THESE IMPOSSIBLE CLOUD GmbH TERMS OF SERVICE (THE “AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER,” OR “SUBSCRIBER,” OR “YOU” OR “YOUR”) AND IMPOSSIBLE CLOUD GmbH, INCLUDING ITS PARENT, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSEES, AND EMPLOYEES (“COMPANY,” AS DEFINED BELOW, “US,” “WE” OR “OUR”) GOVERNING THE TERMS OF YOUR USE OF THE STORAGE SERVICES AS DEFINED HEREIN. THIS AGREEMENT HEREBY INCORPORATES BY REFERENCE THE FOLLOWING AGREEMENTS: PRIVACY POLICY, TERMS OF USE, CODE OF CONDUCT, AND NODE OPERATOR TERMS AND CONDITIONS. BY ACCEPTING THE TERMS OF THIS AGREEMENT, EITHER BY CLICKING TO SIGNIFY ACCEPTANCE, BY SETTING UP A CUSTOMER ACCOUNT, OR BY USING THE STORAGE SERVICES, YOU AGREE TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON THE CUSTOMER’S BEHALF.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A BINDING ARBITRATION AND WAIVER OF CLASS ACTION RIGHTS PROVISION THAT REQUIRES THE USE OF INDIVIDUAL ARBITRATION TO RESOLVE DISPUTES AS SET FORTH BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE THE STORAGE SERVICES.
IMPORTANT: THERE IS NO GUARANTEE THAT ANY MATERIALS STORED VIA THE STORAGE SERVICES WILL BE AVAILABLE ON DEMAND OR RETRIEVABLE AT ANY TIME. YOU ARE RESPONSIBLE FOR MAINTAINING BACKUP COPIES OF ALL STORAGE MATERIALS AT ALL TIMES. IMPOSSIBLE CLOUD IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO STORAGE MATERIALS.
1. Definitions. For purposes of this Policy, the following terms have the meanings set forth below.
a. “Bandwidth” means upload and download network service for transfer of Storage Materials as defined below between the storage node and the online storage sharing services provided by the Company to Customers via the Storage Network, as defined herein.
b. “Business Day” means a working day, Monday through Friday, excluding weekends and relevant bank holidays.
c. “Custom Development” means custom software or products designed to interact with the Storage Services or Storage Nodes developed
i. by Customer, with or without Company’s assistance, using application programming interfaces (APIs) or other development tools related to the Products, or
ii. by Company for the benefit of Customers.
d. “Customer Agreement” means a separately executed IMPOSSIBLE CLOUD GmbH partnership agreement between Company and Customer.
e. “Customer Application” means any web, mobile, or other application developed by Customer using the Storage Services or Storage Nodes, including any source code written by Customer.
f. “Customer Cause” means any of the following causes of an Error:
i. Any negligent or improper use (including improper installation, configuration or implementation), misapplication, misuse or abuse of, or damage to, the Services, Storage Services, Uplink, or Storage Nodes by Customer or any of its Representatives;
ii. Any maintenance, update, improvement or other modification to or alteration of Storage Services, Storage Nodes or the Open Source Software by Customer or its Representatives that were not specifically authorized in writing by Company;
iii. Any use of the Storage Services or Storage Nodes by Customer or its Representatives in a manner inconsistent with the then-current Documentation;
iv. Any use by Customer or their Representatives of any Third-party Products that Company has not provided to Customer;
v. Any use by Customer or their Representatives of a version of the Storage Services or Storage Nodes that is earlier than the Supported Software Versions as defined herein;
vi. Any Error caused by Customer Systems; or
vii. Any Error related to Out-of-Scope Services not covered by this Policy.
g. “Customer Systems” means Customer’s information technology infrastructure, including Customers' computers, software, databases, electronic systems (including database management systems) and networks.
h. “Device” means an independently operated computer or other electronic data storage device meeting all of the technical and other requirements set forth in this Agreement.
i. “Documentation” means information that describes the Storage Services, provides instructions or recommendations related to the configuration and/or use of the Storage Services, or otherwise informs Customers of the intended use of the Storage Services, including, but not limited to content provided directly to Customer or published at https://docs.impossiblecloud.com, or otherwise made available in conjunction with the Storage Services.
j. “Edge Services” means the service provided by Company to Customers via the Storage Network for the transfer of Storage Materials, as defined below, between a Customer Application, a distributed network of Storage Nodes, and one or more locations operated by Company or third parties that independently operate Open Source Software to facilitate storage and retrieval of the Storage Materials that provide S3 compatibility and publicly-available data sharing services, including the use of server-side encryption. The three subcomponents comprising the edge services are:
“S3 Compatible Gateway” means a globally distributed, multi-region cloud-hosted S3-compatible gateway service operated by the Company.
ii. “Linkshare Service” means a globally distributed, multi-region cloud-hosted gateway for standard HTTP requests, for sharing objects with users via a web browser operated by Company.
iii. “Auth Service” means a globally distributed, multi-region, cloud-hosted service operated by Company to store access credentials for use in conjunction with the S3 Compatible Gateway or Linkshare Service.
k. “End Users” or “Customer’s End Users” means the End Users of Custom Development, Customer Systems, Third-party Products, or Customer Applications. Customer is solely responsible for all matters relating to Customer’s End Users, including without limitation, registration, billing, collections, and support. Customer acknowledges and agrees that
i. Customer’s payment and other obligations hereunder are separate from and wholly independent of Customer’s relationship with Customer’s End Users, and
ii. Company has no responsibility or liability in connection with Customer’s End Users.
l. “Error” means with respect to any Storage Services or Storage Nodes, any reproducible failure of the Storage Services or Storage Nodes to operate in all material respects in accordance with the then-current Documentation, including any problem, failure or error referred to in the Severity Level Table.
m. “Force Majeure Event” means any unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Company employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Company’s possession or reasonable control, and denial of service attacks.
n. “Major Release” means a new release of the Software as indicated by a change to the number to the left of the decimal point in the version number, for example, Version 2.1 upgraded to Version 3.0.
o. “NodeID” means a unique code generated when a Storage Node is verified as required during the setup and configuration of the Storage Node Software (as defined below) in order for a Device to communicate with the Storage Services.
p. “Node Operator” means an individual or entity operating one or more Storage Nodes pursuant to the terms of this Agreement.
q. “Node Operator Services” means Storage Node Operator’s sharing of Space and Bandwidth on a Storage Node as part of the Storage Network in accordance with the terms of this Agreement.
r. “Open Source Software” means any open source software made available or used by Company pursuant to the terms of the open source license associated therewith.
s. “Out-of-scope Services” means any of the following:
i. Unless otherwise agreed to in writing between you and Company specifically stating that such services are covered under this Policy, any services requested by Customer for Custom Development, Customer Systems, or Third-party Products;
ii. Any services requested by Customer in connection with any apparent Error that Company determines in its reasonable discretion to have been caused by a Customer Cause;
iii. Any other services that Customer and Company may from time to time agree in writing are not included in the Support Services; and
iv. Any loss of an encryption key or encryption key seed.
t. “Representative” means any employee or contractor of Customer, or any employee or contractor of a partner or affiliate of Customer.
u. “Resolve” and the correlative terms, “Resolved,” “Resolving,” and “Resolution” each have the meaning set forth in Section 8.
v. “Response Time” has the meaning set forth in the Severity Level Table.
w. “Satellite” means an application operated by Company or a third party that allows CustomerApplications to register accounts, access application credentials, add payment methods, process billing and payment, facilitate storage and retrieval of Storage Materials on Storage Nodes, manage file repair, manage Storage Node reputation and process payments. Company is only responsible for providing support for Satellites hosted and operated by Company.
x. “Severity Levels” means the defined Error severity levels and corresponding required service level responses, Response Times, Resolutions and Resolution Targets referred to in the Severity Level Table.
i. “Severity Level Table” means the table set forth below.
ii. “Severity P1” has the meaning set forth in the Severity Level Table.
iii. “Severity P2” has the meaning set forth in the Severity Level Table.
iv. “Non-Severe Error - P3” has the meaning set forth in the Severity Level Table.
v. “Non-Incident - P4” has the meaning set forth in the Severity Level Table.
z. “Space” means the online storage sharing services provided to Customers via a distributed network (“Storage Network”) of Storage Nodes by Company.
aa. “Storage Materials” means data and other materials stored by Customer on the Storage Services.
ab. “Storage Node” means a third-party device that operates Company Software and is part of the distributed network comprising the Storage Services.
ac. “Storage Node Software” means the Storage Node Software which, when installed on a Device, enables such Device to participate in the Storage Network.
ad. “Storage Services” means the service provided by Company to Customers via the Storage Network for the transfer of Storage Materials, as defined below, between the our CLI, a distributed network of Storage Nodes, and one or more Satellites operated by Company or third parties that independently operate Open Source Software to facilitate storage of the Storage Materials.
ae. “Support Hours” Access to Impossible Cloud’s support system is available 24x7x365 and any system issues have automated escalation.
af. “Support Period” means the term during which Company provides the Support Services to Customer as set forth in any Order between Company and Customer or as specified in a Customer Agreement.
ag. “Support Request” has the meaning set forth in Section 8.
ah. “Support Services” means Company’s support of the Storage Services or Storage Nodes, but excluding any Out-of-scope Services.
ai. “Support Tiers.” Support responsibilities for Customer and/ or Customer’s End Users are divided into three tiers of ownership:
i. Tier 1 Support is provided by the Customer to Customers End Users.* Tier 1 Support is responsible for handling the initial communication with the Customers End User and for documenting the Incident in the form of a ticket. Tier 1 Support performs basic triage resulting in Resolution of the Incident or escalation to Tier 2. All communication with the Customer’s End User is provided by Tier 1 Support, which allows Customers to control the message to their End Users. In order to communicate effectively with the Customer’s End Users about the status of their ticket, it is expected that Tier 1 Support will continue to communicate with Tier 2 Support on the progress of the ticket until the ticket is Resolved.
* If a developer or partner has developed a CustomerApplication that incorporates Storage Services Storage Nodes, Uplink or the Open Source Software into the Customer Application, and the support issue is raised by an End User of that Customer Application, the developer or partner is responsible for Tier 1 support of incidents involving Customer’s End Users of the developer or partner’s Customer Application.
ii. “Tier 2 Support” is provided by Company. Tier 2 Support is responsible for advanced troubleshooting and Resolution of Incidents that require deeper expertise on the Storage Services functionality.
iii. Tier 3 Support is provided by the Company. Tier 3 Support is responsible for all incidents and problems that cannot be resolved in a timely manner by Tier 2 Support. Tier 3 Support includes engineers from product development and networking, as well as other functional specialists, including architects and security specialists.
aj. “Supported Software Versions” means the current Major Release of the Software, (ii) any other Major Release that was first made generally available and backwards compatible with the Storage Services or Storage Nodes.
ak. “Technical Contact” has the meaning set forth in Section 8.
al. “Third-party Products” means all third-party software, computer hardware, network hardware, electrical, telephone, wiring and all related accessories, components, parts and devices.
an. “Uptime Availability” means that the Storage Services will be available and online in accordance with the SLA defined herein.
(a) Registration. This Agreement shall be effective on the date the Customer first registers for an Account, as defined herein, for access to the Storage Services (the “Effective Date”). Company may update the content, functionality, and user interface of the Storage Services from time to time, in its sole discretion. In order to use the Storage Services you will need to register for an account (“Account”). In connection with your creation of any Account, you must (i) provide accurate, current and complete Account information, (ii) maintain and promptly update your Account information as necessary, including a valid email address, (iii) maintain the security of your Account, including by not using the same password for the Storage Services that you use for third-party products or services, (iv) not disclose your password, API keys, or private keys to any third party, and (v) immediately notify us if you discover or otherwise suspect any unauthorized activities in connection with your Account or the Storage Services. You acknowledge and agree that, in addition to other circumstances, if you lose your private keys, you will not be able to recover any Storage Materials. Customer acknowledges that they retain administrative control over to whom they grant access to Storage Materials maintained in the Storage Services.
(b) Access Rights. Customer has a non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement) right to use the Storage Services pursuant to the terms of this Agreement during the applicable Term as defined below.
(c) Usage Restrictions. Customer shall not (a) reverse engineer, copy, modify, adapt, hack the Storage Services or otherwise attempt to gain unauthorized access to the Storage Services or its related systems or networks; (b) without authorization, access the Storage Services, the Documentation, or Company’s Confidential Information to build a competitive product or Storage Services; (c) alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Storage Services; (d) access or use the Storage Services: (i) to store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (ii) in violation of applicable laws; (iii) to store material knowingly or intentionally containing software viruses, worms, Trojan horses, or other harmful computer code, files, or scripts; or, (iv) in a manner that interferes with or disrupts the integrity or performance of the Storage Services (or the data contained therein); or, (e) register for more than one Account per Satellite.
(d) Sensitive/Personal Information. You agree that you shall not use the Storage Services to send or store personal information subject to special regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act, and/or any other data protection laws) including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government-issued identification numbers, health-related information, biometric data, financial account information, personally identifiable information collected from children under the age of 13 or from online services directed toward children, and real time geo-location data which can identify an individual, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs) without entering into a separate agreement with Company.
Every end user and vendor is responsible for identifying and mitigating risks associated with the protection of confidential information.
(e) Derived Data. Except for software subject to the Open Source License, and except for any rights expressly granted under this Agreement, Company and its licensors own and shall retain all right, title, and interest in and to the Storage Services (including any improvements, enhancements, customizations, and modifications thereto), the Documentation, Company Confidential Information, and the Derived Data, including, without limitation, all related intellectual property rights therein. For purposes hereof, the term “Derived Data” means data derived from operation of the Uplink and of the Storage Services via the Uplink, and any data that is aggregated by Company (including aggregations with data sourced from other Customers and other third party data sources), and data and information regarding Customers’ access to and participation in the Storage Services, including, without limitation, statistical usage data derived from the use of the Storage Services and configurations, log data and the performance results related thereto. For the avoidance of doubt, nothing herein shall be construed as prohibiting Company from utilizing Derived Data to optimize and improve the Storage Services or otherwise operate Company’s business; provided that if Company provides Derived Data to third parties, such Derived Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer to any third party. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
(f) Right to Suspend. Company may immediately, with or without notice, suspend the Account of any Customer or Customers End User who: (a) violates this Agreement (b) is using the Storage Services in a manner that Company reasonably believes may cause a security risk, is in breach of these terms and conditions, conducts illegal activities, is a disruption to others’ use of the Storage Services or liability for Company.
(g) DMCA Policy. Impossible Cloud GmbH respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the US Copyright Office website at https://www.copyright.gov/legislation/dmca.pdf , Impossible Cloud will respond expeditiously to claims of copyright infringement committed using the Impossible Cloud Storage service and/or the Impossible Cloud website (the “Site”) if such claims are reported to Impossible Cloud’s Designated Copyright Agent on legal@impossiblecloud.com.
If you are a copyright owner, authorised to act on behalf of one, or authorised to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following DMCA Notice of Alleged Infringement and delivering it to Impossible Cloud’s Designated Copyright Agent. Upon receipt of Notice as described below, Dropbox will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Site.
(a) Fees. You will pay the Fees and any other amounts due as you are otherwise notified via the Storage Services of the fees applicable to use of the Storage Platform ("Fees"). All Fees are payable monthly exclusive of any applicable taxes, which are your sole responsibility. We will provide notice at least thirty (30) days in advance of any increase to the Fees. For more on how Fees typically are calculated, please see the documentation for details
(b) Payment. Except where otherwise indicated via the Storage Services we will charge all Fees to a payment method designated by you from the available options you have via the Storage Services (the “Payment Method”). You represent and warrant that you are authorized to use the Payment Method and authorize us to charge all amounts due hereunder to the Payment Method. If your Payment Method cannot be verified, is invalid, or is not otherwise acceptable, your right to use the Storage Services may be suspended and/or terminated automatically. Fees will be charged on a monthly basis based on your prior month’s usage. You can avoid incurring future Fees at any time by discontinuing your use of the Storage Services to store your Storage Materials.
(c) Late Fees. Except as prohibited by law, we may assess a late charge if you do not pay Fees when due which you will pay at the lesser of 1.5% of the unpaid amount per month or the maximum rate permitted by law along with our costs of collection including but not limited to reasonable attorneys' fees and other legal fees and costs. In addition, we may suspend and/or terminate your access to the Storage Services immediately without notice if you fail to pay Fees on time.
(d) Promotional Credits. From time to time, Company or an authorized third party may make available certain credits against future charges for promotional purposes which may include marketing incentives, referral, or other events (“Promotional Credits”). Promotional Credits are valid for the period as stated in the terms of any such Promotional Credits (the “Usage Period”). Promotional Credits that have not been used by the end of the Usage Period will expire. All Company promotion codes are subject to the following terms, in addition to any terms printed on the applicable promotional material:
i. A Company promotion code may be redeemed only during the period shown in the selected promotional media, or, if none is stated, then for a period of three (3) months from the promotion date;
ii. You must have an Account in good standing to redeem a Company Promotional Credit;
iii. No adjustments can be made to prior purchases;
iv. Company Promotional Credits have no cash value and cannot be redeemed for cash or assigned or transferred for value, in whole or in part.
Material relating to the Software, provided, however, that Licensee shall be permitted to retain a full copy of all material
subject to the confidentiality provisions of this agreement.
(a) License. You grant Company a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, and fully sublicensable right to reproduce, modify, distribute, and export the Storage Materials solely as necessary to meet our obligations hereunder and to comply with your instructions to store such Storage Materials via the Storage Services.
(b) Backup. Company does not guarantee the maintenance of any Storage Materials and is not responsible for any loss, misuse, or deletion of Storage Materials or any failure of any Storage Materials to be stored or encrypted. You are solely responsible for backing up and maintaining copies of the Storage Materials.
(c) Security. You are responsible for properly configuring and using the Storage Services to store your Storage Materials and for maintaining appropriate security of your Storage Materials, which includes client-side encryption.
(d) Compliance with Laws. You are solely responsible for ensuring that storage of your Storage Materials via the Storage Services is in compliance with all applicable laws. We make no representations or warranties regarding the suitability of the Storage Services for the storage of any particular types of data or for your specific usage. Company makes no representation or warranty that the using the Storage Services to store any Storage Materials that include personal data or sensitive data requiring heightened security protections complies with any specific regulations or laws, including without limitation (i) “protected health information,” as defined under the Health Insurance Portability and Accountability Act (“HIPAA”), (ii) “cardholder data,” as defined by the Payment Card Industry Data Security Standard (“PCI DSS”), or (iii) “Sensitive Personal Data” as defined under the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”) and other applicable law. You must provide all notices to, and obtain any necessary consents from, third parties as required by applicable law in connection with the storage of Storage Materials via the Storage Services. We reserve the right at any time, without notice, to remove, reject or delete any Storage Materials that contain unencrypted and/or plain text data or otherwise violate this Agreement.
(a) Term. This Agreement commences on the Effective Date and shall remain in effect per the terms below.
(b) Termination. Either party may terminate this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party, except where termination may be earlier affected as otherwise stated in this Agreement; or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days, however, Customer may not terminate this Agreement until all of Customer’s Storage Materials are removed from the Storage Services.
(c) Effect of Suspension or Termination. Upon expiration or termination of this Agreement for any reason, all use of the Storage Services and any other rights granted to Customer under this Agreement shall immediately terminate, and Customer shall immediately cease all use of the Storage Services. Customer acknowledges and agrees that when Customer’s subscription expires, or if Customer’s access to the Storage Services is otherwise suspended or terminated for any reason, Customer will no longer have access to the Storage Materials stored in the Storage Services and Customer’s Storage Materials may not be recoverable. As earlier stated, there is no guarantee that any Storage Materials will be available on demand or retrievable at any time. Customer is responsible for maintaining backup copies of all Storage Materials at all times. Company is not responsible for any loss or damage to any Storage Materials. If Company terminates or suspends Customers access to the Storage Services for reasons other than Customer’s breach of the Agreement, negligence, or misconduct, Company will make commercially reasonable efforts to provide you an opportunity to retrieve your Storage Materials via the Storage Service.
To the extent Customer uses the Storage Services in connection with Out of Scope Services, any acquisition and use by Customer or Customer’s End Users of such Out of Scope Services is solely the responsibility of Customer. Customer acknowledges that providers of such Out of Scope Services may have access to Storage Materials in connection with the interoperation and support of such Out of Scope Services with the Storage Services. To the extent Customer authorizes the access or transmission of Storage Materials through a Third Party Service, Company shall not be responsible for any use, disclosure, modification or deletion of such Storage Materials or for any act or omission on the part of such third party provider.
Notwithstanding anything herein to the contrary, Company reserves the right to change or update the Storage Services at any time. Such changes will be documented in the Documentation prior to, or within a reasonable amount of time following, such changes. If such changes constitute a Major Release, and the Major Release is not backwards compatible with the Supported Software Services, Company will continue to provide support for the incompatible Major Release for a minimum of three (3) months. If Company determines that it will deprecate support for the incompatible Major Release, Company will provide a minimum of three (3) months notice that the unsupported Major Release will be deprecated via deprecation notice and by publishing such notice in the Documentation.
(a) Support Responsibilities. Company shall perform Support Services during the Support Hours throughout the Support Period in accordance with the terms and conditions of this Policy.
(b) Support Service Responsibilities. Company shall:
i. Respond to and Resolve all Support Requests in accordance with the Service Levels;
ii. Provide email and Community support to Customer during Support Hours by means of the support page located here
(c) Errors. This Section applies only to Errors. Response Times and Resolution Targets are set forth in the Severity Level Table below. Response Time will be measured from the time Company receives a Support Request until Company has responded to that Support Request. Resolution Target will be measured from the time Company receives a Support Request until Company has Resolved that Support Request. “Resolve,” “Resolved,” “Resolution,” and correlative capitalized terms mean, with respect to any particular Support Request, that Company has corrected the Error, whether by a work-around or any other reasonable means, that prompted that Support Request. Company shall endeavor to respond to and Resolve all Support Requests within the following Response Times and Resolution Targets based on Company's designation of the severity of the associated Error:
(d) Time Extensions. The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the Response Times or Resolution Targets.
Errors. This Section applies only to Errors. Response Times and Resolution Targets are set forth in the Severity Level Table above. Response Time will be measured from the time Company receives a Support Request until Company has responded to that Support Request. Resolution Target will be measured from the time Company receives a Support Request until Company has Resolved that Support Request. “Resolve,” “Resolved,” “Resolution,” and correlative capitalized terms mean, with respect to any particular Support Request, that Company has corrected the Error, whether by a work-around or any other reasonable means, that prompted that Support Request. Company shall endeavor to respond to and Resolve all Support Requests within the following Response Times and Resolution Targets based on Company's designation of the severity of the associated Error:
(e) Uptime Availability. This Section 2.e applies only to the Storage Services and does not pertain to Errors, each of which are subject to the Severity Level Table set forth in Section 2.b. Company will maintain Uptime Availability as specified in the Service Level Agreement, defined herein. In case of Company’s failure to meet the SLA terms, Company will provide Customer with credit(s) as set forth in the SLA. Uptime Availability does not include: (i) downtime that results from a User Cause or a Force Majeure Event or (ii) scheduled downtime, which shall not be more than twelve (12) hours per year. Company shall provide notice at least eight hours in advance of any scheduled downtime.
(f) Remote Services. Companies may provide services to customers remotely, including by means of telephone or over the internet (“Remote Services”), to assist in analyzing and Resolving any Error reported by a Support Request during the Support Period. In the case of any Error relating to Software, and only if requested by Customer and agreed to by Company, Customer may provide Company access to Customer Systems via remote access software (“Remote Access Software”). If Customer makes such request, the parties acknowledge and agree that Company may collect, maintain, process and use only such information as it reasonably believes is necessary to assist in analyzing and Resolving a Support Request; and use such information solely to provide the Support Services in accordance with the terms and conditions of this Policy and the Customer Agreement.
Company shall at all times treat any information it collects, maintains, processes or uses under this Section 8 as Customer’s Confidential Information and shall comply with all Customer security and encryption requirements notified to Company in writing.
(g) Contacting the Company Service Desk. Customer should contact the Company Service Desk using the following methods:
i. IMPOSSIBLE CLOUD GmbH support portal at https://hs.impossiblecloud.com/en/customer-support
(h) Personal Information. Notwithstanding anything to the contrary in this Agreement, Company will not be responsible, accountable or liable for any of the following that Customer voluntarily transmits or discloses to Company unsolicited:
i. protected health information (as that term is used in HIPAA),
ii. nonpublic personal information (as that term is used in the Gramm-Leach-Bliley Act) or
iii. personal information/data (as such terms are used in state breach notification laws or European Union privacy directives or other similar legislation).
(i) Support Requests and User Obligations.
1. Support Requests. Following receipt of a Support Request, Company shall classify the Error corrections in accordance with the severity level numbers and definitions of the Severity Level Table set forth in Section 2.b. Customer shall include in each Support Request a description of the reported Error and the time Customer first observed the Error.
2. Customer Technical Contact. Where relevant on long-term agreements, Customer shall designate in writing to Company certain individual(s) at Customer who will act as a direct liaison with Company and be responsible for communicating with, and providing timely and accurate information and feedback to, Company in connection with the Support Services (each such individual, a “Technical Contact”). The Technical Contact(s) will be the primary liaison(s) between Customer and Company in sending Support Requests and communicating with Company in connection with any matters relating to the provision of the Support Services. Customer shall submit to Company name(s) and contact e-mail address(es) of the designated Customer Technical Contact(s).
3. Customer Obligations. User shall, by and through their Technical Contact(s), provide Company with:
(i) prompt notice of any Errors; and
(ii) each of the following to the extent reasonably necessary to assist Company to reproduce operating conditions similar to those present when Customer detected the relevant Error and to respond to and Resolve the relevant Support Request:
(a) output and other supporting data, documents and information, which may be required to identify the Storage Materials as defined in the Customer Agreement; and
(b) solely if requested by Customer and solely with respect to Software Errors, remote access to the Customer Systems in accordance with Section 2.f, subject to Company’s compliance with all of Customer’s security and encryption requirements notified to Company in writing; and
(c) such other reasonable cooperation and assistance as the Company may request.
(j) Incident Resolution Process.
1. The Company Service Desk will use commercially reasonable efforts to resolve Incidents and answer questions to resolve Support Requests within the Resolution Target specified in the Severity Level Table set forth above.
2. In cases where the Company Service Desk is unable to resolve the Incident, it will be escalated to the appropriate Company Tier 3 Support staff (with regard to Company Platform Services Incidents) or Customer Tier 1 Support staff (with regard to Incidents determined not to be related to the Company Platform Services) for the next level of Incident Resolution.
3. During the process of Incident Resolution, the requester will be notified when the problem is solved or when Company changes the forecasted date of Resolution via email.
4. The Company Help Desk shall use commercially reasonable efforts to identify the cause of problems involving public or Customer-owned software, network or computer infrastructure, but shall not be responsible for correcting or resolving any such problems. To the extent that Company is able to determine the external problem cause, Company will inform the requester and close the request log. Company Help Desk support will not include the responsibility to cure or correct defects in any non-Company products, services, or infrastructure, including, but not limited to Custom Development, Customer Systems, or Third-party Products and Services.
(k) Supported Releases for Software. Notwithstanding anything herein to the contrary, Company provides Support Services for (i) the current Major Release of the Software, (ii) any other Major Release that was first made generally available and backwards compatible with the Storage Services or Storage Nodes (the “Supported Software Versions”).
1. The Company Service Desk will use commercially reasonable efforts to resolve Incidents and answer questions to resolve Support Requests within the Resolution Target specified in the Severity Level Table set forth above.
2. In cases where the Company Service Desk is unable to resolve the Incident, it will be escalated to the appropriate Company Tier 3 Support staff (with regard to Company Platform Services Incidents) or Customer Tier 1 Support staff (with regard to Incidents determined not to be related to the Company Platform Services) for the next level of Incident Resolution.
3. During the process of Incident Resolution, the requester will be notified when the problem is solved or when Company changes the forecasted date of Resolution via email.
4. The Company Help Desk shall use commercially reasonable efforts to identify the cause of problems involving public or Customer-owned software, network or computer infrastructure, but shall not be responsible for correcting or resolving any such problems. To the extent that Company is able to determine the external problem cause, Company will inform the requester and close the request log. Company Help Desk support will not include the responsibility to cure or correct defects in any non-Company products, services, or infrastructure, including, but not limited to Custom Development, Customer Systems, or Third-party Products and Services.
(a) Company will use commercially reasonable efforts to meet the following service level commitment:
(i) Storage Services SLA: except for Maintenance Windows, the Storage Services will be available 99.95% of the time. We calculate availability based upon the service records we maintain. We will use reasonable efforts to notify you in advance of any scheduled maintenance.
(ii) Edge Services SLA: except for Maintenance Windows, the Edge Services will be available 99.9% of the time.
(a) We calculate availability based upon the service records we maintain. We will use reasonable efforts to notify you in advance of any scheduled maintenance.
(b) Our SLA obligations do not extend to any unavailability of the Storage Services that is caused by: (i) any hardware or software that you use in connection with the Storage Services; (ii) misuse of our Storage Services, including use in breach of the Agreement or use other than in accordance with any content or Documentation or other instructions provided by Company; (iii) circumstances or events beyond the reasonable control of Company; (iv) maintenance or scheduled downtime; or (iv) our suspension or termination of your access to the Storage Services pursuant to the rights we have reserved under the Impossible Cloud agreements.
(c) Scheduled Downtime. Scheduled Downtime will generally occur during the Maintenance Windows. Company will endeavor to provide notice at least eight (8) hours in advance of any scheduled downtime occurring outside of the Maintenance Windows.
(d) Maintenance Windows. Customers acknowledge potential unavailability due to maintenance performed by company. Company will use reasonable efforts to schedule maintenance during non-peak usage hours. We will endeavor to limit actual maintenance outages to the minimum necessary to be consistent and reliable.
To the extent that Customer or Customer’s End Users provide Company with any suggestions, ideas, enhancement requests, recommendations, or other feedback or information (collectively, “Feedback”), Customer hereby grants to Company a fully paid-up, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to freely use, disclose, and otherwise exploit such Feedback, including but not limited to the incorporation of the Feedback into future versions of the Storage Services without any compensation or other obligation to Customer, including intellectual property rights.
(a) To the fullest extent permitted by applicable law, you agree to defend, hold harmless, and indemnify the Company from and against any and all losses, liabilities, claims, or demands, including but not limited to reasonable attorney’s fees, made by any third party due to or arising out of (i) your use of the Storage Services, (ii) the Storage Materials, (iii) your sharing or rental of Space; (iv) any Feedback you provide; or (v) your breach of any of this Agreement.
(b) Company reserves the right to exercise sole control over the defence and settlement of any claim subject to indemnification hereunder at your expense. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and the Company. You may not settle any claim without our prior written consent.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE STORAGE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND COMPANY AND ITS SUBCONTRACTORS AND AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT WARRANT THAT ACCESS, USE, OR OPERATION OF THE STORAGE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED. COMPANY IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE MAINTENANCE, STORAGE, RETRIEVABILITY, OR CONDITION OF STORAGE MATERIALS.
(a) Consequential Damages. IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, RELATED TO LOSS OF REVENUE, INCOME, OR PROFITS, LOSS OF USE OR DATA, DAMAGES FOR BUSINESS INTERRUPTION, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR TO THE ACCESS OR USE OF THE STORAGE SERVICES OR RELATED COMPONENTS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY’S AGGREGATE LIABILITY TO THE CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO THE CUSTOMER’S USE OF THE STORAGE SERVICES, OR OTHERWISE RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED, OTHER THAN TO THE LESSER OF FIFTY U.S. DOLLARS ($50) AND THE AMOUNTS PAID BY CUSTOMER TO COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM FIRST AROSE.
(c) Promotional Credit. IN THE EVENT A VALID PROMOTIONAL CREDIT IS NON-FUNCTIONAL DURING THE REDEMPTION PERIOD, THE CUSTOMER’S SOLE REMEDY, AND THE COMPANY’S SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH PROMOTIONAL CREDIT.
(d) THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
(e) THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Elements of the Storage Services may be subject to export laws and regulations of the United States and other jurisdictions. The customer represents that it is not named on any U.S. government denied-party list. The Storage Services may not be used in any country that is subject to an embargo by the United States, and the Customer may not use the Storage Services in violation of any export restriction or embargo or sanctions by the United States or any other applicable jurisdiction. In addition, customers must ensure that the Storage Services are not made available for use in jurisdictions or by persons or entities blocked or denied by the United States government or any other applicable jurisdiction. Customer and Customer’s End Users shall not export any product or use the Storage Services to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
Except as explicitly set forth herein, Company makes no representations that the Storage Services is appropriate for use in any jurisdictions. Those who access or use the Storage Services from any jurisdiction do so at their own risk and are responsible for compliance with any and all laws or regulations that apply in such jurisdictions. The company may offer services in other jurisdictions that are subject to different terms and conditions. In such instances, the terms and conditions governing those other jurisdictions shall take precedence over any conflicting provisions in this Agreement.
(a) Governing Law; Arbitration. This Agreement is governed by the laws of Germany without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
(b) Initial Dispute Resolution. The parties agree that most disputes can be resolved without resort to litigation. If you have any dispute with us, you agree that before taking any formal action, you will contact us at legal@impossiblecloud.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Impossible Cloud, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
(c) Binding Arbitration. If the Parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its formation, performance and breach), the Parties’ relationship with each other and/or your use of the Storage Services shall be resolved solely and exclusively by final and binding arbitration initiated and conducted according to the Hamburg International Arbitration Center in effect as of the date hereof before a single arbitrator. If the Parties cannot agree upon the selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. Notwithstanding the foregoing, either party may enforce judgment upon any arbitration award in any court of competent jurisdiction located in Hamburg. Additionally, the Parties may seek injunctive or other equitable relief to protect its Intellectual Property Rights, Confidential Information, or as otherwise required to prevent irreparable harm, in any court of competent jurisdiction selected by the Company. The prevailing party in any action or proceeding hereunder, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees. The parties understand that absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
(d) Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND IMPOSSIBLE CLOUD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(e) Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in small claims court in the relevant German authority for disputes or claims within the scope of that court’s jurisdiction.
(f) Changes to This Section. IMPOSSIBLE CLOUD will provide thirty (30) days' notice of any changes to this section by posting on the Offerings and Websites. Amendments will become effective thirty (30) days after they are posted on the Offerings and Websites or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Offerings and Websites.
(g) Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Offerings and Websites.
(a) Communications.
1. To Customers. The customer agrees to receive electronically all communications, agreements, documents, notices, and disclosures that Company provides in connection with the Offerings (“Communications”). The company may provide Communications in a variety of ways, including by e-mail, text, in-app notifications, or by posting them on the Company website or through the Offerings. The customer agrees that all Communications provided by Company electronically satisfy any legal requirement that such communication(s) be in writing.
2. To Company. Notices required or permitted to be given by Customer to Company hereunder shall be in writing and shall be delivered to Company with attention to IMPOSSIBLE CLOUD’s legal department Located at Building 17, 48 Jurgen Töpfer Straße, 22763 Hamburg Germany by certified mail, postage prepaid, return receipt requested or nationally recognized overnight courier service to the attention of Company’s legal department.
(b) Publicity. Company may identify a Customer as a Customer on its website and in print and other marketing materials using the Customer’s name and logo.
(c) No Agency. Other than as specified herein, neither party has any authority to create any obligation on behalf of the other.
(d) Force Majeure. Except for payment obligations, neither Company nor Customer will be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, and denial of service attacks (each a “Force Majeure Event”). The party affected shall be relieved from its applicable obligations as long as the Force Majeure Event lasts and hinders the performance of said obligations. The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event with reasonable dispatch; if Company is the party affected, this requirement can be satisfied by notice posted on its website.
(e) Severability; No Waiver. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
(f) Assignment. You may not assign this Agreement or any of its rights hereunder, nor delegate any of its obligations hereunder, by operation of law or otherwise, without Company’s prior written consent, provided that consent for an assignment of this Agreement in its entirety (including all Orders) will not be required in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of a party’s assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will be binding and inure to the benefit of the parties, their respective successors, and permitted assigns. There are no third-party beneficiaries to this Agreement.
(g) Company Affiliates. The term Company includes Company and its affiliates, meaning an entity which, directly or indirectly controls, is controlled by or is under common control with Impossible Cloud.
(h) Entire Agreement; Order of Precedence. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to the subject matter hereof. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any addendum hereto or any Customer Agreement, the terms of such addendum or CustomerAgreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Documentation shall be incorporated into or form any part of this Agreement. Headers used in this Agreement are for convenience only and are not intended as, nor shall they be used as, an aid to interpretation.
(i) Amendment. The company may revise this Agreement from time to time by posting the modified version on its website with or without prior notice to the Customer, except as otherwise stated herein. By continuing to access or use the Storage Services after the posted effective date of modifications to this Agreement, you agree to be bound by the revised version of the Agreement.
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