Terms of Service

Terms of Service

IMPORTANT:  READ THIS CLOUD SERVICES TRIAL AGREEMENT (“AGREEMENT”) BEFORE AGREEING TO USE THE SERVICES.  IF YOU DO NOT AGREE WITH ANY OF THE TERMS IN THIS AGREEMENT DO NOT ACCESS OR OTHERWISE USE THE SERVICES.  IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL NOT BE ABLE TO USE THE SERVICES. THIS AGREEMENT IS A BINDING AGREEMENT BETWEEN AHANA CLOUD INC. AND THE COMPANY OR OTHER LEGAL ENTITY TO WHICH THE SERVICES DESCRIBED HEREIN ARE MADE AVAILABLE (“YOU” OR “CUSTOMER”).

YOUR USE OF THE SERVICES SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW. YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING THE “ACCEPT TERMS” BUTTON TO AGREE TO THIS AGREEMENT, OR ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND, AND AGREE, TO BE BOUND BY THE TERMS CONTAINED HEREIN.  IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES. BY AGREEING TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT.

1. SERVICES.
   1. Services Description. Subject to Customer’s and its users’ compliance with the terms and conditions of this Agreement, Ahana Cloud Inc. grants Customer a non-exclusive, non-transferable right during the Trial Term (as defined in Section 3.1) to access and use its web-based service for collecting, storing, analyzing, visualizing, and reporting on certain Customer-supplied data, solely for use by Customer’s users for the purposes of determining whether Customer would like to continue with a paid or subscription license (“Services”).  The Services may consist of: (a) managing data feeds provided by Customer and/or agents of Customer (“Customer Data”), and (b) analyzing Customer Data and making available to Customer the results of such analyses through reports, including reporting delivered in an interactive dashboard format.  Customer may share any reports and reporting with its own customers, users, and clients.  Ahana Cloud Inc. reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Ahana Cloud Inc.’s services to its customers; (ii) the competitive strength of or market for Ahana Cloud Inc.’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.
   2. Implementation; Performance. Ahana Cloud Inc. will make the Services available to Customer promptly after this Agreement becomes binding upon the parties.
   3. Customer Support.  Subject to the other terms and conditions of this Agreement, Ahana Cloud Inc. will use commercially reasonable efforts to provide Customer with certain standard support services (“Support”), provided that: (a) Customer shall be responsible for the supervision, control, and management of its and its users’ use of the Services; and (b) Customer shall document and promptly report to Ahana Cloud Inc. all significant or recurring errors or malfunctions.  Customer shall implement any reasonable procedures provided by Ahana Cloud Inc. to Customer for the rectification of errors or malfunctions within a reasonable time after such procedures have been provided by Ahana Cloud Inc. to Customer.
   4. Suspension or Termination of Services. Ahana Cloud Inc. may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, or any user’s, access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Ahana Cloud Inc. receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Ahana Cloud Inc. to do so; or (b) Ahana Cloud Inc. believes, in its good faith and sole discretion, that: (i) Customer or any of its users has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement provided by Ahana Cloud Inc.; (ii) Customer or any of its users is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 1.4 does not limit any of Ahana Cloud Inc.’s other rights or remedies, whether at law, in equity, or under this Agreement.
2. CUSTOMER OBLIGATIONS.  As a condition to Ahana Cloud Inc. making the Services available to Customer, Customer acknowledges and agrees that it is responsible for each of the following:
   1. Access.  Customer will ensure that all users given access to the Services, including any applicable customers of Customer, have the right to access the information and data made accessible to them by Customer through the Services. Customer has and will retain sole responsibility for all access to and use of the Services directly or indirectly by or through Customer or its users.
   2. Permissions; Compliance.  Ahana Cloud Inc. may use the Customer Data in connection with providing the Services to Customer, including for benchmarking and security purposes.  Customer will (a) obtain all permissions, authorizations, licenses, or approvals from each applicable data source as may be necessary or required to provide the Customer Data to, or to permit the usage of such Customer Data by, Ahana Cloud Inc. in connection with the Services and (b) comply with all applicable laws in its performance under this Agreement, including, without limitation, those laws relating to data privacy. Customer hereby irrevocably grants all such rights and permissions in or relating to the Customer Data as are necessary for Ahana Cloud Inc. to perform its obligations under this Agreement. Customer agrees and acknowledges that Ahana Cloud Inc. may remove or disable any Customer Data or content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Customer Data), or for no reason at all.
   3. Data.  Customer acknowledges and agrees that in order for Ahana Cloud Inc. to provide the Services, Ahana Cloud Inc. does not need, nor does Ahana Cloud Inc. desire to receive, any personally identifiable information that would allow the identification of a particular person or that otherwise is considered to be personally identifiable data as defined under applicable U.S. or international data privacy laws (“Personal Data”).  Customer will ensure that none of the data provided by Customer to Ahana Cloud Inc. contains any: (i) Personal Data; (ii) data that is classified and or used on the U.S. Munitions list, including software and technical data; (iii) articles, services, and related technical data designated as defense articles or defense services; or (iv) ITAR (International Traffic in Arms Regulations) related data.  Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to control the content of Customer Data, including the uploading or other provision of Customer Data.  Customer also will use best industry practices in its efforts to ensure that none of the Customer Data provided by Customer to Ahana Cloud Inc. contains any viruses or other harmful computer code or similar contaminants. For clarity, Ahana Cloud Inc. acknowledges that Customer Data will include IP addresses and cookie IDs. 
   4. Restrictions.  Customer shall not: (a) make the Services available to, or use the Services for, the benefit of anyone other than Customer or Customer’s users or clients; (b) modify, copy or make derivative works based on the Services or any part, feature, function or graphics thereof or any content or design therein (collectively, the “Ahana Cloud Inc. Technology”); (c) disassemble, reverse engineer, or decompile any of the Services or any Ahana Cloud Inc. Technology; (d) access the Services to (i) build or improve a competitive product or service, or (ii) except as specifically authorized by Ahana Cloud Inc., to sell, resell, license, sublicense, distribute or “white label” the Services or otherwise commercially exploit the Services or any Ahana Cloud Inc. Technology; (e) interfere with or disrupt the integrity or performance of the Services or any data contained therein; (f) knowingly transmit through the Services any infringing, obscene, threatening, harmful, libelous, unlawful or otherwise objectionable material, including material that violates any privacy rights; (g) attempt to gain unauthorized access to the Services or its related systems or networks; (h) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services or Ahana Cloud Inc.’s provision of services to any third party, in whole or in part; or (i) publish or disclose the results of any benchmarking of the Services, or use such results for Customers’ own competing services development activities, without the prior written permission of Ahana Cloud Inc.. Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. 
   5. Security; Backups. Customer has and will retain sole responsibility for (a) all Customer Data, including its content and use; and (b) the security of Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. AHANA CLOUD INC. HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
3. GENERAL PROVISIONS.
   1. Trial Term. The Trial Term (as defined below) of this Agreement will commence on the date the Customer enters into this Agreement and shall continue for a period of fourteen (14) days (the “Trial Term”).  Ahana Cloud Inc. may extend the Trial Term in writing in its sole discretion.  If Customer desires to enter into a paid license or annual subscription term, Customer will be required to execute a separate agreement.
   2. Termination. Each party shall have the following termination rights: 
      1. Insolvency or Liquidation of Assets.  Either party may terminate the Agreement upon written notice if the other party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is the subject of any liquidation or insolvency proceeding which is not dismissed within sixty (60) days, or makes any assignment for the benefit of creditors.
      2. Convenience.  Either party may terminate this Agreement at any time during the Trial Term on prior written notice. 
      3. Breach. Ahana Cloud Inc. shall have the right, at its sole discretion, to suspend or terminate the Services upon prior written notice to Customer if Customer breaches any term of this Agreement.
   3. Effect of Termination.  Upon the expiration or termination of this Agreement, all rights, licenses, consents, authorizations, and permissions granted under this Agreement shall immediately terminate unless expressly stated otherwise.  The following provisions, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement:  Sections 3, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 and 5.
   4. Confidentiality. Neither party shall use for any reason other than to perform its obligations or to exercise its rights under this Agreement, or shall disclose to a third party, any information (a) marked or identified at the time of disclosure by the other party to this Agreement as such party’s confidential or proprietary information, or (b) that would otherwise be considered confidential or proprietary based on the type of information or the manner in which such information is disclosed (“Confidential Information”).  Confidential Information also includes the terms and conditions, but not the existence, of this Agreement. Confidential Information also includes Customer Data and the Ahana Cloud Inc. Technology. Confidential Information does not include information that, as demonstrated or evidenced by the recipient’s documentary records: (a) was already rightfully known to, or in the possession of, the recipient before the disclosure by the discloser, without an obligation to maintain its confidentiality; (b) was independently developed by the recipient without reference to, or use of, the Confidential Information of the discloser; (c) is or becomes publicly known through no fault of the recipient; (d) was disclosed to the recipient without restriction by a third party without an obligation of confidentiality.  The recipient agrees to take all reasonable precautions to protect the confidentiality of, and to protect from the unauthorized disclosure of, the Confidential Information of the discloser (but no less than a reasonable standard of care).  If Customer or any of its users chooses to provide Ahana Cloud Inc. any feedback or recommendations regarding the Services, Ahana Cloud Inc. is free to use and exploit in any way such feedback and recommendations without restriction or liability to Customer or any third party, including payment of any royalty or other fees. Upon the expiration or earlier termination of this Agreement, or upon the request of the discloser, the recipient will promptly, and without undue delay, delete or return the Confidential Information of the discloser in its possession or control, and if requested by the discloser, deliver a certificate executed by the recipient confirming compliance with the return or destruction obligation under this Section 3.4. Notwithstanding the foregoing, the recipient may retain an archival copy of the Confidential Information to the extent necessary to comply with applicable laws or archival policies, provided that such retained Confidential Information shall remain subject to all confidentiality obligations under this Agreement and shall not be used for any commercial purposes. Notwithstanding the foregoing, each party may disclose Confidential Information without the prior written consent of the other party (and no such disclosure will be deemed a breach of this Agreement) if compelled by applicable law, provided that, to the extent legally permissible, the recipient gives the discloser prior notice of such compelled disclosure and reasonable assistance, at the discloser’s expense, if the discloser seeks to contest such disclosure. 
   5. Intellectual Property.  Subject to the right granted to Customer to use the Services pursuant to Section 1.1 above, Ahana Cloud Inc. retains all rights, title, and interest, including all intellectual property rights therein, in and to the Services and the Ahana Cloud Inc. Technology. Customer has no right, license, or authorization with respect to the Services and the Ahana Cloud Inc. Technology except as expressly set forth in Sections 1 and 2, and all other rights in and to the Services and the Ahana Cloud Inc. Technology, including the intellectual property rights therein, are expressly reserved by Ahana Cloud Inc. Customer acknowledges that the Services and the Ahana Cloud Inc. Technology contain Ahana Cloud Inc.’s valuable trade secrets, proprietary information, and Confidential Information, the disclosure or misuse of which would cause substantial harm to Ahana Cloud Inc. that could not be remedied by the payment of damages alone.  Accordingly, Ahana Cloud Inc. will be entitled to seek a preliminary and permanent injunctive relief and any other equitable relief for any breach or threatened breach by Customer of this Agreement relating to such unauthorized disclosure or misuse without having to post bond or other security.  Subject to the right granted to Ahana Cloud Inc. to use the Customer Data as set forth herein, Customer retains all right, title and interest, including all intellectual property rights therein, in and to the Customer Data.    
   6. Limitation of Liability.  Other than for liabilities arising out of breaches of Section 3.4 (“Confidentiality”) or Section 2.4 (“Restrictions”), or Customer’s indemnification obligations under Section 3.8, in no event will either party’s and its affiliates’ aggregate liability for all claims of any nature arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, exceed the amount of one thousand dollars.  Other than for liabilities arising out of breaches of Section 3.4 (“Confidentiality”) or Section 2.4 (“Restrictions”), or Customer’s indemnification obligations under Section 3.8, neither party shall be liable to the other party for any lost profits, loss of data, loss of use, costs of procurement of substitute goods or services, or for any indirect, special, incidental, punitive, or consequential damages however caused and, whether in contract, tort or under any other theory of liability, whether or not the party has been advised of the possibility of such damages. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose. THE PARTIES  ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
   7. Governing Law; Jurisdiction; Venue; Attorneys’ Fees.  This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of laws principles. For all matters and disputes arising under this Agreement, the parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the County of San Mateo, State of California, and waive any jurisdictional, venue or inconvenient forum objections to such courts. The prevailing party in any litigation shall be entitled to recovery of its reasonable attorneys’ fees from the other party in addition to any other award of damages from the court.
   8. Customer Indemnification.  Customer agrees to indemnify, hold harmless, defend or, at its option, settle any Claims brought against Ahana Cloud Inc. arising out of or relating to: (i) Customer’s or any of its users’ breach or alleged breach of Section 2 (“Customer Obligations”) of this Agreement; (ii) Customer Data; or (iii) a violation of applicable laws. Customer agrees to pay, subject to the limitations set forth in this Agreement, any final judgment entered against Ahana Cloud Inc., as a result of such breach, in any such Claim defended by Customer; provided that: (a) Customer is given prompt written notice of any such Claim and sole control of the defense or settlement negotiations of the Claim; and (b) Ahana Cloud Inc. reasonably cooperates with Customer, at Customer’s expense, in such defense.  
   9. Warranty Disclaimer. AHANA CLOUD INC. DOES NOT WARRANT THAT THE SERVICES WILL FUNCTION UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SET FORTH ABOVE, THE SERVICES ARE PROVIDED “AS IS” AND AHANA CLOUD INC. MAKES NO OTHER WARRANTIES WITH REGARD TO THE SERVICES AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CUSTOMER DOES NOT WARRANT THAT THE CUSTOMER DATA WILL FUNCTION UNINTERRUPTED OR ERROR FREE. 
   10. Force Majeure.  Ahana Cloud Inc. will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond the reasonable control of Ahana Cloud Inc., including acts of God, epidemics and pandemics, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, cyber attacks or war, hosting or similar services outages or denial of service (such as Amazon Web Services outages or denial of service), cyber attacks,  worms, bots, or similar malware.
4. MISCELLANEOUS PROVISIONS.
   1. Amendment; Severability. No amendment or modification of this Agreement is effective unless it is in writing and signed by each party. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, it shall be modified to accomplish the original intent of the parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.  
   2. Waiver. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.  
   3. Assignment. Neither party shall have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Ahana Cloud Inc. may assign this Agreement as part of a corporate reorganization, upon a change of control, consolidation, merger, or sale of all or substantially all of its assets.  Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.  Any purported assignment, delegation, or transfer in violation of this Section 4.3 shall be null and void.
   4. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 2.3 (“Data”), Section 2.4 (“Restrictions”), and Section 3.4 (“Confidentiality”) would cause Ahana Cloud Inc. irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Ahana Cloud Inc. will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
   5. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent email (with confirmation of transmission by reply email or read receipt) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses as may be designated by a party from time to time.
   6. Relationship of the Parties. The parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Customer and Ahana Cloud Inc.. 
   7. Entire Agreement. This Agreement, together with the exhibits referenced herein, constitutes the complete and exclusive agreement between Ahana Cloud Inc. and Customer with respect to the subject matter hereof, and supersedes all prior understandings and agreements.  Any different or additional terms and conditions set forth in any purchase order shall have no force or effect on this Agreement.  Except as otherwise provided in this Agreement, no modification of this Agreement will be effective unless in writing and signed by authorized representatives of both parties.