall control withrespect to the CLOUD Service.
THE APIANT TERMS, AVAILABLE ATHTTPS://APIANT.COM/TOS, CONTAIN IMPORTANT INFORMATION REGARDING LIMITATIONS OFAPIANT’S LIABILITY, CUSTOMER’S INDEMNIFICATION OBLIGATIONS, AND THE LAWGOVERNING, AND DISPUTE RESOLUTION PROCEDURES UNDER, THE AGREEMENT.
2.APIANT’s Provision of the CLOUD Service is Governed by the CLOUD SubscriptionPlan
Subject to the terms and conditions ofthe Agreement, during the CLOUD Service Term (as defined in Section 3 below),APIANT agrees to use commercially reasonable efforts to provide Customer the(i) CLOUD Service, and (ii) support services, in each case, in accordance withthe CLOUD Subscription Plan.
3.The CLOUD Subscription Plan Sets Forth the CLOUD Service Term
Unless earlier terminated, these CLOUDTerms will remain in effect from the CLOUD Effective Date for a term (“InitialTerm”) of either (i) one(1) calendar month, if the CLOUD Subscription Planis a monthly plan, or (ii)one (1) calendar year if the CLOUD Subscription Planis a yearly plan. These CLOUD Terms and the CLOUD Subscription Plan shallautomatically renew for additional periods equal to the Initial Term (each, a “RenewalTerm” and together with the Initial Term, the “CLOUD Service Term”),unless written notice of non-renewal is received by the other party prior to theexpiration of the then current term.
4.Customer’s Use of the CLOUD Service is Subject to Certain Restrictions
Without limiting any other restrictionon Customer’s use or access to the Platform in the APIANT Terms or otherwise inthe Agreement, Customer’s use of the Platform in connection with the CLOUDServices must consist solely of internal uses.
5.With the CLOUD Subscription Plan
Customer will pay APIANT the Feesdescribed in the CLOUD Subscription Plan, as such Fees may be adjusted in accordancewith the APIANT Terms.
6.The Platform Can Cause Irrevocable Damage to Customer’s Systems
The Platform’s performance of Tasksmay irrevocably modify and/or delete User Data. CUSTOMER ACKNOWLEDGES ANDAGREES APIANT IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER DATABY THE PLATFORM AND CUSTOMER’S USE OF THE PLATFORM IS AT CUSTOMER’S OWN RISK.
7.APIANT DISCLAIMS ALL WARRANTIES NOT EXPRESSLY STATED HEREIN
WITHOUTIN ANYWAY LIMITING THE GENERALITY OF SECTION [17] OF THE APIANT TERMS, EXCEPTAS EXPRESSLY PROVIDED HEREIN, (I) APIANT DOES NOT WARRANT THAT ACCESS TO THECLOUD SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, AND (II) THE CLOUD SERVICEIS PROVIDED “AS IS,” AND APIANT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY ANDFITNESS FOR A PARTICULAR PURPOSE, IN EACH CASE, TO THE MAXIMUM EXTENT PERMITTEDBY APPLICABLE LAW.
8.APIANT IS NOT LIABLE FOR CERTAIN DAMAGES AND LIABILITIES
WITHOUT IN ANYWAY LIMITING THEGENERALITY OF SECTION [19] OF THE APIANT TERMS, AND NOT WITHSTANDING ANYTHINGTO THE CONTRARY CONTAINED HEREIN, IN NOEVENT WILL (I) APIANT’S LIABILITYARISING OUT OF OR RELATED TO THE CLOUD SERVICES, WHETHER IN CONTRACT, TORT ORUNDER ANY OTHER THEORY OF LIABILITYEXCEED, IN THE AGGREGATE, THE TOTAL FEESPAID OR OWED BY CUSTOMER UNDER THESE CLOUD TERMS DURING THE CALENDAR MONTHIMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCHAMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II)APIANT HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FORANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVEDAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OFLIABILITY, AND WHETHER OR NOT APIANT HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS WILL NOT APPLY TO THEEXTENT PROHIBITED BY APPLICABLE LAW.