This agreement governs your acquisition and use of our services. If you register for a free trial for our services, this agreement will also govern that free trial.
By accepting this agreement, either by clicking a box indicating your acceptance or by executing a service order that references this agreement, you agree to the terms of this agreement. If you are entering into this agreement on behalf of a company or other legal entity that will be receiving and using our services, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms "you" or "your" or “customer” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the services.
This Agreement was last updated on September 1, 2016. It is effective between You and Cloudirec as of the date of You accepting this Agreement (the “Effective Date”).
shall mean (a) any persons or entities that, now or in the future, directly or indirectly, control, are controlled by, or are under common control with the subject entity, or (b) any persons or entities that are acquired, managed, or operated by either party, whether by membership, stock ownership, joint operating agreement, or other substantial relationship. “Control” means, with respect to a corporation, the direct or indirect control of more than fifty percent (50%) of the voting power to elect directors thereof, or any other entity, the power to direct the management or management policies of such entity.
means this Subscription Agreement together with any Service Order, Statement of Work, and any Exhibits or Appendices that are entered into between You and Cloudirec.
means those individuals that You have provided access to Cloudirec’s Services.
means all data, reports, information or other materials uploaded or created by You or by Customer’s Users on or through the Services.
shall mean Customer Data that is deidentified
data, which means it does not include:
(1) personally identifiable information; or
(2) anonymized information capable of being reidentified.
means the products and services ordered by You under a free trial or a Service Order and made available to You by Cloudirec including online services, tools and software for assessments used to recruit and screen cloud professionals.
means an ordering document specifying the Services to be provided to You hereunder that is entered into between You and Cloudirec, and includes a description of what is being ordered, product and service specifications, quantity, price, service levels, payment terms and order duration. Once signed by both Customer and Cloudirec, each Service Order shall be incorporated by reference, and subject to the terms of this Agreement.
means those individual(s) that are authorized by You to use the Services and to whom You have provided access to the Services having registered accounts with user identification name and password.
means Cloudirec, also doing business as M/S Cloudirec, with a place of business at B40, prabhu marg, tilak nagar, Jaipur
means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
This Agreement sets forth the terms and conditions for Customer’s use of the Services on a trial basis free of charge as described below (a “Free Trial”), and/or purchase of the Services subject to an applicable Service Order. From time to time, Customer may add new Service Orders, which, upon execution by the applicable parties, will be subject to the terms and conditions of this Agreement.
Free Trial. If You register on Our website for a free trial, Cloudirec will make one or more
Services available to You on a trial basis free of charge until the earlier of (a) the end of the Free
Trial period for which you registered to use the applicable Service(s), or (b) the start date of any
Service Order entered into between You and Cloudirec for such Service(s). Additional Free Trial
terms and conditions may appear on the Free Trial registration web page. Any such additional terms
and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE
SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST
UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED
BY THE FREE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE
THE END OF THE FREE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR
CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A
DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL; THEREFORE, IF YOU PURCHASE
A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL,
YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE FREE TRIAL PERIOD OR YOUR
DATA MAY BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 8 (REPRESENTATIONS AND WARRANTIES), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “ASIS” WITHOUT ANY WARRANTY.
Access.Cloudirec shall provide Customer with access to the Services as identified in an applicable Service Order
Named Users.Customer may designate Recruiter Users and/or Engineer Users in the number
specified in an applicable Service Order to access and use the Services subject to the restrictions in
the Agreement. Recruiter Users each receive the right to send the number of job posts specified in
an applicable Service Order to Candidates to access the Services for the purposes of taking
assessments to evaluate the Candidates’ cloud skills.
Additional job posts may be purchased for an additional fee, and unused job posts expire upon expiration or termination of an applicable Service Order. Each job post includes a unique link to a assessment as well as embedded login credentials generated by the services, and is delivered via messages to the Candidate. When a Candidate responds to a job post and accesses a assessment: (i) Candidates with a Cloudirec Job seeker/candidate login will be asked if they would like to share their past Cloudirec assessment scores with Customer; and (ii) Candidates without a Cloudirec job seeker login will be asked to create one. Any Cloudirec job seeker community information, including a Job seeker’s/Candidate’s Cloudirec account information and past challenge performance scores, shall not be considered Customer Data or Customer Content as defined in this Agreement, and belong solely to the Candidate. Recruiter Users and Engineer. Each Candidate’s assessment performance is evaluated and compared against an anonymous scoring pool. A performance report and ranking is reported back through the Services to enable Customer to objectively assess the Candidates’ cloud skills. Customer may have only as many Recruiter Users and Engineer Users activated at any one time for Cloudirec for Work as specified in an applicable Service Order. No registered User account may be shared or accessed by more than one User, and Customer will not, and will not permit its Users to, share a User account with any other individual. A User account may be reassigned by Customer to a new individual replacing one who no longer requires ongoing use of Cloudirec for Work.
Hosted Maintenance and Support.Cloudirec shall provide Customer with maintenance and support services.
Cloudirec and its third party suppliers and partners hereby reserve all rights in and to the Services, support services, and any underlying or related software for the foregoing (collectively, the “Software”). Nothing in this Agreement will be deemed to grant any license therein. Customer is entitled to access the Services solely in accordance with the terms of this Agreement. Customer shall not decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Software. Customer shall not frame or utilize framing techniques to enclose any marks of Cloudirec or its third party suppliers or partners, or other proprietary information (including images, text, page, layout or form), without Cloudirec’s prior written consent.
No Resale. The Services are to be accessed by Customer and its designated Users only, and only for Customer’s internal business purposes, not for resale or unauthorized distribution to any third party.
No Resale. The Services are to be accessed by Customer and its designated Users only, and only for Customer’s internal business purposes, not for resale or unauthorized distribution to any third party.
Maintenance and Support Obligations. Maintenance and Support Obligations, Cloudirec’s obligations to provide support services are subject to the following: (a) Customer shall reasonably assist Cloudirec to duplicate and resolve errors; (b) Customer shall document and promptly report all encountered errors or malfunctions related to the Services to Cloudirec; and (c) Customer shall use reasonable efforts to carry out procedures to resolve errors or malfunctions within a reasonable time after such procedures have been communicated to Customer by Cloudirec or by a third party acting on Cloudirec’s behalf.
NonPersonally Identifiable Data License and Restrictions. Subject to the terms and conditions of this Agreement, Customer agrees to and hereby grants to Cloudirec a nonexclusive,worldwide, royaltyfree,fully paidup,sublicenseable license to use, reproduce, copy, modify, make derivative works of, distribute, and otherwise exploit NonPersonally Identifiable Data solely for the purposes of (i) providing the Services to Customer; and (ii) developing, enhancing and supporting the Services.
Data Ownership. Customer will retain all rights to Customer Data or other materials uploaded or created by Customer on or through the Services (“Customer Content”). By submitting, posting or displaying Customer Data and/or Customer Content on or through the Services which are intended to be made available to Users or Candidates, Customer grants Cloudirec a worldwide, nonexclusive, royaltyfree license to reproduce, adapt, modify, publish and distribute such Customer Data and/or Customer Content solely in conjunction with the Services for the purpose of performing Cloudirec’s obligations under this Agreement. Customer represents and warrants that it has all rights, power and authority necessary to grant the rights granted herein to any such Customer Data and/or Customer Content.
Confidential Information. “Confidential Information” means any technical or nontechnical information related to the past, current or proposed operations, products, technology, services or business that one party (the “Disclosing Party”) discloses or otherwise makes available in any manner to the other party (the “Receiving Party”), or to which the Receiving Party may gain access in the performance of its obligations or the exercise of its rights hereunder, whether such information is disclosed orally, visually or in writing, and whether or not bearing any legend or marking indicating that such information or data is confidential, including without limitation software, knowhow, processes, trade secrets, manuals, reports, procedures, and methods. Confidential Information also includes proprietary or confidential information of any third party that may be in the Disclosing Party’s possession, as well as the terms of this Agreement. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement. Unless expressly permitted by this Agreement, the Receiving Party will not disclose the Confidential Information of the Disclosing Party to any third party, except to those employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who have signed confidentiality agreements (or are otherwise under a duty of confidentiality) no less protective of Confidential Information than the terms of this Agreement. The Receiving Party shall take reasonable measures to protect the secrecy of and avoid disclosure and/or unauthorized use of the Disclosing Party’s Confidential Information. Without limiting the foregoing, the Receiving Party will protect the Disclosing Party’s Confidential Information from disclosure and/or unauthorized use in the same manner as the Receiving Party protects its own confidential or proprietary information of similar type and importance.
Exceptions.Confidential Information shall not include any information the Receiving Party can document: (a) was already lawfully known by the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, or (ii) required by law or by the order or a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
Return of Confidential Information. The Receiving Party will, at Disclosing Party’s option, either return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first. In addition, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 6.3.
Documentation. Cloudirec represents and warrants that any and all documentation for the Services provided by Cloudirec (the “Documentation”) will be accurate and complete and will be revised by Cloudirec on a timely basis at no cost to Customer to reflect material changes and updates to the Services.
Services. Cloudirec represents and warrants that the Services shall (i) function properly and in conformity with the warranties herein and the Documentation (as applicable) provided as Services hereunder, and (ii) operate on the computer hardware and software environment as identified in its Documentation relating to the Services.
Other. Cloudirec represents and warrants that: (i) it has obtained all necessary rights to comply with its obligations under this Agreement and to allow the Customer to exercise its rights under this Agreement; (ii) there are no pending, or to its knowledge, threatened claims, demands or litigation on the Services or Software; and (iii) Cloudirec will in the provisions of the Services and Software comply with all applicable laws.
Disclaimer. EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS,” AND CUSTOMER’S USE OF THE SERVICES AND THE SOFTWARE IS AT ITS OWN RISK. CLOUDIREC (INCLUDING CLOUDIREC’S THIRD PARTY SUPPLIERS AND PARTNERS AND EACH OF THEIR AFFILIATES, SUPPLIERS AND RESELLERS) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, PERFORMANCE, USAGE, OR TRADE PRACTICE. CLOUDIREC DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, ERRORFREE, OR COMPLETELY SECURE.
By Customer Customer represents and warrants that Customer’s services, products, materials, Customer Data, Customer Content, and information used by Customer in connection with this Agreement as well as Customer’s access to and use of the Services do not and will not during the term of this Agreement operate in any manner that would violate any applicable law or regulation or infringe any copyright, trade secret, privacy, publicity, or other rights of any third party.
Term. Unless earlier terminated in accordance with the termination rights set forth in this Section 9, the term of each Service Order shall be as set forth in each Service Order. Unless terminated earlier in accordance with the termination rights set forth in this Section 9, this Agreement shall commence upon the Effective Date and remain in full force and effect until all Service Orders hereto have expired or terminated.
Termination for Cause. Either party may terminate this Agreement or the applicable Service Order upon thirty (30) days’ prior written notice if the other party is in material breach of this Agreement or any Service Order and the breaching party fails to remedy the breach within the 30day notice period. Any written notice under this Section 9.2 must specify in reasonable detail the nature of the alleged material breach.
Termination for Bankruptcy. In the event of the bankruptcy, insolvency, liquidation, winding up, reorganization, protection or relief of either party under any law of any jurisdiction, or upon issuance of any order for relief or the appointment of a receiver, trustee, or other similar official for such party, the other party may thereupon terminate this Agreement upon written notice to the first party, without prejudice to any right or remedy that such other party may have.
Effect of Termination. Upon the expiration or termination of a Service Order: (a) Customer will cease using the Services under such Service Order and Cloudirec will be relieved from any further obligation to provide the Services under such Service Order; and (b) within thirty (30) days of termination or expiration, Cloudirec, at Customer’s expense, will return or destroy any and all Customer Data to Customer. Notwithstanding anything to the contrary herein, if Customer terminates this Agreement and/or a Service Order in accordance with Section 9.2, then Customer shall be relieved of all payment obligations, namely future monthly payments for the delivery of Services under such Service Order except for those Services delivered prior to the date of termination. The following Sections will survive any termination or expiration of this Agreement: 3 (Reservation of Rights), 5 (Fees/Payment for Services/Taxes), 6 (Data Rights), 7 (Confidentiality), 8 (Representations and Warranties), 9 (Term and Termination), 10 (Indemnification), 11 (Limitation of Liability), and 13 (Miscellaneous).
By Cloudirec. Subject to Section 11.2, Cloudirec shall indemnify, defend (or settle), and hold harmless Customer from and against all claims, suits, liabilities, losses, costs, damages, and expenses, including without limitation reasonable attorneys’ fees or expenses (“Losses”), arising out of or related to any third party claim that alleges that the Services or the Software infringe any copyright, trade secret, patent or trademark, or any other intellectual property right (“Intellectual Property”) of any third party brought against Customer. Customer shall provide Cloudirec with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim. The foregoing provisions of this Section 10.1 state the entire liability of Cloudirec, and the sole remedy of Customer, with respect to any actual or alleged claim of infringement or misappropriation of Intellectual Property.
By Customer. Customer shall indemnify, defend (or settle), and hold harmless Cloudirec from and against all Losses arising out of or related to any third party claim that alleges that: (a) any Customer Data and/or any Customer Content infringe the Intellectual Property of any third party; or (b) Customer’s use of any Services or Software infringe the Intellectual Property of any third party to the extent such infringement or alleged infringement is based on any misuse, unauthorized modification, or other unauthorized change to the Services or the Software made by Customer. Cloudirec shall provide Customer with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim.
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF THE OTHER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
Dispute Resolution. Prior to the initiation of binding arbitration as detailed below, the parties shall first attempt to resolve their dispute informally. Every effort should be made to resolve all disputes. The parties, using negotiators with authority to enter into a settlement, will use their best efforts to arrange personal meetings and/or telephone conferences as needed.
Assignment. Neither party may assign its rights or delegate its duties under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other party, except that a party shall have the right to assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets upon notice to the other party. Any attempted assignment or delegation in violation of this Section 13.1 will be void. This Agreement shall be binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.
Relationship. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture between the parties. No party hereto (nor any agent or employee of such party) will make any representations or warranties or incur any liability on behalf of the other.
Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, each party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If necessary to effect the intent of the parties, the parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
Electronic Signature. Original signatures transmitted and received via electronic transmission of a scanned document (via secure email or a service such as provided by DocuSign) are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that or an original signature.
Waiver. No delay or omission by a party hereto to exercise any right occurring upon any noncompliance or default by another party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by one of the parties hereto of any of the covenants, conditions, or agreements to be performed by one of the other parties will not be construed to be a waiver of any subsequent breach thereof or of any covenant, condition, or agreement contained herein.
Notices. All legal notices and other communications required hereunder, excepting those identified as “with email being accepted” shall be in writing and delivered in person, via certified mail, return receipt requested, or by overnight express mail. Notices to Cloudirec should be addressed as follows:
B40. PRABHU MARG,TILAK NAGAR Jaipur 302004 Rajasthan Email: legal@Cloudirec.com
Construction. The division of this Agreement into sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. Unless otherwise expressly stated “day,” “week,” “month,” “quarter,” and “year” mean calendar day, week, month, quarter, and year, respectively, and “business day” means weekdays (Monday – Friday).
Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Rajasthan without reference to the conflict of laws provisions thereof. Any disputes relating to the interpretation, execution or enforcement of this Agreement or arising from the dealings between Cloudirec, Customer and any third parties under this Agreement that are not subject to exclusive and binding Arbitration shall be dealt with under the exclusive jurisdiction and venue of the courts of the State of Rajasthan and the parties irrevocably submit for all purposes to the jurisdiction of each such court.
Force Majeure. Except for payment obligations, neither party shall be liable to the other party or deemed to be in default for any delay or failure in performance of any obligation under the Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of the public enemy, acts of terrorism, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements or any other cause beyond the reasonable control of such party.
Entire Agreement; Counterparts. The Exhibits attached hereto are incorporated herein by this reference, are an integral part of the Agreement, and will be read and interpreted together with the Agreement as a single document. This Agreement (including all Exhibits, Service Orders and addendums attached hereto) sets forth the complete, exclusive and final statement of the agreement between the parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the parties regarding such subject matter. This Agreement may only be modified, amended, or any rights under it waived, by a written document executed by the parties.