Terms and Conditions
TERMS OF SERVICE
FOR CLOUD-BASED SERVICES
These service terms and conditions (the “Agreement”) are between Cleeks Cloud (Pty) Ltd (“Cleeks Cloud” “we,” “us,” or “our”) and you (“you,” “your,” or “Customer”). Capitalized terms used in this Agreement have the meanings given to them in the definitions below or where they are first used in this Agreement.
I. GENERAL
This Agreement governs any use by you of a Service(s), including: (i) any period during which you can use the Services (as defined below) during a Trial Term, whether or not such use is pursuant to an Order; or (ii) any period during which you pay to use the Services (defined below) during a Standard Term, whether or not such use is pursuant to an Order.
You will only be enrolled in the Standard Term and charged the associated Fees (defined below) if you (or a party acting on your behalf) pay for Services for the Standard Term as specified in the applicable Order.
BY ACCEPTING THESE TERMS, YOU: (I) ACKNOWLEDGE AND AGREE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN; (II) UNDERSTAND ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN; (III) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN AND THE TERMS AND CONDITIONS OF ALL ASSOCIATED ACCEPTED ORDERS AND/OR ACCEPTED TRIAL ORDERS; AND (IV) ACKNOWLEDGE ON BEHALF OF THE CUSTOMER THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS.
THESE TERMS TOGETHER WITH ALL ORDERS (AND TRIAL ORDERS) CONSTITUTE AN ENFORCEABLE AGREEMENT BY AND BETWEEN YOU AND CLEEKS CLOUD.
The “Effective Date” of this Agreement is the date you click the “ACCEPT” button.
The terms below apply to the Trial Term and Standard Term.
The Services are made available on a subscription basis. Any renewal terms relating hereto shall be set forth in the relevant ordering portal, in the Order or by the generation of a new Order.
II. PRODUCTS AND SERVICES
As set forth in an Order, Cleeks Cloud or its authorized representatives, may provide one (1) or more of the following services (“Services”). These Terms (and any additional terms provided by Cleeks Cloud’s authorized representatives to you) and the Order govern your use of the Services.
a. Cleeks Cloud UDP Cloud Hybrid Backup Service or Cleeks Cloud UDP Cloud Hybrid Storage – cloud backup service provided by Cleeks Cloud to its customers to store & manage backup data in Cleeks Cloud’s data centers.
b. Cleeks Cloud UDP Cloud Hybrid Disaster Recovery Service or Cleeks Cloud UDP Cloud Hybrid Compute – disaster recovery as a service provided by Cleeks Cloud to its customers to store & manage backup data in Cleeks Cloud’s datacenters for specific customer systems and to run such systems within a virtual private cloud in Cleeks Cloud’s datacenters in the case of a disaster until such systems and data is restored in the customer location.
c. Cleeks Cloud UDP Cloud Portal – the portal provided to manage and use the Services.
d. Cleeks Cloud UDP Cloud Archiving – Managed Email Archiving Service – email archiving as a service provided by Cleeks Cloud to its customers to archive email messages and email attachments in Cleeks Cloud’s datacenters.
e. Cleeks Cloud UDP Cloud Archiving – Additional Service – optional ‘one-time’ service that offers Import and Export of Customer Data captured as part of Cleeks Cloud UDP Cloud Archiving. “Import” means Cleeks Cloud assisted migration service that imports email messages
(Customer Data) from the customer’s mail system into the Cleeks Cloud cloud-based archive store. “Export” means Cleeks Cloud assisted export service of all email messages (Customer Data) from the Cleeks Cloud cloud-based archive store.
f. Cleeks Cloud UDP Cloud Direct Backup as a Service or Cleeks Cloud UDP Cloud Direct Cloud Storage – cloud backup service provided by Cleeks Cloud to its customers to store & manage backup data in Cleeks Cloud’s datacenters this Agreement.
g. Cleeks Cloud UDP Cloud Direct Disaster Recovery as a Service or Cleeks Cloud UDP Cloud Direct Cloud Compute – disaster recovery as a service provided by Cleeks Cloud to its customers to store & manage backup data in Cleeks Cloud’s datacenters for specific customer systems and to run such systems within a virtual private cloud in Cleeks Cloud’s datacenters in the case of a disaster until such systems and data is restored in the customer location.
h. Cleeks Cloud UDP Cloud Direct Client Software – the software and related technology provided by Cleeks Cloud that enables Cleeks Cloud UDP Cloud Direct Backup as a Service and Cleeks Cloud UDP Cloud Direct Disaster Recovery as a Service Customers to send and/or access their Customer Data to and from Cleeks Cloud datacenter. The software includes, but is not limited to, all downloadable software (such as Cleeks Cloud UDP Cloud Direct Agent and Cleeks Cloud UDP Cloud Direct Virtual Appliance for VMware) and scripts and script interfaces.
III. DEFINITIONS
The capitalized terms used in this Agreement have the respective meanings specified in in this section III or in the provision where the term is first used and defined.
“Acceptable Use Policy” or “AUP” means the Cleeks Cloud Acceptable Use Policy located at https://cleekscloud.com which is hereby incorporated into this Agreement by this reference.
“Service Level Standards” means the Business Associate Agreement located at https://cleekscloud.com which is hereby incorporated into this Agreement by this reference.
“Customer Data” means any and all data provided by you to Cleeks Cloud pursuant to Customer’s use of the Services, including but not limited to third party data, email messages, email attachments, PII and associated metadata.
“Data Processing” means the Data Processing located at https://cleekscloud.com which is hereby incorporated into this Agreement by this reference.
“Fees” means the charges for the Services as set forth in an Order (including, but not limited to, any additional usage charges as described in the Order).
“Hosted System” means an information system (including, software, hardware and networking elements) maintained by Cleeks Cloud for certain of Cleeks Cloud’s customers (including, but not limited to, you).
“Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Laws” means federal, national, state, provincial, municipal and local laws, regulations, rules, judicial decrees, decisions and judgments in every jurisdiction applicable to Customer, Cleeks Cloud, the subject matter of this Agreement and/or the Services contemplated hereunder.
“Order” means the documentation between you and Cleeks Cloud and/or Cleeks Cloud’s authorized representatives definitively establishing (i) the Service/s which you are permitted to use, (ii) the Fee (including the manner and timing of payment of the Fee) for such Services, and (iii) the Standard Term. An Order must be accepted by Cleeks Cloud. The Order may consist of one or more documents, and the documents may be in printed or electronic format.
“Personally Identifiable Information” or “PII” means: (i) a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as a combination of the individual’s name, address or phone number with the individual’s social security number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “non-public personal information” as that term is defined in the Gramm -Leach-Bliley Act or (iii) “protected health information” as defined in the Health Insurance Portability and Accountability Act.
“Privacy Policy” means the Cleeks Cloud Privacy Policy available at https://cleekscloud.com which is hereby incorporated into this Agreement by reference.
“Security Obligations” means: (i) providing unique access credentials for each customer; (ii) encrypting all Customer Data transmitted between the Customer and the Services; and (iii) controlling and monitoring physical access to the sensitive areas of Cleeks Cloud’s facility where Customer Data is stored.
“Service Level Standards” means the service levels (applicable only during the Standard Term and solely with respect to the Services) located at https://cleekscloud.com which are hereby incorporated into this Agreement by this reference.
“Site” means the Internet website located at www.cleekscloud.com (or any successor or replacement thereto).
“Standard Term” means the period during which you are authorized to use the Services as specified in an Order.
“Support Terms” means the support terms for the Services applicable during the Standard Term located at https://cleekscloud.com which are hereby incorporated into this Agreement by this reference.
CLEEKS CLOUD – TERMS OF SERVICE 2019 (admin@cleekscloud.com)
“Support” means the support services provided by Cleeks Cloud for the Services during the Standard Term the pursuant to the Support Terms.
“Trial Term” means the period during which Cleeks Cloud may allow you to use certain Services without charge which may be specified in an Order or may be as otherwise determined by Cleeks Cloud in its sole discretion.
IV. OBLIGATIONS AND GRANTS
Subject to an Order for Services, the following obligations and grants will apply:
a. During any Trial Term, Cleeks Cloud will use commercially reasonable efforts to provide the Services.
b. During any Standard Term, Cleeks Cloud will use commercially reasonable efforts to: (i) provide the Services and the Support; and (ii) meet the Service Level Standards.
Subject to the terms and conditions of this Agreement and during the Standard Term and/or Trial Term, Cleeks Cloud grants to you a non-exclusive, non-sublicensable, revocable and limited right to: (i) use the Services solely for your internal purposes; (ii) make one copy of any materials provided by Cleeks Cloud relating to the Services for backup purposes; and (iii) download (from the Site) and use the Cleeks Cloud UDP Cloud Direct Client Software solely for use with the Services. You agree that you shall not: (i) make or permit the making of any modifications, additions or enhancements to Cleeks Cloud UDP Cloud Direct Client Software, or (ii) cause or permit the disassembly, de-compilation or reverse engineering of Cleeks Cloud UDP Cloud Direct Client Software.
V. GENERAL
a. You must use reasonable security precautions in connection with your use of the Services. You must comply with the Laws with respect to your use of the Services and with the Acceptable Use Policy. You must cooperate with Cleeks Cloud’s reasonable investigation of Service downtime/outages, security problems and any suspected breach of this Agreement.
b. If (i) your use of any Service requires any license to use Cleeks Cloud’s proprietary software, and (ii) you have not otherwise agreed to Cleeks Cloud’s form of EULA, your acceptance of this Agreement is also acceptance of the EULA.
VI. CUSTOMER DATA
Customer hereby grants Cleeks Cloud a license to use, operate, copy, transmit, distribute, store and cache Customer Data solely to provide the Services to Customer. You represent and warrant that:
(i) Customer has all necessary rights to grant the foregoing license to Customer Data and that Cleeks Cloud’s exercise of such rights shall not violate the rights of any third party or any applicable Laws;
(ii) all Customer Data about individuals has been collected in accordance with Customer’s privacy guidelines and applicable Laws and that Customer’s privacy guidelines comply with all applicable Laws;
(iii) Customer has obtained all consents required by the applicable Laws to transfer all of the Customer Data to Cleeks Cloud for storage by Cleeks Cloud within the United States; (iv) all of your registration and account information is true, accurate and complete; and (v) you will maintain the security of your password.
Notwithstanding any terms to the contrary in this Agreement, Cleeks Cloud may disclose Customer Data:
(i) as required by any applicable Laws; or (ii) in response to a subpoena
VII. HIPAA
You and Cleeks Cloud each represents and warrants that it is compliant with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and Customer represents and warrants that neither its acts nor omissions will adversely affect Cleeks Cloud’s compliance with HIPAA. Each party is bound by the terms and conditions of the BAA as to Customer Data that is Protected Health Information, as such term is defined by HIPAA and in the BAA.
VIII. GDPR
If any of the Services, in whole or in part, are or may be subject to the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”), Cleeks Cloud and Customer agree: (i) to be governed by the terms of the EU-US Privacy Shield Framework, as set forth and amended from time to time by the United States Department of Commerce, and the certification issued to Cleeks Cloud in connection therewith, found at https://www.privacyshield.gov/; (ii) that the Services are governed by the terms of Cleeks Cloud’s EU-US Privacy Shield Policy (internal and external), found at https://www.privacyshield.gov/list; and (iii) that the Services are bound by the Data Protection Agreement.
IX. OWNERSHIP
As between the parties, you own all right, title and interest in and to the Customer Data and any and all Intellectual Property Rights embodied therein. As between the parties and subject to the grants in this Agreement, Cleeks Cloud owns all right, title and interest in and to: (i) the Services, the Cleeks Cloud UDP Cloud Direct Client Software, and any other software provided by Cleeks Cloud for your use of the Services; (ii) the Hosted System; (iii) any work product developed by Cleeks Cloud as a result of the performance of the Services and/or the Support; and (iv) any and all Intellectual Property Rights embodied therein.
X. PAYMENT OBLIGATIONS
a. You agree to pay the Fees set forth in the Order(s) or otherwise agreed upon by Cleeks Cloud in accordance with the terms set forth herein, in such Order(s) or as otherwise agreed upon by Cleeks Cloud (the “Fees”). The provision of each Service (and the Support) may be suspended or discontinued by Cleeks Cloud in its discretion for non-payment of the Fees in full, when due.
b. For auto-renewal Orders, to cancel your subscription to prevent automatic renewal, you must send a cancellation notice by email to admin@cleekscloud.com. Cancellation will become effective at the end of the then-current Standard Term.
c. Unless an Order provides otherwise, all payments must be made in South African ZAR and are due upon demand. Interest on any late payments will accrue at the rate of 2.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until finally paid. Further, Cleeks Cloud may collect Fees owed using other collection mechanisms (including, but not limited to, charging other payment methods on file with Cleeks Cloud or retaining collection agencies and legal counsel).
d. All Fees required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Cleeks Cloud’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government. If any federal, state, local or foreign government applies taxes to the Services that Cleeks Cloud is required to remit to the applicable taxing authority.
XI. CONFIDENTIALITY AND PUBLICITY
a. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) which the Receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the Services, the components of the business plans, financial plans, know-how, customer information, strategies and other similar information. The Receiving Party will, during the term of this Agreement, and thereafter maintain in confidence the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted herein. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving
Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. Any Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. Subject to the terms and conditions of this Agreement, the Receiving Party (i) will not reproduce Confidential Information disclosed by the Disclosing Party, in any form, except as required to accomplish the Receiving Party’s obligations under this Agreement and (ii) will only disclose Confidential Information disclosed by the Disclosing Party to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such directors, officers, employees and/or consultants have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving
Party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation.
XII. PUBLICITY
Customer acknowledges and agrees that Cleeks Cloud may use, publish and display Customer’s name and logo on the Site and publicly available printed materials identifying Customer as a customer of Cleeks Cloud.
XIII. DISCLAIMER
Cleeks Cloud is not responsible to you for unauthorized access to Customer Data or the unauthorized use of the Services (unless the unauthorized access or use results from Cleeks Cloud’s material failure to meet the Security Obligations (which solely apply to Services)). You are responsible for: (i) the use of the Services by any employee of yours or any person to whom you have given access to the Services; and (ii) any person who gains access to Customer Data or the Services as a result of your failure to use reasonable security precautions (even if such use was not authorized by you).
EXCEPT FOR THE SERVICE LEVEL STANDARDS (WHICH ONLY APPLY DURING THE STANDARD TERM AND SOLELY WITH RESPECT TO (i) CLEEKS CLOUD UDP CLOUD DIRECT BACKUP AS A SERVICES AND DISASTER RECOVERY AS A SERVICE, (ii) CLEEKS CLOUD UDP CLOUD HYBRID BACKUP AS A SERVICE AND DISASTER RECOVERY AS A SERVICE, AND
(iii) CLEEKS CLOUD UDP CLOUD ARCHIVING. CLEEKS CLOUD AND ITS SUPPLIERS PROVIDE EACH
SERVICE AND THE SUPPORT “AS IS” ON AN “AS AVAILABLE” BASIS WITHOUT ANY
REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. CLEEKS CLOUD AND ITS SUPPLIERS DO NOT WARRANT THAT ANY OF THE SERVICES OR THE SUPPORT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. CUSTOMER ACKNOWLEDGES AND AGREES THAT: (I) THE SERVICES MAY INCLUDE ACCESS TO AND USE OF THE CLEEKS CLOUD UDP CLOUD PORTAL MADE AVAILABLE TO CUSTOMER BY CLEEKS CLOUD FOR USE DURING THE TERM OF THESE TERMS; (II) THE SERVICES MAY REQUIRE ACCESS TO AND USE OF THE INTERNET; (III) CLEEKS CLOUD DOES NOT HAVE RESPONSIBILITY FOR OPERATING OR MAINTAINING CUSTOMER SERVERS AND CUSTOMER’S CONNECTION TO THE INTERNET TO ACCESS AND UTILIZE THE SERVICES; AND (IV) THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER DATA. CLEEKS CLOUD AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES AND THE SUPPORT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CLEEKS CLOUD KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND
(C) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO WARRANTIES. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE
XIV. CHANGES TO ACCEPTABLE USE POLICY
We may change the Acceptable Use Policy to add restrictions on use of the Services, provided that the changes are reasonable and consistent with hosting industry norms. If a change materially impacts Customer’s existing use of the Services (in an adverse manner), Customer may terminate this Agreement without penalty in accordance with the terms of the Term and Termination provision. If we make a change to the Acceptable Use Policy, we will publish a revised version of the Acceptable Use Policy on the Site and Customer agrees that publishing such revised Acceptable Use Policy shall constitute sufficient notice.
XVI. INDEMNIFICATION
Customer, at its sole expense, will defend, indemnify and hold Cleeks Cloud and its directors, officers, employees, contractors, agents, distributors, resellers, successors and assigns (“Cleeks Cloud Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) resulting from any third party claim, suit, action, or proceeding (“Claim”) against an Cleeks Cloud Indemnitee, whether successful or not, resulting from or arising in connection with: (i) any gross negligence or willful misconduct by Customer; (ii) any breach by Customer of this Agreement (including, but not limited to, any breach by Customer of its representation or warranties); or (iii) Customer Data (or any portion thereof). Cleeks Cloud, at its sole expense, will defend Customer and its directors, officers, employees, contractors, agents, successors and assigns (“Customer Indemnitees”) harmless from and against any and all Claims, and indemnify and hold Customer harmless from damages awarded or paid in settlement of such Claims, (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements incurred in defense thereof) resulting from any Claim against a Customer Indemnitee, whether successful or not, resulting from or arising in connection with: (a) any gross negligence or wilful misconduct by Cleeks Cloud;
or (b) any material failure by Cleeks Cloud to maintain the Security Obligations. The indemnifying party’s indemnification obligations under this section are conditioned upon the indemnified party: (x) giving prompt notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim; (y) granting sole control of the defense and settlement of the Claim to the indemnifying party (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of or result in any ongoing liability to the indemnified party); and (z) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim. Notwithstanding any terms to the contrary in this Agreement, the failure to give notice to the indemnifying party within a reasonable time of the commencement of any Claim under this section will relieve the indemnifying party of any liability to the indemnified party under this section, only to the extent that such failure materially prejudices the indemnifying party’s ability to defend such Claim.
XVII. LIMITATION OF LIABILITY
EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CUSTOMER’S INDEMNIFICATION OBLIGATIONS OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT WILL: (I) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SERVICES OR THE SUPPORT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICES OR THE SUPPORT SHALL NOT EXCEED IN THE AGGREGATE REGARDLESS OF THE NUMBER OF CLAIMS MADE DURING THE TERM THE AMOUNTS PAID AND PAYABLE BY CUSTOMER TO CLEEKS CLOUD OR CLEEKS CLOUD’S AUTHORIZED REPRESENTATIVE WITH RESPECT TO THE SERVICE INVOLVED IN THE CLAIM DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THESE TERMS: (A) THE SOLE AND 8 EXCLUSIVE REMEDY FOR ANY INABILITY TO ACCESS THE SERVICES OR OTHER FAILURE TO MEET ANY SERVICE LEVEL STANDARDS ARE THE SERVICE CREDITS PROVIDED UNDER THE SERVICE LEVEL AGREEMENT UNLESS SUCH FAILURE IS DUE TO CLEEKS CLOUD’S WILLFUL MISCONDUCT; (B) CLEEKS CLOUD WILL NOT BE LIABLE FOR ANY LOSS OF CUSTOMER DATA; AND (C) THE LIMITATIONS IN THIS LIMITATION OF LIABILITY PROVISION WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS PROVIDED, HOWEVER, THAT A PARTY’S AGGREGATE LIABILITY WITH RESPECT TO SUCH INDEMNIFICATION OBLIGATIONS WILL NOT EXCEED THREE TIMES THE AMOUNT PAID BY CUSTOMER TO CLEEKS CLOUD DURING THE 12 MONTH PERIOD PRIOR TO THE ACCRUAL OF THE FIRST CLAIM. MULTIPLE CLAIMS OF A SIMILAR NATURE INVOLVING THE SAME SERVICE WILL NOT EXPAND THIS LIMITATION.
CLEEKS CLOUD – TERMS OF SERVICE 2019 (admin@cleekscloud.com)
NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THESE TERMS, CUSTOMER ACKNOWLEDGES AND AGREES THAT: (I) CLEEKS CLOUD MAY PROVIDE TO CUSTOMER THIRD PARTY SOFTWARE AND SERVICES; AND (II) CUSTOMER AGREES TO COMPLY WITH THE THIRD-PARTY TERMS AND LICENSES APPLICABLE TO SUCH THIRD-PARTY SOFTWARE AND SERVICES. CLEEKS CLOUD MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND TO CUSTOMER REGARDING SUCH THIRD-PARTY SOFTWARE AND SERVICES OR THAT SUCH TERMS OR CONDITIONS MAY NOT CHANGE OR BE ALTERED BY SUCH THIRD PARTIES AT ANY TIME.
XVIII. TERM, TERMINATION & SUSPENSION OF SERVICES
Trial Term – The term of this Agreement will be for the Trial Term (unless terminated as permitted in this Agreement). During the Trial Term, either party may terminate this Agreement for cause or no cause, with notice to the other party, and such termination will be effective immediately.
Standard Term – The term of this Agreement will be for the period set forth in the Order or as otherwise agreed upon by the parties (unless terminated as permitted in this Agreement). You will be charged for the Services as set forth in the Order or as otherwise agreed upon by the parties. Either party may terminate this Agreement and/or any Order: (i) as set forth in the Order: (ii) if the other party breaches any material provision of this Agreement for any reason, which breach has not been cured within thirty (30) days of written notice (except for Customer’s payment obligations shall be cured promptly, but no more than fifteen (15) days, upon notice); or (iii) the other party becomes subject of a voluntary or involuntary petition in bankruptcy, or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, which is not dismissed within sixty
(60) days after commencement. Cleeks Cloud may terminate this Agreement for convenience upon thirty
(30) days’ advance written notice; provided that if Cleeks Cloud terminates this Agreement for convenience, it shall refund a pro rata amount of any prepaid fees for the terminated portion of the then-current Standard Term. Notwithstanding any terms to the contrary in this Agreement: (i) failure to meet any Service Level Standard does not constitute a breach of this Agreement (or any portion thereof); and (ii) Customer will be responsible for all Fees incurred up to the effective date of termination.
During the Trial Term or the Standard Term, Cleeks Cloud may suspend Services (or any portion thereof) without liability if: (i) Cleeks Cloud reasonably believes that the Services are being used in violation of this Agreement; (ii) there is an attack on the Hosted System or the Hosted System is accessed or manipulated by a third party without Customer’s or Cleeks Cloud’s consent; (iii) Cleeks Cloud is required by any Law(s) to suspend the Services; or (iv) Cleeks Cloud reasonably believes that the suspension of the Services is required.
XIX. EFFECTS OF TERMINATION
Upon any termination or expiration of this Agreement: (i) Customer must immediately pay all Fees (if applicable) accrued up to the effective date of termination or expiration of this Agreement (whichever is applicable); and (ii) all applicable licenses granted to Customer under this Agreement will immediately cease; provided that licenses granted to Cleeks Cloud with respect to Customer Data shall survive for the duration as provided below. No refunds will be issued except as otherwise expressly set forth in this Agreement.
Provisions which, by their terms, are to survive expiration or termination of this Agreement, and the following sections will survive any expiration or termination of this Agreement – Products and Services, Additional Definitions, Customer Data (other than the licenses granted to Cleeks Cloud), Ownership, Payment Obligations, Confidentiality and Publicity, Disclaimer, Indemnification, Limitation of Liability, Effects of Termination, Transition Services and Miscellaneous.
If you do not elect to use any Service at the end of the Trial Term, Cleeks Cloud may (but, is not obligated to) delete all Customer Data after the close of the Trial Term.
XX. TRANSITION SERVICES
In the event of termination of this Agreement for any reason during the Standard Term, Cleeks Cloud will:
(i) make not less than a commercially reasonable effort to provide Customer access to all Customer Data stored on the Cleeks Cloud equipment for up to 30 days (or such longer period as mutually agreed to by the parties, and unless specifically requested to delete Customer Data sooner); and (ii) use commercially reasonable efforts to transfer, at Customer’s sole expense, such Customer Data to Customer or Customer’s designated service provider. Notwithstanding any terms to the contrary in this Agreement, after such period, Cleeks Cloud will have the right (but not the obligation) to destroy all such Customer Data.
Notwithstanding any terms to the contrary in this Agreement, if Cleeks Cloud receives a notice from Customer requesting the deletion of Customer Data during the Trial Term or the Standard Term, Cleeks Cloud will use commercially reasonable efforts to promptly delete such Customer Data.
XXI. MISCELLANEOUS
a. Entire Agreement. These Terms (together with all Orders and any other documents linked to this Agreement) are the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. In the event of a conflict between the terms and conditions of an Order and the terms and conditions of this Agreement, the terms and conditions of this Agreement will govern. This Agreement shall not be superseded by any purchase order and the terms of any Customer purchase order or like document shall not have any force or effect.
Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of South Africa applicable to agreements made and to be entirely performed within the South Africa, without resort to its conflict of law provisions. In the event of any dispute between you and Cleeks Cloud, the parties shall first use reasonable efforts to settle the dispute through consultation and negotiation in good faith between you and an authorized member of Cleeks Cloud and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither you nor Cleeks Cloud shall file or pursue any disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations. The parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the courts located in South Africa, and the parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.
c. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer without the prior written consent of Cleeks Cloud, and any attempted transfer, assignment or delegation without such consent will be void and without effect; provided, however, that Customer may assign or transfer this Agreement in their entirety pursuant to a merger or other corporate reorganization or the CLEEKS CLOUD – TERMS OF SERVICE 2019 (admin@cleekscloud.com)
sale of substantially all of Customer’s assets, in which case Customer shall provide notice to Cleeks Cloud of such assignment or transfer promptly following the same. Cleeks Cloud may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
d. Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
e. Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by Cleeks Cloud to link its servers to the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any acts of any third party (each a “Force Majeure Event”). In the event of any such delay the date of delivery will be deferred for a period equal to the time lost by reason of the delay.
f. Electronic Communications. Notwithstanding any terms to the contrary in this Agreement, Cleeks Cloud may choose to electronically deliver all communications with you, which may include: (i) email to your email address indicated in your communications with Cleeks Cloud or upon registration with the Site; or (ii) posting messages that are displayed to you when you log in to or access the Site. Cleeks Cloud’s electronic communications to you may transmit or convey information about action taken on your request, portions of your request that may be incomplete or require additional explanation, any notices required under applicable law and any other notices. You agree to do business electronically with Cleeks Cloud, and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.
g. No Modification. Other than modifications to the Acceptable Use Policy as provided above and modifications and updates to this Agreement accepted by customer electronically or in writing, no other modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless agreed upon in writing by the parties.
h. Waivers. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.
ACCEPTABLE USE POLICY
Cleeks Cloud (Pty) Ltd (“Cleeks Cloud”) has adopted this Acceptable Use Policy (“AUP”). This AUP describes certain acceptable and unacceptable uses of the services provided by Cleeks Cloud (Pty) Ltd (the “Services”). You are responsible for knowing and abiding by this AUP. YOUR FAILURE TO COMPLY WITH ANY OF THE RULES SET FORTH IN THIS AUP MAY RESULT, AMONG OTHER THINGS, IN THE TERMINATION OF YOUR RIGHT TO USE THE SERVICES AND THE DELETION OF ANY INFORMATION, DATA, OR CONTENT ASSOCIATED WITH THE SERVICES WITH OR WITHOUT FURTHER NOTICE, AS DETERMINED BY CLEEKS CLOUD (PTY) LTD IN ITS SOLE DISCRETION.
This AUP is subject to change by Cleeks Cloud (Pty) Ltd at any time by posting an updated acceptable use policy on the website https://cleekscloud.com. Cleeks Cloud (Pty) Ltd will indicate at the bottom of this AUP the date such document was last updated, and any changes will be effective immediately upon posting of the revisions on the Site.
General Requirements
You must have accurate, current and complete registration information on file with Cleeks Cloud
Acceptable Use
Your use of the Services must, at all times, be in accordance with all applicable local, state, federal or international laws, regulations, rules, orders and other requirements, now or hereafter in effect.
Unacceptable Use
Third-Party Rights and Content – In using the Services, you may not:
• store any messages, text, materials, data, information, software, audio, art, images, photos, video, graphics, or other items or materials (“Content”) that infringes upon or violates the copyright, trademark, patent, trade secret, publicity, privacy or other rights of any third party;
• attempt to circumvent any content filtering techniques Cleeks Cloud (Pty) Ltd may employ; or
• attempt to defeat or assist others in defeating any technical copyright protections.
Inappropriate Content – In using the Services, you may not store any Content that:
• is obscene, pornographic, indecent or sexually explicit or that constitutes, fosters or promotes pornography or bestiality;
• depicts graphic, excessive or gratuitous violence; or
• is derogatory, demeaning, inflammatory, malicious, defamatory, abusive, offensive or hateful.
Unlawful, Harmful or Prohibited Content or Conduct – In using the Services, you may not:
• violate any applicable local, state, federal or international laws, regulations, rules, orders and other requirements, now or hereafter in effect;
• store any material that is illegal or fraudulent or that would encourage, solicit, foster, glorify or provide instructions for a criminal or civil offense including, but not limited to, material that promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking, or that any United States or foreign governmental entity considers to be confidential information of a national security interest or similar concern;
• store any material that contains software viruses, corrupted data or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
CLEEKS CLOUD – ACCEPTABLE USAGE POLICY 2019 (admin@cleekscloud.com)
• attempt to probe, scan, penetrate or test the vulnerability of a Cleeks Cloud system or network;
• attempt to gain unauthorized access to or use of Cleeks Cloud’s data or the data of Cleeks Cloud’s customers;
• cause any breach of Cleeks Cloud’s security or authentication measures;
• attempt to use or access another user’s account without authorization or create a user account under false or fraudulent pretenses; or
• engage in any conduct that is likely to result in retaliation against Cleeks Cloud (Pty) Ltd or its employees, officers or other agents including, but not limited to, engaging in behavior that results in any server being the target of a denial of service attack.
No credits will be available under any service level standards provided by Cleeks Cloud (Pty) Ltd for interruptions of any Services resulting from AUP violations.
If you believe there is a violation of this AUP and would like to report it to Cleeks Cloud (Pty) Ltd, please direct the information to admin@cleekscloud.com
DATA PROCESSING AGREEMENT
FOR CLEEKS CLOUD SERVICES
1. Scope, Order of Precedence and Term
1.1. This data processing agreement (the “Data Processing Agreement”) applies to
Cleeks Cloud’s Processing of Personal Data as part of Cleeks Cloud’s provision of Cleeks
Cloud Services (“Cloud Services”). The Cloud Services are described in (i) the applicable
order for Cloud Services, (ii) the applicable Agreement or other applicable master
agreement (including all exhibits thereto) by and between You and Cleeks Cloud in
which this Data Processing Agreement is referenced, (iii) Cleeks Cloud’s Acceptable Use
Policy and/or (iv) the definitive technical description of the Cloud Services provided by
Cleeks Cloud (i, ii, iii and iv collectively the “Cloud Services Agreement”).
1.2. Unless otherwise expressly stated in the order, this version of the Data Processing
Agreement is incorporated into and subject to the terms of the Cloud Services
Agreement and shall be effective and remain in force for so long as Cleeks Cloud
continues to provide any Cloud Services.
1.3. Except as expressly stated otherwise in this Data Processing Agreement or the order,
in the event of any conflict between the terms of the Cloud Services Agreement,
including any policies or schedules referenced therein, and the terms of this Data
Processing Agreement, the relevant terms of this Data Processing Agreement shall take
precedence.
2. Definitions
2.1. “Applicable Data Protection Law” means (i) Directive 95/46/EC of October 24, 1995,
as amended, on the protection of individuals with regard to the Processing of Personal
Data and on the free movement of such data (‘Directive’) until such time that it is
replaced by Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and on the free movement of
such data, applicable as of May 25, 2018; and (ii) any other data privacy or data
protection law or regulation that applies to the Processing of Personal Data under this
Data Processing Agreement;
2.2. “You” means the customer entity that has executed the order;
2.3. “Data Subject”, “Data Protection Impact Assessments”, “Process/Processing”,
“Supervisory Authority”, “Controller”, “Processor” and” (or any of the equivalent terms)
have the meaning set forth under Applicable Data Protection Law;
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
2.4. “EU Model Clauses” means the standard contractual clauses annexed to the EU
Commission Decision 2010/87/EU of 5 February 2010 for the Transfer of Personal Data to
Processors established in Third Countries under the Directive 95/46/EC, or any successor
standard contractual clauses that may be adopted pursuant to an EU Commission
decision;
2.5. “Cleeks Cloud” means the Cleeks Cloud Affiliate that has executed the order;
2.6. “Cleeks Cloud Affiliate(s)” means the subsidiar(y)(ies) of Cleeks Cloud (Pty) Ltd that
may assist in the performance of the Cloud Services as set forth in Section 3.3;
2.7. “Personal Data” means any information relating to a Data Subject that Cleeks Cloud
may Process on Your behalf as part of the Cloud Services;
2.8 “Third Party Sub processor” means a third-party subcontractor, other than a Cleeks
Cloud Affiliate, engaged by Cleeks Cloud and which may Process Personal Data as set
forth in Section 3.3.
Other capitalized terms have the definitions provided for them in the Cloud Services Agreement
or as otherwise specified below.
3. Controller and Processor of Personal Data and Purpose of Processing
3.1. You are and will at all times remain the Controller of the Personal Data Processed by
Cleeks Cloud under the Cloud Services Agreement. You are responsible for compliance
with Your obligations as a Controller under Applicable Data Protection Law, in particular
for justification of any transmission of Personal Data to Cleeks Cloud (including providing
any required notices and obtaining any required consents and/or authorizations, or
otherwise securing an appropriate legal basis under Applicable Data Protection Law),
and for Your decisions and actions concerning the Processing of such Personal Data.
3.2. Cleeks Cloud is and will at all times remain a Processor regarding the Personal Data
provided by You to Cleeks Cloud under the Cloud Services Agreement. Cleeks Cloud is
responsible for compliance with its obligations under this Data Processing Agreement
and for compliance with its obligations as a Processor under Applicable Data Protections
Law.
3.3 Cleeks Cloud and any persons acting under the authority of Cleeks Cloud, including
any Cleeks Cloud Affiliates and Third Party Subprocessors as set forth in Section 8, will
Process Personal Data solely for the purpose of (i) providing the Cloud Services in
accordance with the Cloud Services Agreement and this Data Processing Agreement (ii)
complying with Your documented written instructions in accordance with Section 5, or
(iii) complying with Cleeks Cloud’s regulatory obligations in accordance with Section 13.
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
4. Categories of Personal Data and Data Subjects
4.1. In order to perform the Cloud Services and depending on the Cloud Services You
have ordered, Cleeks Cloud may Process some or all of the following categories of
Personal Data: personal contact information such as name, home address, home
telephone or mobile number, fax number, email address, and passwords; information
concerning family, lifestyle and social circumstances including age, date of birth, marital
status, number of children and name(s) of spouse and/or children; employment details
including employer name, job title and function, employment history, salary and other
benefits, job performance and other capabilities, education/qualification, identification
numbers, social security details and business contact details; financial details; goods and
services provided; unique IDs collected from mobile devices, network carriers or data
providers, IP addresses, and online behavior and interest data.
4.2. Categories of Data Subjects whose Personal Data may be Processed in order to
perform the Cloud Services may include, among others, Your representatives and end
users, such as Your employees, job applicants, contractors, collaborators, partners,
suppliers, customers and clients.
4.3 Additional categories of Personal Data and/or Data Subjects may be described in
the Cloud Services Agreement. Unless otherwise specified in Your order (including in the
Service Specifications), Your Content may not include any sensitive or special personal
data that imposes specific data security or data protection obligations on Cleeks Cloud
in addition to or different from those specified in the Service Specifications.
5. Your Instructions
5.1. Cleeks Cloud will Process Personal Data on Your written instructions as specified in
the Cloud Services Agreement and this Data Processing Agreement, including
instructions regarding data transfers as set forth in Section 7.
5.2. You may provide additional instructions in writing to Cleeks Cloud regarding
Processing of Personal Data in accordance with Applicable Data Protection Law. Cleeks
Cloud will comply with all such instructions to the extent necessary for Cleeks Cloud to (i)
comply with its Processor obligations under Applicable Data Protection Law; or (ii) assist
You to comply with Your Controller obligations under Applicable Data Protection Law
relevant to Your use of the Cloud Services, including assistance with notifying Personal
Data breaches as set forth in Section 11, Data Subject requests as set forth in Section 6,
and Data Protection Impact Assessments (DPIAs).
5.3. To the extent required by Applicable Data Protection Law, Cleeks Cloud will
immediately inform You if, in its opinion, your instruction infringes Applicable Data
Protection Law. You acknowledge and agree that Cleeks Cloud is not responsible for
performing legal research and/or for providing legal advice to You.
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
5.4. Without prejudice to Cleeks Cloud’s obligations under this Section 5, the parties will
negotiate in good faith with respect to any charges or fees that may be incurred by
Cleeks Cloud to comply with instructions with regard to the Processing of Personal Data
that require the use of resources different from or in addition to those required for the
provision of the Cloud Services.
6. Rights of Data Subjects
6.1. Cleeks Cloud will grant You electronic access to Your Cloud Services environment
that holds Personal Data to enable You to respond to requests from Data Subjects to
exercise their rights under Applicable Data Protection Law, including requests to access,
delete or erase, restrict, rectify, receive and transmit, block access to or object to
Processing of specific Personal Data or sets of Personal Data.
6.2. To the extent such electronic access is not available to You, You can submit an e-
mail to admin@cleekscloud.com or other applicable primary support tool provided for
the Services), and provide detailed written instructions to Cleeks Cloud (including the
Personal Data necessary to identify the Data Subject) on how to assist with such Data
Subject requests in relation to Personal Data held in Your Cloud Services environment.
Cleeks Cloud will promptly follow such instructions. If applicable, the parties will negotiate
in good faith with respect to any charges or fees that may be incurred by Cleeks Cloud
to comply with instructions that require the use of resources different from or in addition
to those required for the provision of the Cloud Services.
6.3. If Cleeks Cloud directly receives any Data Subject requests regarding Personal Data,
it will promptly pass on such requests to You without responding to the Data Subject if the
Data Subject identifies You as the Data Controller. If the Data Subject does not identify
You, Cleeks Cloud will instruct the Data Subject to contact the entity responsible for
collecting their Personal Data.
7. Personal Data Transfers
7.1. Personal Data held in Your Cloud Services environment will be hosted in the data
center region specified in the Cloud Services Agreement or otherwise selected by You.
Cleeks Cloud will not migrate Your Cloud Services environment to a different data center
region without Your prior written authorization.
7.2. Without prejudice to Section 7.1, Cleeks Cloud may access and Process Personal
Data on a global basis as necessary to perform the Cloud Services, including for IT
security purposes, maintenance and performance of the Cloud Services and related
infrastructure, Cloud Services technical support and Cloud Service change
management.
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
7.3. To the extent such global access involves a transfer of Personal Data originating from
the European Economic Area (“EEA”) or Switzerland to Cleeks Cloud Affiliates or Third
Party Subprocessors located in countries outside the EEA or Switzerland that have not
received a binding adequacy decision by the European Commission or by a competent
national EEA data protection authority, such transfers are subject to (i) the terms of the
EU Model Clauses incorporated into this Data Processing Agreement by reference; or
(ii) other binding and appropriate transfer mechanisms that provide an adequate level
of protection in compliance with Applicable Data Protection Law, such as approved
Binding Corporate Rules for Processors. For the purposes of the EU Model Clauses, You
and Cleeks Cloud agree that (i) You will act as the data exporter on Your own behalf
and on behalf of any of Your entities, (ii) Cleeks Cloud will act on its own behalf and/or
on behalf of the relevant Cleeks Cloud Affiliates as the data importers, (iii) any Third Party
Subprocessors will act as ‘subcontractors’ pursuant to Clause 11 of the EU Model Clauses.
7.4. To the extent such global access involves a transfer of Personal Data originating from
Argentina to Cleeks Cloud Affiliates or Third Party Subprocessors located in countries
outside Argentina that have not received a binding adequacy decision by the National
Directorate for Personal Data Protection, such transfers are subject to (i) the terms of the
Argentinean Model Clauses incorporated into this Data Processing Agreement by
reference; or (ii) other binding and appropriate transfer mechanisms that provide an
adequate level of protection in compliance with Applicable Data Protection Law.
7.5. Transfers of Personal Data originating from other locations globally to Cleeks Cloud
Affiliates or Third Party Sub processors are subject to the terms of the Cleeks Cloud EU-US
Privacy Shield Policy https://cleekscloud.com which requires all transfers of Personal
Data to be made in compliance with all applicable Cleeks Cloud security and data
privacy policies and standards; and (ii) for Third Party Subprocessors, the terms of the
relevant Cleeks Cloud Third Party Sub processor agreement incorporating security and
data privacy requirements consistent with the relevant requirements of this Data
Processing Agreement.
7.6. The terms of this Data Processing Agreement shall be read in conjunction with the EU
Model Clauses, and other applicable transfer mechanisms pursuant to this Section 7.
8. Cleeks Cloud Affiliates and Third Party Subprocessors
8.1. Subject to the terms and restrictions specified in Sections 3.3, 7 and 8, You agree that
Cleeks Cloud may engage Cleeks Cloud Affiliates and Third Party Subprocessors to assist
in the performance of the Cloud Services.
8.2. Cleeks Cloud will, in response to Your request, advise you as to Third Party
Subprocessors or Cleeks Cloud Affiliates that may Process Personal Data.
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
8.3. Within fourteen (14) calendar days of Cleeks Cloud providing such notice to You,
You may object to the intended involvement of a Third Party Sub processor or Cleeks
Cloud Affiliate in the performance of the Cloud Services, providing objective justifiable
grounds related to the ability of such Third Party Sub processor or Cleeks Cloud Affiliate to
adequately protect Personal Data in accordance with this Data Processing Agreement
or Applicable Data Protection Law in writing by submitting a “service request” via My
Cleeks Cloud Support, or other applicable primary support tool provided for the Services.
In the event Your objection is justified, You and Cleeks Cloud will work together in good
faith to find a mutually acceptable resolution to address such objection, including but
not limited to reviewing additional documentation supporting the Third Party Sub
processors’ or Cleeks Cloud Affiliate’s compliance with this Data Processing Agreement
or Applicable Data Protection Law, or delivering the Cloud Services without the
involvement of such Third Party Subprocessor. To the extent You and Cleeks Cloud do not
reach a mutually acceptable resolution within a reasonable timeframe, You shall have
the right to terminate the relevant Cloud Services (i) upon serving prior notice in
accordance with the terms of the Cloud Services Agreement; (ii) without liability to You
and Cleeks Cloud and (iii) without relieving You from Your payment obligations under the
Cloud Services Agreement up to the date of termination. If the termination in
accordance with this Section 8.3 only pertains to a portion of Cloud Services under an
order, you will enter into an amendment or replacement order to reflect such partial
termination.
8.4. The Cleeks Cloud Affiliates and Third Party Subprocessors are required to abide by
the same level of data protection and security as Cleeks Cloud under this Data
Processing Agreement as applicable to their Processing of Personal Data. You may
request that Cleeks Cloud audit a Third Party Subprocessor or provide confirmation that
such an audit has occurred (or, where available, obtain or assist customer in obtaining a
third-party audit report concerning the Third Party Subprocessor’s operations) to verify
compliance with such obligations. You will also be entitled, upon written request, to
receive copies of the relevant privacy and security terms of Cleeks Cloud’s agreement
with any Third-Party Sub processors and Cleeks Cloud Affiliates that may Process Personal
Data.
8.5. Cleeks Cloud remains responsible at all times for the performance of the Cleeks
Cloud Affiliates’ and Third Party Subprocessors’ obligations in compliance with the terms
of this Data Processing Agreement and Applicable Data Protection Law.
9. Technical and Organizational Measures, and Confidentiality of Processing
9.1. Cleeks Cloud has implemented and will maintain appropriate technical and
organizational security measures for the Processing of Personal Data. These measures
consider the nature, scope and purposes of Processing as specified in this Data
Processing Agreement, and are intended to protect Personal Data against the risks
inherent to the Processing of Personal Data in the performance of the Cloud Services,
risks from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of,
or access to Personal Data transmitted, stored or otherwise Processed.
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
9.2. Cleeks Cloud has implemented the physical access, system access, data access,
transmission and encryption, input, data backup, data segregation and security
oversight, enforcement and other security controls and measures specified in the Service
Specifications.
You are advised to carefully review the applicable Service Specifications to understand
which specific security measures and practices apply to the particular Cl oud Services
ordered by You, and to ensure that these measures and practices are appropriate for
the Processing of Personal Data pursuant to this Data Processing Agreement.
9.3. All Cleeks Cloud and Cleeks Cloud Affiliate staff, as well as any Third Party
Subprocessors that may have access to Personal Data are subject to appropriate
confidentiality arrangements.
10. Audit Rights and Cooperation with You and Your Supervisory Authorities
10.1. You may audit Cleeks Cloud’s compliance with its obligations under this Data
Processing Agreement up to once per year. In addition, to the extent required by
Applicable Data Protection Law, including where mandated by Your Supervisory
Authority, You or Your Supervisory Authority may perform more frequent audits, including
inspections of the Cloud Service data center facility that Processes Personal Data. Cleeks
Cloud will contribute to such audits by providing You or Your Supervisory Authority with
the information and assistance reasonably necessary to conduct the audit, including any
relevant records of Processing activities applicable to the Cloud Services ordered by
You.
10.2. If a third party is to conduct the audit, the third party must be mutually agreed to by
You and Cleeks Cloud (except if such Third Party is a competent Supervisory Authority).
Cleeks Cloud will not unreasonably withhold its consent to a third-party auditor requested
by You. The third party must execute a written confidentiality agreement acceptable to
Cleeks Cloud or otherwise be bound by a statutory confidentiality obligation before
conducting the audit.
10.3. To request an audit, you must submit a detailed proposed audit plan to Cleeks
Cloud at least two weeks in advance of the proposed audit date. The proposed audit
plan must describe the proposed scope, duration, and start date of the audit. Cleeks
Cloud will review the proposed audit plan and provide You with any concerns or
questions (for example, any request for information that could compromise Cleeks Cloud
security, privacy, employment or other relevant policies). Cleeks Cloud will work
cooperatively with You to agree on a final audit plan.
10.4. If the requested audit scope is addressed in a SSAE 16/ISAE 3402 Type 2, ISO, NIST,
PCI DSS, HIPAA or similar audit report issued by a qualified third party auditor within the
prior twelve months and Cleeks Cloud provides such report to You confirming there are
no known material changes in the controls audited, You agree to accept the findings
presented in the third party audit report in lieu of requesting an audit of the same
controls covered by the report.
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
10.5. The audit must be conducted during regular business hours at the applicable
facility, subject to the agreed final audit plan and Cleeks Cloud’s health and safety or
other relevant policies and may not unreasonably interfere with Cleeks Cloud business
activities.
10.6. You will provide Cleeks Cloud any audit reports generated in connection with any
audit under this Section 10, unless prohibited by Applicable Data Protection Law or
otherwise instructed by a Supervisory Authority. You may use the audit reports only for
the purposes of meeting Your regulatory audit requirements and/or confirming
compliance with the requirements of this Data Processing Agreement. The audit reports
are Confidential Information of the parties under the terms of the Cloud Services
Agreement.
10.7. Any audits are at Your expense. The parties will negotiate in good faith with respect
to any charges or fees that may be incurred by Cleeks Cloud to aid with an audit that
requires the use of resources different from or in addition to those required for the
provision of the Cloud Services.
11. Incident Management and Personal Data Breach Notification
11.1. Cleeks Cloud promptly evaluates and responds to incidents that create suspicion of
or indicate unauthorized access to or Processing of Personal Data (“Incident”). All Cleeks
Cloud and Cleeks Cloud Affiliates staff that have access to or Process Personal Data are
instructed on responding to Incidents, including prompt internal reporting, escalation
procedures, and chain of custody practices to secure relevant evidence. Cleeks Cloud’s
agreements with Third Party Subprocessors, contain similar Incident reporting obligations.
11.2. In order to address an Incident, Cleeks Cloud defines escalation paths and
response teams involving internal functions such as Information Security and Legal. The
goal of Cleeks Cloud’s Incident response will be to restore the confidentiality, integrity,
and availability of the Cloud Services environment and the Personal Data that may be
contained therein, and to establish root causes and remediation steps. Depending on
the nature and scope of the Incident, Cleeks Cloud may also involve and work with You
and outside law enforcement to respond to the Incident.
11.3. To the extent Cleeks Cloud becomes aware and determines that an Incident
qualifies as a breach of security leading to the misappropriation or accidental or
unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal
Data transmitted, stored or otherwise Processed on Cleeks Cloud systems or the Cloud
Services environment that compromises the security, confidentiality or integrity of such
Personal Data (“Personal Data Breach”), Cleeks Cloud will inform You of such Personal
Data Breach without undue delay but at the latest within 72 hours.
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
11.4. Cleeks Cloud will take reasonable measures designed to identify the root cause(s)
of the Personal Data Breach, mitigate any possible adverse effects and prevent a
recurrence. As information regarding the Personal Data Breach is collected or otherwise
reasonably becomes available to Cleeks Cloud and to the extent permitted by law,
Cleeks Cloud will provide You with (i) a description of the nature and reasonably
anticipated consequences of the Personal Data Breach; (ii) the measures taken to
mitigate any possible adverse effects and prevent a recurrence; (iii) where possible, the
categories of Personal Data and Data Subjects including an approximate number of
Personal Data records and Data Subjects that were the subject of the Personal Data
Breach; and (iv) other information concerning the Personal Data Breach reasonably
known or available to Cleeks Cloud that You may be required to disclose to a
Supervisory Authority or affected Data Subject(s).
11.5. Unless otherwise required under Applicable Data Protection Law, the parties agree
to coordinate in good faith on developing the content of any related public statements
or any required notices for the affected Data Subjects and/or notices to the relevant
Supervisory Authorities.
12. Return and Deletion of Personal Data upon Termination of Cloud Services
12.1. Following termination of the Cloud Services, Cleeks Cloud will return or otherwise
make available for retrieval Your Personal Data then available in Your Cloud Services
environment, unless otherwise expressly stated in the Service Specifications. For Cloud
Services for which no data retrieval functionality is provided by Cleeks Cloud as part of
the Cloud Services, you are advised to take appropriate action to back up or otherwise
store separately any Personal Data while the production Cloud Services environment is
still active prior to termination.
12.2. Upon termination of the Cloud Services or upon expiry of the retrieval period
following termination of the Cloud Services (if available), Cleeks Cloud will promptly
delete all copies of Personal Data from the Cloud Services environment by rendering
such Personal Data unrecoverable, except as may be required by law. Data deletion
capabilities of the parties are described in more detail in the Service Specifications.
13. Legally Required Disclosure Requests
13.1. If Cleeks Cloud receives any subpoena, judicial, administrative or arbitral order of
an executive or administrative agency, regulatory agency, or other governmental
authority which relates to the Processing of Personal Data (“Disclosure Request”), it will
promptly pass on such Disclosure Request to You without responding to it, unless
otherwise required by applicable law (including to provide an acknowledgement of
receipt to the authority that made the Disclosure Request).
13.2. At Your request, Cleeks Cloud will provide You with reasonable information in its
possession that may be responsive to the Disclosure Request and any assistance
reasonably required for You to respond to the Disclosure Request in a timely manner.
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
14. Compliance Team
14.1. Cleeks Cloud has created a compliance team which can be contacted at
admin@cleekscloud.com .
14.2. If You have appointed a Data Protection Officer, You may request Cleeks Cloud to
include the contact details of Your Data Protection Officer in the order, or may
subsequently communicate the relevant contact details to Cleeks Cloud at
admin@cleekscloud.com .
CLEEKS CLOUD – DATA PROCESSING 2019 (admin@cleekscloud.com)
SERVICE LEVEL STANDARD
The following outlines the Service Level Standards offered by Cleeks Cloud to Customer:
Service Levels
Cleeks Cloud will use commercially reasonable efforts to make the Services available 99.9% or
more of the time during any monthly service period. If we fail to achieve this for any customer or
group of customers, impacted customers are eligible to receive Service Credits (as defined below)
that will be applied as a Service Credit against their account. The actual Service Credits increase
based on the amount of aggregate outage as set forth below.
Subject to the exclusions set forth below, an outage will be defined as any time where the Cleeks
Cloud Services are not available for read and restore use by Customer due to a cause within the
control of Cleeks Cloud.
Service Credits
“Service Credits”: (i) are non-transferable; (ii) will be issued in the contracted billing schedule; (iii)
may only be used against the next billing cycle; and (iv) are issued according to the table below.
Service Credit (% of monthly billing in month where outage
Service Availability occurred)
Less than 99.9% 10%
Less than 99.0% 25%
Exclusions
Service Level Standards only apply to unplanned outages. Cleeks Cloud does not include in its
calculation of downtime any time the system is offline (and Services are not provided) due to:
• Planned maintenance windows where notice of planned unavailability has been
given at least 2 business days prior to the outage, unless in the case of emergency
changes.
• Force Majeure Events
• Actions or inactions on your part
• Events arising from your systems
• ISP or Internet outages outside of Cleeks Cloud’s control
• Outages associated with any suspension, termination or expiration of this Agreement
(or a part thereof)
• Outages reasonably deemed necessary by Cleeks Cloud
CLEEKS CLOUD – SERVICE LEVEL STANDARDS 2019 (admin@cleekscloud.com)