Cloud Service Agreement

CLOUD SERVICES AGREEMENT

This Cloud Services Agreement (this “Agreement”) is between Virrata AB (“Virrata”) and the individual or entity that has executed this Agreement (“You”). This Agreement sets forth the terms and conditions that govern orders placed by You for Services under this Agreement.

1. AGREEMENT DEFINITIONS

1.1  “Ancillary Program” means any software agent or tool owned or licensed by VIRRATA that VIRRATA makes available to You for download as part of the Cloud Services for purposes of facilitating Your access to, operation of, and/or use with, the Services Environment. The term “Ancillary Program” does not include separately licensed third party technology.

1.2  “Cloud Services” means, collectively, the VIRRATA cloud services (e.g., VIRRATA software as a service offerings and related VIRRATA Programs) listed in Your order and defined in the Service Specifications as then currently published at VIRRATA’s website.

1.3  “VIRRATA Programs” refers to the software products owned or licensed by VIRRATA to which VIRRATA grants You access as part of the Cloud Services, including Program Documentation, and any program updates provided as part of the Cloud Services. The term “VIRRATA Programs” does not include separately licensed third party technology.

1.4  “Program Documentation” refers to the program user manuals for the VIRRATA Programs referenced within the Service Specifications for Cloud Services, as well as any help windows and readme files for such VIRRATA Programs that are accessible from within the Services. The Program Documentation describes technical and functional aspects of the VIRRATA Programs. You may access the documentation online at cpen.com or such other address specified by VIRRATA.

1.5 “Services” means, collectively, both the Cloud Services and any other professional services such as disaster recovery and the like that You have ordered.

1.6 “Services Environment” refers to the combination of hardware and software components owned, licensed or managed by VIRRATA to which VIRRATA grants You and Your Users access as part of the Cloud Services which You have ordered. As applicable and subject to the terms of this Agreement and Your order, VIRRATA Programs, Third Party Content and Your Content may be hosted in the Services Environment.

1.7 “Service Specifications” means the then current descriptions on cpen.com , or such other address specified by VIRRATA, that are applicable to the Services under Your order, including any Program Documentation, VIRRATA Cloud Hosting and Delivery Policies (e.g., support and security policies), and other descriptions referenced or incorporated in such descriptions.

1.8 “Services Period” refers to the period of time for which You ordered Cloud Services as specified in Your order.

1.9 “Third Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of VIRRATA and made available to You through, within, or in conjunction with Your use of, the Cloud Services. Examples of Third Party Content include data feeds from social network services, rss feeds from blog posts, and data libraries and dictionaries.

1.10 “Your Content” means all text, files, images, graphics, illustrations, information, data (including Personal Data as that term is defined in the Data Processing Agreement for VIRRATA Cloud Services), audio, video, photographs, applications, software and other content and material in any format, provided by You that reside in, or run on or through, the Services Environment.

2. TERM OF AGREEMENT

This Agreement is valid for the order which this Agreement accompanies. Access to the services available will be granted upon your registration of a personal account for the service in question. This Agreement may also be referenced for any purchase that increases the quantity of the original Services ordered (e.g., additional Users), for any Cloud Services options offered by VIRRATA for the original Services ordered, and for any renewal of the Services Period of the original order.

3. RIGHTS GRANTED

3.1 For the duration of the Services Period and subject to Your payment obligations, and except as otherwise set forth in this Agreement or Your order, You have the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the Services that You ordered, including anything developed by VIRRATA and delivered to You as part of the Services, for Your personal use only.

3.2 You do not acquire under this Agreement any right or license to use the Services, including the VIRRATA Programs and Services Environment, in excess of the scope and/or duration of the Services stated in Your order. Upon the end of the Services ordered, Your right to access and use the Services will terminate.

3.3 To enable VIRRATA to provide You with the Services, You grant VIRRATA the right to use, process and transmit, in accordance with this Agreement and Your order, Your Content for the duration of the Services Period plus any additional post-termination period during which VIRRATA provides You with access to retrieve an export file of You Content.

3.4 You agree that VIRRATA may allow providers of third party programs to access the Services Environment, including Your Content, as required for the interoperation of such third party programs with the Services. VIRRATA will not be responsible for any use, disclosure, modification or deletion of Your Content resulting from any such access by third party program providers or for the interoperability of such third party programs with the Services.

4. OWNERSHIP AND RESTRICTIONS

4.1 You retain all ownership and intellectual property rights in and to Your Content. VIRRATA or its licensors retain all ownership and intellectual property rights to the Services, including VIRRATA Programs and Ancillary Programs, and derivative works thereof, and to anything developed or delivered by or on behalf of VIRRATA under this Agreement.

4.2 You may not, or cause or permit others to:

1. a)  remove or modify any program markings or any notice of VIRRATA’s or its licensors’ proprietary rights;
2. b)  make the programs or materials resulting from the Services (excluding Your Content) available in any manner to any third party for use in the third party’s business operations;
3. c)  modify, make derivative works of, disassemble, decompile, or reverse engineer any part of the Services unless required to be permitted by law;
4. f)  license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, VIRRATA Programs, Ancillary Programs, Services Environments or materials available, to any third party, other than as expressly permitted under the terms of the applicable order.

4.3 The rights granted to You under this Agreement are also conditioned on the following:

1. a)  except as provided herein or in Your order, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
2. b)  You make every reasonable effort to prevent unauthorized third parties from accessing the Services.
3. SERVICE SPECIFICATIONS

5.1 The services include, but is not limited to, File Repository to manage and share text files, Dictionaries to provide word definitions, text translation services and speech to enable text to be read out aloud.The services also include features to create lists and content to use with practice and learning apps.

5.2 VIRRATA may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the Services Period, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Content. The Service Specifications are subject to change at VIRRATA’s discretion; however, VIRRATA changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the applicable Services provided to You for the duration of the Services Period.

5.3 VIRRATA and its affiliates may perform certain aspects of Cloud Services, such as service administration and support, as well as other Services (including disaster recovery and other professional services), from locations and/or through use of subcontractors, worldwide.

6. USE OF THE SERVICES

6.1 You are responsible for maintaining the confidentiality of Your username, password and other account information. You are responsible for all activities that occur under Your username, password and accounts or as a result of Your access to the Services and agree to notify VIRRATA immediately of any unauthorized use.

6.2 Any content including any Third Party Content that You store in Your Services Environment will count towards any storage or other allotments applicable to the Cloud Services that You ordered.

6.3 You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Your Content and Third Party Content, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations.

VIRRATA reserves the right to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. VIRRATA shall have no liability to You if VIRRATA takes such action. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Your Content. You agree to defend and indemnify VIRRATA against any claim arising out of a violation of Your obligations under this section.

6.4 You are required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, including for the VIRRATA Programs, as such Patches are generally released by VIRRATA as described in the Service Specifications. Except for emergency or security related maintenance activities, VIRRATA will coordinate with You the scheduling of application of Patches, where possible, based on VIRRATA’s next available standard maintenance window.

6.5 You agree to provide VIRRATA with all information, access and full good faith cooperation reasonably necessary to enable VIRRATA to provide the Services and You will perform the actions identified in Your order as Your responsibilities.

7. FEES

7.1 Fees, if any, apply as specified on cpen.com.

8. SERVICES PERIOD; END OF SERVICES

8.1 Services provided under this Agreement shall be provided for the Services Period defined in Your order, unless earlier suspended or terminated in accordance with this Agreement or the order. If stated in the Service Specifications, certain Cloud Services that are ordered will automatically renew for additional consecutive Services Periods unless (i) You provide VIRRATA with written notice no later than thirty (30) days prior to the end of the applicable Services Period of your intention not to renew such Cloud Services, or (ii) VIRRATA provides You with written notice no later than ninety (90) days prior to the end of the applicable Services Period of its intention not to renew such Cloud Services.

8.2 Upon the end of the Services, You no longer have rights to access or use the Services, including the associated VIRRATA Programs and Services Environments; however, at Your request, and for a period of up to 60 days after the end of the applicable Services, VIRRATA will make available to You Your Content and as existing in the Services Environment on the date of termination. At the end of such 60 day period, and except as may be required by law, VIRRATA will delete or otherwise render inaccessible any of Your Content that remain in the Services Environment.

8.3 If either of us breach a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If VIRRATA terminates the order as specified in the preceding sentence, You must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. Except for non-payment of fees, the nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under this Agreement, You may not use those Services ordered.

9. NON-DISCLOSURE

9.1 By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, Your Content residing in the Services Environment, and all other information clearly identified as confidential at the time of disclosure.

9.2 A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.

9.3 We each agree not to disclose each other’s Confidential Information to any third party other than as set forth in the following sentence for a period of three years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, VIRRATA will hold Your Confidential Information that resides within the Services Environment in confidence for as long as such information resides in the Services Environment. We each may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. VIRRATA will protect the confidentiality of Your Content residing in the Services Environment in accordance with the VIRRATA security practices defined as part of the Service Specifications applicable to Your order. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders placed under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law.

10. DATA PROTECTION

10.1 In performing the Services, VIRRATA will comply with the VIRRATA Services Privacy Policy, which is available at https://cpen.com/privacy-policy/  and incorporated herein by reference. The VIRRATA Services Privacy Policy is subject to change at VIRRATA’s discretion; however, VIRRATA policy changes will not result in a material reduction in the level of protection provided for Your Personal Data provided as part of Your Content during the Services Period of Your order.

10.2 The Service Specifications applicable to Your order define the administrative, physical, technical and other safeguards applied to Your Content residing in the Services Environment and describe other aspects of system management applicable to the Services. You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content, including any viruses, Trojan horses, worms or other programming routines contained in Your Content that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.

11. WARRANTIES, DISCLAIMERS LIMITATIONS OF LIABILITY

11.1 VIRRATA warrants that it will perform (i) Cloud Services in all material respects as described in the Service Specifications, and (ii) Services in a professional manner in accordance with the Service Specifications. If the Services provided to You were not performed as warranted, You must promptly provide written notice to VIRRATA that describes the deficiency in the Services (including, as applicable, the service request number notifying VIRRATA of the deficiency in the Services).

11.2 VIRRATA DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT VIRRATA WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY VIRRATA, AND (C) THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS.

YOU ACKNOWLEDGE THAT VIRRATA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. VIRRATA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. VIRRATA IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT, YOUR APPLICATIONS OR THIRD PARTY CONTENT.

VIRRATA’S TOTAL LIABILITY UNDER THIS AGREEMENT, SAVE FOR CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, SHALL FOR ANY EVENT AND AGGREGATED FOR ALL EVENTS BE LIMITED TO THE NET AMOUNT YOU HAVE PAID TO VIRRATA FOR YOUR LICENSE UNDER THIS AGREEMENT.  HOWEVER, NOTWITHSTANDING THE FOREGOING SECTION, IN NO EVENT SHALL VIRRATA BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY LOSS OF OPPORTUNITY, BUSINESS, PROFIT, REVENUE, DATA OR OTHER INFORMATION, OR ANY USE OF ANY DATA, INFORMATION, DOCUMENTATION OR SERVICES, UNLESS THE DAMAGE SUFFERED IS DUE TO VIRRATA’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT.

NOTHING IN THIS AGREEMENT SHALL LIMIT VIRRATA’S LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF VIRRATA, OR VIRRATA’S LIABILITY IN THE TORT OF DECEIT. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. VIRRATA’S MAXIMUM LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO VIRRATA FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM LESS ANY REFUNDS OR CREDITS RECEIVED BY YOU FROM VIRRATA UNDER SUCH ORDER.

12. THIRD PARTY WEB SITES, CONTENT, PRODUCTS AND SERVICES

The Services may enable You to link to, transmit Your Content to, or otherwise access, other Web sites, content, products, services, and information of third parties. VIRRATA does not control and is not responsible for such Web sites or any such content, products, services and information accessible from or provided through the  Services, and You bear all risks associated with access to and use of such Web sites and third party content, products, services and information.

13. SERVICES TOOLS AND ANCILLARY PROGRAMS

13.1 VIRRATA may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve Your VIRRATA service requests. The Tools will not collect or store any of Your Content residing in the Services Environment, except as necessary to provide the Services or troubleshoot service requests or other problems in the Services. Information collected by the Tools (excluding Your Content) may also be used to assist in managing VIRRATA’s product and service portfolio, to help VIRRATA address deficiencies in its product and service offerings, and for license and Services management.

13.2 VIRRATA may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services Environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). VIRRATA may make Service Analyses publicly available; however, Service Analyses will not incorporate Your Content or Confidential Information in a form that could serve to identify You or any individual, and Service Analyses do not constitute Personal Data. VIRRATA retains all intellectual property rights in Service Analyses.

14. FORCE MAJEURE

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services.

15. GOVERNING LAW AND JURISDICTION

This Agreement is governed by Swedish law and You and VIRRATA agree to submit to the exclusive jurisdiction of, and venue in, the courts of Sweden in any dispute arising out of or relating to this Agreement.