The Cloudbric Service Agreement (“SA”) is between the customer who subscribes to the services (“Customer”) and Penta Security Inc. (“Company”) located in Sewoo Bldg., 9th Fl. 115, Yeouigongwon-ro, Yeongdeungpo-gu, Seoul, Republic of Korea.
This SA is the complete and exclusive agreement between the Customer and the Company regarding its subject matter, and the SA supersedes and replaces any agreement, understanding, or communication between the Customer and the Company, whether written or oral.
The following terms used for this SA are defined as follows.
“Acceptable Use Policy,” or “AUP,” means the Company’s Acceptable Use Policy which can be found in Cloudbric Website.
“Account Information” means the Account Information as defined in Section 5.1. of this SA.
“Cloudbric Website” means a site that enables the Customer to subscribe to the Services of the Company in accordance with the terms of agreement.
“Business Day” means 09:00 a.m. to 06:00 p.m. (UTC+9), from Monday through Friday excluding the holidays of the Republic of Korea.
“Penta Security Inc.’s confidential information” means the log records, reports, and benchmarking information disclosed or provided to the Customer for the purpose of provision of services.
“Customer” means an individual or an entity agreed to the terms of agreement for the purpose of using the services of the Company.
“Customer content” means the content of the Customer as defined in Section 5.4. of this SA.
“Feedback” means any and all suggestions, comments, opinions, or other feedback about the Services of the Company provided directly or indirectly by anyone including the Customer.
“Payment Plan” means the payment plan submitted to the Company by the Customer in the process of subscribing for the services.
“Personal Information” or “PI” means the personal information pertaining information that is used to identify a specific individual such as, but not limited to, code, text, voice, sound, image, other forms of name, or government identification number, including the information which by itself cannot identify an individual, but is able to if the information is to be combined with another information.
“Services” means the specifications including, but not limited to the data and features provided by Company in accordance with the agreement, which does not include third-party services.
“SLA Credit” means the credits for the loss of services of eligible services as defined in the Service Level Agreement (SLA).
“Third Party Services” means the services provided to the Customer by a third party regarding the services provided by Company.
2.1 Provision of Services. The Customer can access and use the provided services according to the terms of the agreement, and the Company can change, discontinue, add, modify, reprice, and remove the features and/or operational policies of the services provided by the Company.
4.1 Subscription and use right. According to the terms and conditions of this agreement, for the duration of the term of this agreement, the Company grants the Customer a non-exclusive, non-transferable, revocable right to use and access the services for internal purposes. If applicable, the Customer can access any services and upgrades through the Cloudbric Website. The Company can modify the services at any time. This agreement supersedes any license terms provided by the Company.
4.2 Resale of the services. The Customer shall not be permitted to resell the services to the Customer’s customers, end users, or any third parties without the Company’s prior written consent.
5.1 Obligations. The Customer agrees to the following:
(i) comply with all applicable laws, rules, and regulations and the terms of this Agreement;
(ii) pay the fees for the Services when due;
(iii) use reasonable security precautions including private keys and other security options to grant access to the Services to the employees, provided with access privileges by the Customer, or other individuals;
(iv) cooperate with the Company’s reasonable investigation for services outages, security issues, and any breach of this agreement;
(v) comply with all license usage terms for any software, contents, services, or websites, whether provided through the services of the Company or a third party);
(vi) provide the latest information regarding billing information, name, password, E-mail address, and device information (“Account Information”) in the process of establishing a Customer account associated with the Services;
(vii) keep the Customer’s billing contact and other Account Information up to date;
(viii) be responsible for the use of the Services by the Customer, any individual whom the Customer has given access to the Services, and any individual who accesses the Services;
(ix) make commercially reasonable efforts to prevent unauthorized access or use of the Services and immediately notify the Company of any unauthorized access, suspected breach of security or any security violations;
(x) comply with Section 9.2. as stated below;
(xi) unless expressly authorized by the Company, agrees to use the latest version of the Services or any portion thereof. Customer may not use the Services in any situation in which a failure or a fault of the Services could cause death, serious physical injury, or physical or environmental damage. For example, the Customer cannot use the Services, or allow other individuals to use the Services for manufacturing and using military arsenals and weapons for mass destruction, using aircrafts or other modes of human mass transportation, and nuclear or chemical facilities. In the even of dispute between the Company and Customer regarding the interpretation of the applicable law or the agreement, the Company’s reasonable decision shall take precedence.
When the Customer experiences issues in accessing the Services, the Customer is at its own judgment and risk in proceeding with the bypass of the Services (“Bypass by Customer”), and the Company shall not be liable for any damages and/or loss caused by the Bypass by Customer.
5.2 Representations and Warranties. The Customer represents and warrants that it has the full power and authority to enter into this Agreement and grant the Company the rights granted herein. The Customer represents and warrants that it does not and shall not violate or infringe any laws and/or any intellectual property right of any third party. The Customer represents and warrants that its customers and end users’ personal information and confidentiality of the personal information, and the maintenance of the personal information are maintained with relevant law and regulations, in particular with strict terms of confidentiality as stated as followed.
5.3 Confidentiality. The Customer agrees not to use any confidential information of the Company except in association with authorized use of Services. The Customer agrees not to disclose the Company’s confidential information to any third person or party for a period of [five (5) years] following the termination or expiration of this agreement except for the following reasons.
(i) The Customer was already in possession of the information prior to receival from the Company.
(ii) The information is publicly known or able to be acquired by proper means.
(iii) The information is rightfully received by the Customer from a third party without a duty of confidentiality.
(iv) The information is disclosed by the Company to a third party without a duty of confidentiality on the third party.
(v) The information is independently developed or learned by the Customer
(vi) The information is disclosed by the Customer with a prior written approval from the Company.
If the Customer is required to reveal the Company’s confidential information under a subpoena, court order, or any other operation of the law, the Customer will provide reasonable prior notice to the Company and will request a protective order. The Customer shall promptly return the Company’s confidential information upon the Company’s request. Upon a breach of this confidentiality obligation by the Customer, the Customer shall compensate the damages of 6 times of monthly fees paid by the Customer to the Company to subscribe to the Services.
5.4 Customer Content. For the purpose of providing the Services, the Customer agrees to sending all traffic directed towards the Customer’s site to the Company’s designated IP address and caching of the traffic directed towards the Customer’s site and the document, information, contents, and metadata of the Customer’s site.
The Customer hereby grants the Company a non-exclusive, worldwide, fully paid-up, royalty-free license to use, host, transfer, display, disclose, or modify certain elements of the Customer Content in any media format or analyze the Customer Content for Validation of Service Agreement. Such license will apply to any form, media, or technology currently known or hereafter developed.
The Customer hereby warrants and represents the following.
(i) The Customer is the sole owner of and/or holds all rights of the Customer Content.
(ii) There are no restrictions and/or limitations which prevent or restrict the Customer from granting the Company the license stated above.
(iii) The Customer Content shall not:
(a) Facilitate or promote illegal activity or contain illegal contents.
(b) Contain content, material, or information that is defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability.
(c) Contain sexually suggestive or explicit content.
(d) Infringe or violate the right of any third party.
(e) Disparage, defame, or discredit the Company or any third person.
(f) Contain content that violates any laws, rules, regulations, or policies of any competent jurisdiction.
The Company may disallow the use of the Services if and when the content is flagged or blocked at the Company’s sole discretion without any prior notice, and the Customer will not have any complaint, claim, or demand towards the Company regarding the deletion, block, or removal of content the Customer created, contributed to, or used.
The Company does not warrant the maintenance of a back-up copy of the Account Information saved to the website of the Company. The Company does not provide a back-up service to the Customer, and it is the Customer’s responsibility to keep a copy of the Account Information on the Customer’s site for back-up purposes.
6.1 Fees. The Customer agrees to pay the fees charged by the Company and comply with the payment procedure provided by the Company.
6.2 Taxes. Unless otherwise stated, the fees will not include any direct or indirect local or foreign taxes or withholding taxes (Collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with its use of the Services.
7.1 Ownership of Services and Cloudbric Website. The Customer acknowledges and agrees that the Company owns all legal right, title, and interest in and to the Cloudbric Website and the Services provided by the Company including, without limitation, all patent rights, copyrights, trademarks, trade secrets, and all other intellectual property and proprietary rights embodied therein, which subsist in the Cloudbric Website and the Services provided. As between the Customer and the Company, all materials in the Cloudbric Website, including, but not limited to graphics, user and visual interfaces, images, software, applications, and texts, as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of the Cloudbric Website and its content will be provided. Also, the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Cloudbric Website are all solely owned by the Company.
7.2 Trademarks. The Customer agrees to grant the Company a non-exclusive, irrevocable, worldwide, royalty-free, fully paid-up license to use the Customer’s trademarks, marks, logos, or trade names in regards with the provision of the Services by the Company. The license granted as stated in Section 7.2 includes the right of the Company to sublicense its subsidiaries and affiliates and any third parties providing all or part of the Services on behalf of the Company.
7.3 Feedback. The Company shall own all right, title, and interest in and to the Feedbacks. The Customer hereby irrevocably assigns the Company to all right, title, and interest in and to the Feedbacks and agrees to provide the Company with any assistance the Company may request to document, perfect, maintain the Company’s rights to the Feedbacks.
8.1 Term. The term of this Agreement shall commence on the date that the Customer first accepts the Agreement and shall continue for thirty (30) days and automatically renews for successive 30-day terms unless otherwise terminated as stated in this Section 8. The Customer is granted the option not to renew the Agreement for an [additional thirty (30) days] term (“extended term”) if the notice to exercise the option is to be given by the Customer to the Company at least [seven (7) days] prior to the expiration of the then existing term. Any revised or modified terms and conditions of the Agreement shall be applicable to the extended term.
8.2 Suspension. The Company may suspend the provision of the Services to the Customer without liability in the following circumstances.
(i) If the Company reasonably believes that the Services are being used (or have been or will be used) by the Customer in violation of this Agreement.
(ii) If the Customer does not cooperate with the Company’s investigation of any suspected violation of this Agreement.
(iii) If the Company believes that the Services provided to the Customer have been accessed or manipulated by a third party without the Customer’s consent or in violation of this Agreement.
(iv) If the Company reasonably believes that the suspension of the Services is necessary to protect the Cloudbric Website or the Company’s other customers.
(v) If the payment for the Services is overdue by more than [thirty (30) days].
(vi) If the continued use of the Services by the Customer may adversely impact the Services or the systems or content of the Company or any other customer of the Company.
(vii) If the Company reasonably believes that the use of the Services by the Customer may expose the Company, its subsidiaries, and affiliates to liability.
(viii) If the suspension is required by law.
(ix) If the Company believes that the Customer causes Heavy Traffic.
The Company will give the Customer reasonable prior notice of the suspension as stated in Section 8.2 and a chance to cure the grounds in which the suspension is based, unless the company determines, based on the Company’s reasonable commercial judgment, that the immediate suspension is necessary to protect the Company, subsidiaries, and affiliates from operational, security, or any other risk or if suspension is ordered to the Company by a court or other judicial body.
If the suspension is based on the Customer’s breach of Customer’s obligations under this Agreement, then the Company may continue to charge the Customer the fees for the Services during the suspension and may charge the Customer a reasonable reinstatement fee upon reinstatement of the Services, which shall be at the Company’s sole discretion.
8.3 Blocking. The Company may block the access of the Customer, the Customer’s customers, and end users to the Customer’s site without liability if the data used by the Customer in a given month exceeds such data which the Customer has promised to use in the Payment Plan submitted to the Company by the Customer at the time of subscription to the Services. If the block occurs, the Customer may be able to use the Services only when the Customer makes additional payments to the Company for the subscription of the Services.
8.4 Termination for Convenience. The Customer may terminate this Agreement for convenience at any time. If the Customer terminates this Agreement for Convenience, the Customer shall pay the Company all amounts that would be due within [forty-five (45) days] after such termination.
8.5 Termination for Breach. The Company may terminate this agreement for the following reasons.
(i) If the Company discovers that the information the Customer provided to the Company about the Customer’s proposed use of the Services was materially inaccurate or incomplete.
(ii) If the Customer is an individual under the age of 18 or otherwise did not have the legal capacity to enter into this Agreement at the time the Customer accepted the Agreement, or if the Customer is an entity and the individual accepting the Agreement for the use of the Services for Customer did not have the legal right or authority to enter into this Agreement on behalf of the Customer.
(iii) If the Customer payment of any invoiced amount is overdue, and the Customer does not pay the undisputed overdue amount within [thirty (30) days] of the Company’s proper notice.
(iv) If the Customer’s use of the Service is in violation of this Agreement and in the Company’s reasonable commercial judgment, the termination is necessary to protect the Company, its subsidiaries and affiliates or its other customers from operational, security or other risk.
(v) If the Customer’s account has been suspended for [thirty (30) days] or more.
(vi) If the Customer fails to comply with any other provision of this Agreement and does not remedy the failure within [thirty (30) days] of the Company’s notice to the Customer describing the failure.
The Company will give the Customer proper notice of termination as stated in Section 8.5 unless the Company determines, in the Company’s reasonable commercial judgment, that the immediate termination without notice is necessary to protect the Company, its subsidiaries, and affiliates or its other customers from operational, security, or other risk. Customer may terminate this Agreement for breach upon a written notice to the Company if the Company materially fails to meet any other obligations stated in this Agreement and does not remedy the failure within [thirty (30) days] of Customer’s written notice describing the failure.
8.6 Effect of Termination. Upon expiration or termination of this Agreement, the Customer must discontinue the use of the Services and the materials provided by the Company. The customer must also return or, at the Company’s request, destroy any portion of the Services in the Customer’s possession. The Company will have no obligation to provide any transition services.
9.1 The Company is not responsible to the Customer for the unauthorized access to the Services or the unauthorized use of the Services, the Cloudbric Website and/or the Customer’s site by a third party.
9.2 If the PI of the Customer or the Customer’s customers has been leaked or the Customer’s site has been accessed without authorization, (“Accident”), the associated parties agree to proceed with the following conciliation process.
(1)The Customer shall immediately notify the Company of such Accident in writing within [seven (7) days] from the occurrence of the Accident. Such notice shall be made in a form provided by the Company including a full description of the Accident and any relevant information if available.
(2)Upon receiving such notice, the Company shall have a preliminary investigative right regarding the Accident, including the right to request the Customer to deliver and/or provide any relevant information related to the Accident to the Company. The Customer shall be required to fully cooperate on such preliminary investigation by the Company.
(3)After completing the preliminary investigation, the Company has a right to make its determination on the cause of the Accident and make such determination available to the Customer within [seven (7) days] from the determination. The Company’s determination shall be final and binding.
(4)The Company shall not be liable to the Accident that occurred during the Provisional Period.
Unless otherwise promised by the Company herein, the Company does not promise that the Services will be uninterrupted, error-free, or completely secure. The Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of the Customer’s privacy, confidential information, and/or other property. Also, there are no legal liability issues caused by a web-seal. The Company has no obligation to provide security other than as stated in this Agreement. To the extent permitted by law, the Company disclaims any and all warranties, statutory or otherwise, not expressly stated in this Agreement, including the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement. The Customer is solely responsible for the suitability of the services chosen. The Services are provided “AS IS.”
If the Company, the employees of the Company, agents, affiliates, subsidiaries, or suppliers (“Penta Security Inc. Indemnitees”) are faced with a legal claim by a third party arising out of the Customer’s actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by this Agreement, misappropriation or infringement of a third party’s intellectual property right, or violation of this Agreement (“Third Party Claim”), then the Customer will pay the cost of defending the claim (including reasonable attorney fees) and any damages, award, fine, settlement, or other amount (“Losses”) that is imposed on the Penta Security Inc. Indemnitees as a result of the claim. The Customer will hold the Company harmless from and against any and all Losses arising out of or in connection with any third party claim. The Customer’s obligations as stated in Section 11 include claims arising out of the acts or omissions of the employees of the customer, any other person to whom the Customer has given access to the Services, and any person who gains access to the Services, as a result of the Customer’s failure to use reasonable security precautions, even of the acts or omissions of such persons were not authorized by Customer. In regards with any third-party claim as stated in Section 11, the Company will
(i) give the Customer promptly written notice of such claim; and
(ii) cooperate reasonably with the Customer, at the Customer’s expense, in providing information related to the Customer’s payment of the defense of such claim and Losses arising out of such claim.
With exceptions in which it is required by the law, under no circumstances shall the Company be liable to the Customer for any compensation, indirect, incidental, punitive, or consequential damages, use of data or Customer Contents, loss, loss of profits, business rights, loss of data or Customer Contents, all loss related to the procurement of substitute goods or services, or any loss, commercial loss, limitations, negligence or strict liability, even if the Company has been advised of the possibility of such damages.
With exceptions in which it is required by the law, The Company shall not be liable to the Customer for damages for breach of any explicit or implied warranty or condition, breach of contract, negligence, strict liability, or any other legal theory related to the Cloudbric Website or the Services. If Company is found to be liable to the Customer for any damage or loss which arises under or related to the services, The Company’s total cumulative liability to the Customer shall in no event exceed the amount of fees actually paid by the customer for the services [for six (6) months] prior to the occurrence of the events that has caused the Company’s liability.
The parties associated with this Agreement acknowledges that the disclaimer of warranties, disclaimer of consequential damages, and the limitations of liability in the Agreement are of an conventional element between the parties, and the Company’s pricing reflects this allocation of risk and the limitations.
In order to resell the Services to the third parties, the Customer shall obtain a prior written consent prior to the re-sale of the Services from the Company. There are no third-party beneficiaries to this Agreement, indicating that the third parties do not have any rights against either the Company or the Customer as stated in this Agreement.
16.1 Changes to the Agreement. The Company may modify this Agreement including, but not limited to Section 6 at the Company’s sole discretion. Such modified Agreement shall be posted or linked to the Cloudbric Website or as stated in Section 16.2. Any changes made during the term of this Agreement will be in effect upon commencement of the extended term. It is the Customer’s obligation to regularly check the Cloudbric Website to view and monitor such posts and any updates related to the Services. The Customer’s continued use of the Services after such [thirty (30) days] period shall constitute the acceptance of such modified Agreement. Notwithstanding the foregoing in Section 16.1, if the Company lowers any fees, such change in fees shall be effective immediately upon such change being posted in the Cloudbric Website or as stated in Section 16.2.
16.2 Notices. Customer routine communications regarding the Services shall be sent to the address as stated below. Also, if the Customer wants to give the Company a notice regarding termination of this Agreement for breach, indemnification, or other non-routine legal matter, the Customer shall send it by electronic mail and/or air mail to the address as designated below.
Penta Security Inc.
Sewoo Bldg., 9th Fl. 115, Yeouigongwon-ro, Yeongdeungpo-gu, Seoul, Republic of Korea.
Responsible Dept. : Marketing
Email : email@example.com
The Company’s routine communications regarding the Services and legal notices will be sent through the Cloudbric Website. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered. For the purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
The Customer may not assign Customer rights and/or delegate Customer obligations under this Agreement without the Company’s prior written consent. This Agreement will be binding on and inure to the benefit of Customer’s and the Company’s respective permitted successors and permitted assigns. However, the Company, with its own reasonable judgment may use third party service providers or any affiliate or subsidiary to perform all or any part of the Services.
16.4 Force Majeure. Neither the Company nor the Customer will be in violation of this Agreement if the failure to perform the obligation is due to an event beyond either party’s control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes, or other organized labor action, terrorism, or other events of a equivalent magnitude or type for which precautions are not generally taken in the industry.
16.5 Governing Law and Jurisdiction. This Agreement is governed by the laws of the Republic of Korea exclusive of any choice of law principle that would require the application of the law of a different jurisdiction. Exclusive venue for all disputes arising out of this Agreement shall be in the Court of Republic of Korea and the parties hereto agree not to bring an action in any other venue. The Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts. Each party agrees that it will not bring a claim under this Agreement more than [one (1) year] after the time that the claim accrued.
16.6 Some Agreement Mechanics. If there is a conflict between the terms of the SA, the Service Level Agreement, or the Acceptable Use Policy, the documents will govern in the following order: the SA, the Service Level Agreement, and the Acceptable Use Policy. If any part of this Agreement is found unenforceable by a court or other tribunal, the rest of this Agreement will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. The captions in this SA are for convenience only and are not part of this SA. The use of the word “including” in this SA shall be read to mean “including without limitation.”
16.7 Relationship of the Parties. The parties’ relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
16.8 No Waiver. The Company’s failure to exercise or delay in exercising any of its rights under this Agreement will not constitute a waiver, forfeiture, or modification of such rights. The Company’s waiver of any right under this Agreement will not constitute a waiver of any other right under this Agreement or of the same right on another occasion. The company’s waiver of any right under this Agreement must be in writing.
16.9 Severability. If any provision in this Agreement is held invalid or unenforceable by a body of competent jurisdiction, such provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability. The remaining provisions of this Agreement will remain in full force and effect.
16.10 Language. The official language of this Agreement shall be the Korean language. If there are to be any differences in the translated Agreement from the original Agreement, the original Agreement written in the Korean language will take precedence.