Last Updated: 【January 30, 2024】
This End User License Agreement (“EULA” or “Agreement”) is between you (or “Customer”) and CuriosityCloud Contracting Party (or CuriosityCloud) as defined in Section 1.9 of this Agreement. This Agreement governs your use of CuriosityCloud’s products including but not limited to hardware, software, cloud-delivered security service, and Software-as-a-Service (collectively, “Product”).
Your download, installation, registration, access, evaluation, use of the Product, or your clicking of “I accept” or similar button or check box presented to you as part of the sign-up or log-in process, whichever is earlier, constitutes acceptance by you of the terms in this EULA. Please carefully read and fully understand all terms and conditions of this EULA before using the Product, especially the Restrictions and Disclaimer clauses which are in capitalized or bolded form. If you do not agree to any portion of this EULA, you must not use or access the Product.
Evaluation. The Evaluation provided by CuriosityCloud to you is limited to test scenarios, you shall not use the Evaluation with production data and shall cease using the Evaluation upon the period of the Evaluation agreed by you and CuriosityCloud being expired or terminated. The Evaluation is provided “AS-IS” without indemnification, support, or warranty of any kind, express or implied.
1. DEFINITIONS
1.1
“Affiliate” means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under a common control (e.g., sibling), as applicable, where “control” means having the power, directly or indirectly, to direct or cause the direction of the management and policies of the entity, whether through ownership of voting securities, by contract or otherwise.
1.2
“Approved Source” means CuriosityCloud, a distributor, or reseller directly or indirectly authorized by CuriosityCloud to sell the Product.
1.3
«Customer” means any legal entity, organization or individual that acquires the Product from an Approved Source or other authorized marketplace and uses the Product principally for its own use. Non-authenticated User is included in the Customer.
1.4
“End User” means any individual authorized by the Customer to use the Product on behalf of the Customer and has completed relative authentication procedure to be associated with the Customer.
1.5
“Non-authenticated User” means any subject who has not registered an account or has only registered but has not completed any authentication procedure to be associated with an entity or an organization, and only browses Product-related information or uses the Product within the restricted scope.
1.6
“End User Data” means data that is provided by or on behalf of Customer to CuriosityCloud during the relationship governed by this Agreement.
1.7
“Evaluation” means a product for proof of concept, beta testing, trial, evaluation, or other similar purposes.
1.8
“Hardware” means hardware-based products supplied by CuriosityCloud regardless of whether a fee is charged for such hardware.
1.9
“CuriosityCloud Contracting Party” or “CuriosityCloud” means CuriosityCloud Technologies Italy S.r.l., if you are located in the European Economic Area (the “EEA”); or (b) CuriosityCloud Technologies (Hong Kong) Limited or its subsidiaries, if you are located outside of the EEA.
1.10
“Software” means any software embedded in Hardware and any standalone software that is provided without Hardware, including updates, regardless of whether a fee is charged for the use of such software.
1.11
“Subscription” means Software-as-a-Service and cloud-delivered security service, including updates, provided by CuriosityCloud, regardless of whether a fee is charged for its use. Technical support, customer success plans, and professional services are not considered Subscriptions under this Agreement.
1.12
“Product” means, collectively, Hardware, Software, Subscription, or any combination thereof.
1.13
“Published Specifications” means the user manual and other corresponding materials published by CuriosityCloud and customarily made available to the Customer of the Product.
1.14
“Service Level Agreement” means all service level agreements that we offer with respect to the Subscription, as they may be updated by us from time to time.
1.15
“Update” means any update, upgrade, or bug fix, which is made generally available by CuriosityCloud to its Customer.
1.16
“Your Content” means content that any Customer transfers to us for processing, storage, or hosting by the Subscription in connection with your account and any computational results that any Customer derives from the foregoing through their use of the Subscription.
2. USE AND RESTRICTIONS
2.1
«Software Use Grant and Access to Subscriptions» Subject to your compliance with this Agreement, CuriosityCloud grants you a limited, non-exclusive right to access and use CuriosityCloud’s Software or Subscriptions:
i. in accordance with this Agreement and other Published Specifications for the Product;
ii. solely within the scope of the license or usage capacity purchased;
iii. solely for your internal use, unless agreed otherwise in a separate written contract with CuriosityCloud; and
iv. through your third-party contractor providing IT services solely for your benefit, subject to their compliance with this Agreement.
All other rights in the Software or to the Subscriptions (including but not limited to the intellectual property, the ownership of source code for the software, and tools used in technical services) are expressly reserved by CuriosityCloud.
2.2
«Use Restriction» You shall not:
i. use the Product beyond the scope of the license and/or capacity purchased or in any manner not authorized by the Published Specifications of the Product or this EULA;
ii. sell, resell, sublicense, or assign or otherwise transfer the Product or any rights or interests in the Product to any third party except in accordance with the express terms herein;
iii. transfer, sublicense, or assign your rights under this Agreement to any other person or entity except as expressly provided in article 2.2.3 below, unless expressly authorized by CuriosityCloud in writing;
iv. disclose, publish, or otherwise make publicly available any benchmark, performance or comparison tests that you (or a third party contractor) run on the Product, in whole or in part;
v. modify, translate, adapt or create derivative works from the Product, in whole or in part;
vi. disassemble, decompile, reverse engineer, or otherwise attempt to derive the source code, methodology, analysis, or results of the Product, in whole or in part, unless expressly permitted by applicable law in the jurisdiction of use despite this prohibition;
vii. remove, modify, or conceal any Product or service identification, copyright, proprietary, intellectual property notices or other such marks on or within the Product;
viii. use the Product to engage in any activity that violates this Agreement or applicable laws and regulations, or infringes any third party’s legitimate rights or interests, including, without limitation, sabotaging or attempting to sabotage cyber security, accessing the network, using network resources or deleting, modifying, adding data and application programs stored, processed or transmitted in the network without authorization;
ix. perform penetration or load testing on the Product or CuriosityCloud’s platform or environment without the prior written consent of CuriosityCloud and agree to certain conditions and requirements for such penetration or load testing;
x. dig/detect possible vulnerabilities or flaws in Products or CuriosityCloud’s platform and system by scanning and other means, or release vulnerabilities or flaws in violation of relevant laws, or use the relevant vulnerabilities or flaws to engage in any behavior that damages the relevant Products and CuriosityCloud.
xi. use the Software that is licensed for a specific device, whether physical or virtual, on another device, unless expressly authorized by CuriosityCloud in writing;
xii. duplicate the Software, its methodology, analysis, or results unless specifically permitted in accordance with Published Specifications for such Software or for the specific purpose of making a reasonable number of archival or backup copies, and provided in both cases that you reproduce in the copies the copyright and other proprietary notices or markings that appear on the original copy of the Software as delivered to you;
xiii. use the Subscription to store or transmit infringing, libelous, or otherwise unlawful or tortious materials including but not limited to viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, or to store or transmit materials in violation of third-parties privacy or intellectual property rights;
xiv. interfere with, disrupt the integrity or performance of, or attempt to gain unauthorized access to the Subscription, their related systems or networks, or any third-party data contained therein.
2.3 Customer’s Representation and Responsibility
Customer’s Representation and Responsibility
2.3.1
Account. You may assign an End User or a third party (including but not limited to your contractors and/or agents) to your account and authorize them to access or use the Product. You shall be responsible for all the operations conducted by the End User or authorized the third party under your account, any breach of this Agreement by the End User or third party shall be deemed a breach by you. You shall defend, indemnify, and hold harmless CuriosityCloud from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any claim concerning the dispute between you and any End User or third party.
2.3.1
Security. You shall be solely responsible for maintaining the confidentiality and security of your accounts and authentication credentials providing access to the Product and taking appropriate action to secure, protect, and backup your End User Data, Your Content, and your account information in a manner that will ensure appropriate security and protection. You shall notify CuriosityCloud without undue delay about any misuse of your accounts or authentication credentials you are aware of. Under no circumstance will CuriosityCloud be liable for any unauthorized access or misuse of your account, Your Content, or End User Data, unless such incidents are directly caused by our violation of the terms and conditions hereunder.
2.3.3
Affiliate. If you purchase the Product for use by an Affiliate of yours, you shall:
i. provide the Affiliate with a copy of this Agreement;
ii. ensure that the Affiliate complies with this Agreement;
iii. be responsible and liable for any breach of this Agreement by such Affiliate; and where applicable, be responsible and liable for any local law that imposes any tariffs, fees, penalties, or fines arising from your Affiliates’ use of the Product in such jurisdictions.
2.3.4
Compliance with applicable laws and regulations. You shall:
i. have the full legal right, power, and authority to enter into this Agreement and your performance of this Agreement will not violate the terms of any contract, obligation, law, regulation, or ordinance to which you are or may become subject;
ii. obtain all necessary licenses or approvals for your business activities or use of CuriosityCloud Product that are required by relevant authorities and will comply with all applicable laws and regulations enacted from time to time;
iii. have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all End User Data.
3. ACQUISITION AND FEES
You may purchase or subscribe to the Product from an Approved Source and are obligated to carefully verify the authenticity of the sales qualification of the Approved Source and contact us if you have any doubt. You acknowledge and agree that if you obtain the Product having the same name as CuriosityCloud through any unauthorized third party, we do not warrant the normal use of such Product and will not be liable for any corresponding losses or damages brought to you.
Applicable fees will be set forth based on a quotation at the time of purchase or in the applicable invoice, signed sales contract, or other trade documents. You understand and agree that CuriosityCloud reserves the right to:
i. adjust the free-of-charge Product, as well as the period of free use or other conditions to be met;
ii. charge for any Product that is not indicated in writing as free for Customer and will only provide Customer with the corresponding technical support and protection within the scope of legal provisions or CuriosityCloud’s explicit statement;
iii. terminate or suspend your access to or use of the Product at its discretion if you are in default with any payment obligations concerning the Product due to the Approved Source.
4. WARRANTIES, EXCLUSIONS, AND DISCLAIMERS
4.1 Warranty
CuriosityCloud warrants that:
i. Hardware and Software will perform substantially in accordance with the applicable Published Specifications. CuriosityCloud will work jointly with distributors and system integrators to provide you with after-sales service in accordance with warranty policies signed between you and CuriosityCloud.
ii. Subscriptions will be provided in accordance with the Service Level Agreement and substantially conform to the applicable Published Specifications for the entire duration of the selected term.
CuriosityCloud may make available to you the third-party products and/or services that contain features designed to interoperate with the Product. Unless CuriosityCloud provides you with certain commitments in writing, CuriosityCloud maintains independence from products of any third party and makes no warranty about the mutual compatibility.
4.2 Exclusions
The warranty set forth above shall not apply if the failure of the Product results from or is otherwise attributable to:
i. repair, maintenance, or modification of the Product by persons other than CuriosityCloud or its designee;
ii. accident, negligence, abuse, or misuse of a Product;
iii. use of the Product other than in accordance with Published Specifications;
iv. improper installation or site preparation or your failure to comply with environmental and storage requirements set forth in the Published Specifications including, without limitation, temperature or humidity ranges; or
v. causes external to the Product such as, but not limited to, failure of electrical systems, fire or water damage.
4.3 Disclaimers
4.3.1
EXCEPT FOR THE WARRANTIES EXPRESSLY STATED AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT IS PROVIDED “AS IS”. CURIOSITYCLOUD AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE. CURIOSITYCLOUD DOES NOT WARRANT THAT (I) THE PRODUCT WILL MEET YOUR REQUIREMENTS, (II) THE USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR (III) THE PRODUCT WILL PROTECT AGAINST ALL POSSIBLE THREATS WHETHER KNOWN OR UNKNOWN.
4.3.2
UNDER NO CIRCUMSTANCES WILL CURIOSITYCLOUD BE LIABLE FOR ANY DAMAGE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS DUE TO THE FOLLOWING REASONS:
i. FORCE MAJEURE, INCLUDING BUT NOT LIMITED TO EARTHQUAKE, FLOOD, FIRE, STORM, NATURAL DISASTER, ACT OF GOD, WAR, TERRORISM, ARMED CONFLICT, LABOR STRIKE, LOCKOUT, BOYCOTT, EPIDEMIC, UNAVAILABILITY OF NETWORK AND TELECOMMUNICATIONS SERVICES, OR OTHER SIMILAR EVENTS BEYOND ITS REASONABLE CONTROL;
ii. SERVICES OF TELECOM FOUNDATION PROVIDER, INCLUDING BUT NOT LIMITED TO TECHNICAL ADJUSTMENT OF TELECOM DEPARTMENT, DESTRUCTION OF ELECTRICITY LINES, INSTALLATION, RENOVATION, MAINTENANCE OF TELECOM NETWORK OR ELECTRICITY RESOURCES BY TELECOM/ELECTRICITY DEPARTMENT;
iii. NETWORK SECURITY INCIDENTS, INCLUDING BUT NOT LIMITED TO COMPUTER VIRUSES, TROJAN HORSES OR OTHER MALICIOUS PROGRAMS, HACKER ATTACKS;
iv. OTHER REASONS THAT CAN’T BE ATTRIBUTABLE TO CURIOSITYCLOUD AND BEYOND CURIOSITYCLOUD’S CONTROL OR REASONABLE FORECAST.
5. LIMITATION OF LIABILITY
5.1
DIRECT DAMAGES. EXCEPT TO THE EXTENT THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY LAW: CURIOSITYCLOUD’S TOTAL LIABILITY TO THE CUSTOMER SHALL BE LIMITED TO DIRECT DAMAGES SUSTAINED BY THE CUSTOMER. CURIOSITYCLOUD’S TOTAL LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT: I) FOR THE SOFTWARE AND HARDWARE, WILL NOT EXCEED THE GREATER AMOUNT OF THE LICENSE FEES YOU PAID FOR THE APPLICABLE SOFTWARE DIRECTLY OR THROUGH THE APPROVED SOURCE TO CURIOSITYCLOUD; FOR THE SUBSCRIPTION, WILL NOT EXCEED THE AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE FOR YOUR USE OF THE PARTICULAR SUBSCRIPTION GIVING RISE TO THE CLAIM IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. Provided that, regardless of the law, no claim or cause of action, regardless of form, arising out of or in connection with these terms may be asserted by the Customer more than twelve (12) months after the facts giving rise to the cause of action have occurred, regardless of those facts by that time are known to, or reasonably ought to have been discovered by Customer.
5.2
DISCLAIMER OF INDIRECT DAMAGES. NEITHER CURIOSITYCLOUD NOR ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, DATA, PROFITS, OR USE OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS, SERVICES OR OTHER GOODS), ARISING OUT OF OR RELATING TO CURIOSITYCLOUD PRODUCT TO WHICH THIS AGREEMENT RELATES, REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER OR NOT EACH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
6. INDEMNIFICATION
6.1
CuriosityCloud’s Indemnification and Procedure. CuriosityCloud will defend, at its expense, any third-party action or suit against you alleging that the Product infringes or misappropriates such third party’s patent, copyright, trademark, or trade secret (“IP Claim”), and CuriosityCloud will pay damages awarded in the final judgment against you or agreed to in settlement by CuriosityCloud to the extent attributable to any such Claim; provided that you:
i. promptly notify CuriosityCloud in writing of the IP Claim;
ii. give CuriosityCloud sole control of the defense and settlement of the IP Claim; and
iii. reasonably cooperate with CuriosityCloud’s requests for assistance with the defense and settlement of the IP Claim. CuriosityCloud will not be bound by any settlement or compromise that you enter into without CuriosityCloud’s prior written consent.
6.2
Customer’s Indemnification. You will defend, at your expense, any IP Claim against CuriosityCloud arising from infringement by combinations of the Product or Your Content, as applicable, with any other product, service, software, data, content, or method. In addition, CuriosityCloud will have no obligations or liability arising from your or any End Users’ use of the Products after CuriosityCloud has notified you to discontinue such use.
6.3
Exclusions.CuriosityCloud’s obligations under this article 6.1 shall not apply to the extent any IP Claim results from or is based on:
i. modifications to CuriosityCloud made by a party other than CuriosityCloud or its designee;
ii. the combination, operation, or use of CuriosityCloud with hardware or software not supplied by CuriosityCloud, if an IP Claim would not have occurred but for such combination, operation, or use;
iii. failure to use the most recent version or release of CuriosityCloud, or an equally compatible and functionally equivalent, non-infringing version of CuriosityCloud supplied by CuriosityCloud to address such Claim;
iv. CuriosityCloud’s compliance with your explicit or written designs, specifications, or instructions;
v. use of the Product not in accordance with Published Specifications;
vi. your failure to modify or replace the Product as required by CuriosityCloud; or
vii. any Product provided on a no-charge, beta, or evaluation basis.
6.4
Remedy. THE FOREGOING TERMS STATE CuriosityCloud’S SOLE AND EXCLUSIVE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY THIRD-PARTY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
7. CONFIDENTIALITY
7.1
“Confidential Information” means the non-public information (including but not limited to price, marketing plan of products and/or services, business planning and strategy, customer list and information, financial information, product development status or relevant, or technical solutions.) that is exchanged between the parties, provided that such information is identified as confidential at the time of initial disclosure by the disclosing party (“Discloser”), or disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information (“Recipient”). Notwithstanding the foregoing, Confidential Information does not include information that the Recipient can prove by credible evidence:
i. was in the public domain at the time it was communicated to the Recipient
ii. entered the public domain subsequent to the time it was communicated to Recipient through no fault of Recipient;
iii. was in Recipient’s possession free of any obligation of confidentiality at the time it was communicated to Recipient;
iv. was disclosed to the Recipient free of any obligation of confidentiality; or
v. was developed by the Recipient without the use of or reference to the Discloser’s Confidential Information.
7.2
Each party will not use the other party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its employees and subcontractors who need to know such Confidential Information for the performance of this Agreement, provided that each such employee and subcontractor is subject to use and disclosure restrictions that are at least as protective as those set forth herein. Recipient shall maintain the confidentiality of Discloser’s Confidential Information using the same effort that it ordinarily uses with respect to its own confidential information of similar nature and importance, but no less than reasonable cautiousness. The foregoing obligations will not restrict the Recipient from disclosing Discloser’s Confidential Information:
i. pursuant to an order issued by a court, administrative agency, or other governmental branches, provided that the Recipient gives reasonable notice to Discloser to enable it to contest such order;
ii. on a confidential basis to its legal or professional financial advisors; or
iii. as required under applicable securities regulations.
7.3
The foregoing obligations of each party shall be effective during the use of the Product.
8. DATA PROTECTION
CuriosityCloud will process End User Data solely for the purpose of fulfilling its obligations under the terms of this Agreement. To the extent CuriosityCloud processes End User Data, including personal data, as defined by applicable data protection laws, such personal data will be processed in accordance with the Data Processing Agreement, Privacy Policy, or other related legal notice available to you on the Product interface or website.
9. INTELLECTUAL PROPERTY
CuriosityCloud and its Affiliates retain all rights to intellectual and intangible property relating to CuriosityCloud Product, including but not limited to copyrights, patents, trade secret rights, trademarks, and any other intellectual property rights therein unless otherwise indicated. Except where agreed in writing, nothing in this Agreement transfers ownership in or grants any license to, any intellectual property rights to you. CuriosityCloud may use any feedback you provide in connection with your use of the Product as part of its business operations, without your approval or compensation to you.
10. TERM AND TERMINATION
This Agreement is effective until terminated or, as applicable, in accordance with the term of the Product you purchased.
10.1 Termination for Cause.
i. Either party materially breaches this Agreement or any applicable agreement with the Approved Source and does not cure that breach within thirty (30) days after receipt of written notice of the breach, the non-breaching party may terminate this Agreement for cause. For example, CuriosityCloud may terminate or suspend your access to or use of the Product if CuriosityCloud reasonably believes that you or End User are using the Product in a manner or for a purpose that is likely to cause harm to CuriosityCloud or any third party.
ii. CuriosityCloud will terminate this Agreement if you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
10.2 Effect of Termination
Upon termination, you shall immediately cease using the Product, and pay the Approved Source any unpaid fees calculated to the termination date. If you continue to use or access the Product after termination, the Approved Source may invoice you, and you agree to pay, for such continued use. Under no circumstances will CuriosityCloud be liable for any loss or damage caused by the unilateral termination of this Agreement due to your violation or breach of this Agreement.
11. TEMPORARY SUSPENSION
11.1
CuriosityCloud may suspend your right to access or use any portion or all of the Product under the following circumstances:
i. Regular or Emergency Maintenance. CuriosityCloud may overhaul, maintain, upgrade, or optimize the Product at CuriosityCloud’s discretion (“Regular Maintenance”) for the purpose of enhancing or refining the Product, during which time you may experience some disruption to the Product. In case of force majeure, fault of telecom foundation provider or other events, CuriosityCloud may need to perform emergency maintenance and temporarily suspend your access to, or use of CuriosityCloud’s Product.
ii. Major Adjustments. To ensure the security and stability of the Product, CuriosityCloud may make major adjustments (including but not limited to data center migration and device or server replacement). The aforesaid circumstances may cause the interruption or suspension of the Product within a reasonable time.
iii. Customer’s Misuse of the Product or Required by Authorities. CuriosityCloud reserves the right to suspend your access to or use of the Product in the event your use of the Product poses an imminent threat to CuriosityCloud’s network, platform, system or if directed by a court or competent authority.
In such cases, CuriosityCloud will:
i. suspend such Products only to the extent reasonably necessary to prevent any harm to CuriosityCloud;
ii. use our reasonable efforts to notify you in advance as soon as feasible or permitted and give you the opportunity to promptly change the configuration of your server(s) accordingly and/or work with you to promptly resolve the issues causing the suspension of such Products; and
iii. reinstate any suspended Products immediately after any issue is abated. You understand and agree that, to protect your legitimate interest or other major public interest, the Emergency Maintenance may be performed without providing you advance notice, but CuriosityCloud will notify you as soon as possible.
11.2 Effect of Suspension
If we suspend your right to access or use any portion or all of the Product in accordance with article 11.1, you remain responsible for all fees and charges you incur during the period of suspension; and you shall not be entitled to any service credits or warranty under the Service Level Agreements or other Published Specification for any period of suspension.
If we suspend the Product due to your reasons, and you fail to cure or take remedial measures within ten (10) business days upon receipt of CuriosityCloud’s notice, CuriosityCloud has the right to terminate your use and access to the Product.
12. MISCELLANEOUS
12.1 Relationship
We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party nor any of their respective Affiliates is an agent of the other for any purpose or has the authority to bind the other.
12.2 Assignment
You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 12.2 will be void. We may assign this Agreement without your consent i) in connection with a merger, acquisition, or sale of all or substantially all of our assets, or ii) to any Affiliate or as part of a corporate reorganization, the assignee is deemed substituted for CuriosityCloud as a party to this Agreement and CuriosityCloud is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
12.3 Entire Agreement
This Agreement, the Addendum to the End User License Agreement, the Data Processing Agreement, the documents referenced herein, and other accepted orders, agreements, or contracts for the Product, that are officially published by CuriosityCloud or customarily made available to you, constitute the entire agreement between the parties with respect to the subject matter of this EULA and supersedes all prior written or oral agreements, understanding, and communications between parties with respect to the subject matter hereof.
12.4 No Third-Party Beneficiaries
This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
12.5 No Waivers
The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
12.6 Severability
If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
12.7 Amendment
You acknowledge and agree that CuriosityCloud may amend this EULA from time to time at CuriosityCloud’s discretion by publishing an amended version through the activation registration, login, or update interface of the Product. If you continue to use the Product after the amendment, you represent that you have fully read, understood, and accepted the amended version.
12.8 Notice
We may provide notice to you under this Agreement by i) posting a notice on our website, pushing system notification, popping up on the Product interface or customer portal (which will be effective upon posting), ii) by email or text (which will be effective upon sending out, no matter you receive or read it). You shall be responsible to keep your contact information (including but not limited to your email address, and phone number) current and accurate.
12.9 Headings
The headings, including article titles, are given solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of this Agreement or any of its provisions.
12.10 Language
This Agreement is prepared and executed in English. Any other language version (if applicable) of this Agreement is provided for reference only. In the event of any inconsistency between the English version and the other version, the English version shall prevail.
12.11 Cumulative Remedies
Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies will be without prejudice to any other remedies under this Agreement or otherwise.
12.12 Trade Compliance
In connection with this Agreement, both parties shall comply with the applicable export and sanction laws and regulations of the United Nations, China, the Unites States, and other countries. You represent and warrant that you, or any party that owns or controls you, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the listed maintained by the United Nations Security Council, the United States Government, the European Union or its Member States, or other applicable government authority. You shall be solely responsible for compliance related to your subscription, access, and use of the Product.
12.13 Governing Law and Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong, excluding its conflict of law principles. Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be three.The arbitration proceedings shall be conducted in English.
12.14 Auditing Customer Compliance
You shall retain records pertaining to Product usage. You grant to CuriosityCloud and its independent advisors the right to examine such records no more than once in any twelve-month period solely to verify compliance with this Agreement. In the event that such an audit reveals non-compliance with this Agreement, you shall promptly pay the appropriate license or subscription fees, plus reasonable audit costs, as determined by CuriosityCloud.
12.15 Survival
Articles regarding use restrictions, term, and termination, intellectual property, limitations of liability, disclaimers, indemnification, confidentiality, governing law, and dispute resolution, and this miscellaneous section shall survive termination of this Agreement.
12.16 Conflict
If there is any conflict between this Agreement and other proprietary agreement for the Product, the provisions of the proprietary agreement shall prevail; If there is any conflict between this Agreement and the purchase order, agreement, or contract, signed between you and the Approved Source in a specific project, the provisions of this Agreement shall prevail.
12.17 Contact Information
If you have any problem when using the Product, you can ask for support by sending an e-mail to marketing@curiositycloud
ADDENDUM TO THE END USER LICENSE AGREEMENT
This CuriosityCloud CuriosityCloud Cloud Platform (SCP) Addendum (“Addendum”) to the End User License Agreement (“Agreement” or “EULA”) is entered into between the Customer and CuriosityCloud. The Addendum adds additional terms specific to SCP (defined below). All capitalized terms not defined in this Addendum will have the meanings set forth in the Agreement. In the event of any material conflict between the terms in the Agreement and this Addendum, the terms in this Addendum shall prevail for purposes of SCP.
1. PRODUCT SUMMARY
CuriosityCloud Cloud Platform (SCP) is a comprehensive, safe and reliable cloud management platform that can support the Customer to manage multiple data centers in different areas and to manage the resources by connecting the infrastructure resources with the managed data centers. The SCP supports the account creation based on different roles, which can help the Customer to carry out hierarchical management in accordance with the organization structure, and it can also provide multi-functions to support the Customer in carrying out flexible and efficient management of data centers and infrastructure resources, so that the Customer can deploy and configure the SCP platform in accordance with their actual needs.
2. ACCOUNT MANAGEMEN
2.1 Account Registration
To provide SCP and authenticate the identity of Customer, or to verify the authenticity and legality of the business that Customer conducts by using SCP when necessary as required by applicable laws and regulations, you shall fill in and submit true, lawful, and valid information (“User Information”) in accordance with the requirements of CuriosityCloud, including but not limited to contact information, business license related documents (if applicable). You understand and acknowledge that if you fail to submit the related User Information or complete the corresponding authentication in accordance with the applicable laws and regulations or CuriosityCloud’s requirements, you may not be able to use SCP . You shall keep the User Information current and notify CuriosityCloud of any update in writing without undue delay.
2.2 Account Management
You shall have the necessary and appropriate rights to obtain the license to use the account of SCP by means of registration or other ways permitted by CuriosityCloud. You may, within the scope of account authority that you have, configure the corresponding account authority for other administrators to access and use SCP based on your needs. You shall be solely responsible for managing other administrators of SCP authorized by you and guarantee that they have accepted the terms and conditions of this Agreement and Addendum, and you shall be liable for their breach of this Agreement and Addendum.
2.3 Account Security
The accounts of SCP will be used as a basis of your identification to use SCP , you shall take necessary and effective measures of confidentiality and security (including but not limited to access control, high-intensity password setting) to protect your user name, password, and other information. The accounts of SCP shall be for your own use only, if you authorize third parties to manage your accounts of SCP , you shall establish your authority control mechanism, in particular, completing the handover (for example, changing password, changing login method, setting account protection, etc.) in time when personnel changes occur.
2.4 Account Issues
In the event that your accounts of SCP are stolen or used by others without your authorization (“Account Issues”), you shall immediately notify CuriosityCloud in an effective way and provide CuriosityCloud with necessary information (for example, User Information, descriptions of the situation, proofs, and requests, etc.) for verification. CuriosityCloud will deal with the Account Issues pursuant to the applicable laws, regulations, and other corresponding agreements after receiving your effective notification and completing the verification of your identity. You shall be liable for all the corresponding legal consequences arising out of or resulting from the Account Issues. CuriosityCloud will not be liable for any losses or damages brought to you due to the information you provided to CuriosityCloud being defective, which makes CuriosityCloud fail to verify your identity or confirm your request so as to fail to deal with the issues in time.
2.5 Account Deregistration
CuriosityCloud is entitled to withdraw or deregistration your accounts of SCP when your use of SCP is suspended or terminated in accordance with the Agreement.
3. PRODUCT MAINTENANCE
3.1 Software Update Mechanism
3.1.1 Scope of Update
To provide and maintain the Software, CuriosityCloud may provide you with the Software Update services in accordance with the Published Specification, including but not limited to Updates for issue fixing, functionality, and performance improvement of the Software.
Security maintenance and functionality improvement of the Software may require your download and installation of the packages to complete the Update in a timely manner. You understand and acknowledge that i) part of the functions of the Software may be limited by product version, if you don’t update the Software to the new version in time, you may not be able to use the relevant functions of the Software, and will directly limit CuriosityCloud’s corresponding technical support services for you; ii) your devices may be exposed to serious cyber security risks in case of your decline of the Update. YOU SHALL BE SOLELY RESPONSIBLE FOR ALL THE CORRESPONDING LOSSES AND DAMAGES BROUGHT TO YOU DUE TO YOUR DECLINE OF UPDATE.
3.1.2 Automatic Update
In order to implement the necessary functions of the Software and maintain the security of your network and business operations, CuriosityCloud may provide you with automatic update function of the Software (“Automatic Update”), you can enable this function in the console of the Software (access path: System Maintenance and Upgrade > Service Packs > Chcek for SPs > Update Settings). You understand and agree that i) if you enable the Automatic Update, your device will automatically search and download the update installation package through the Internet, and complete the corresponding update of the Software within the time period you choose. You will be informed of the Automatic Update details in the console of the Software; ii) if you disable this function, you may not complete the Update in time, which may result in security risks or unavailability of functions of the Software, CuriosityCloud will notify you of important Update information by popping up on the console of the Software or through other contact methods such as E-mail when necessary.
CuriosityCloud respects your options relating to the Update of the Software and will make our best commercial efforts to notify you of the relevant risks. You understand and agree that if you continue to perform the relevant operations with knowledge of the corresponding risks, you shall be solely responsible for the corresponding consequence and legal liabilities bought to you. UNDER NO CIRCUMSTANCE WILL CURIOSITYCLOUD BE RESPONSIBLE FOR ANY CONSEQUENCES, DAMAGES, OR LOSSES ARISING FROM YOUR INDEPENDENT CHOICE RELATING TO THE UPDATE OF THE SOFTWARE, PROVIDED THAT WE HAVE REMINDED AND INFORMED YOU IN ACCORDANCE WITH THE APPLICABLE LAWS OR AGREEMENTS.
3.2 Software Vulnerability Remediation
3.2.1 Methods of Vulnerability Remediation
CuriosityCloud will remedy, fix and take preventive measures for the network security vulnerability that is discovered during your use of the Software pursuant to applicable laws and the Agreement, including but not limited to providing necessary Update services of the Software, providing tools to assist fixing issues. CuriosityCloud will inform you of the potential risks of the vulnerability in a timely and adequate manner through email, pop-up reminders in the console of the Software, or website announcement after the vulnerability is discovered, and provide you with a solution as promptly as possible. You acknowledge and agree that CuriosityCloud may take the aforementioned feasible ways to send you necessary notifications about the vulnerability remediation, and you shall take responsive measures as promptly as possible after receiving the notifications.
You acknowledge and agree that since certain types of Software vulnerability may affect national security once exploited, CuriosityCloud may prioritize taking appropriate and necessary measures to fix the security issue in case of an emergency and inform you of the details as soon as the emergency is eliminated. UNDER NO CIRCUMSTANCES WILL CURIOSITYCLOUD BE LIABLE OR INDEMNIFY ANY COMPENSATION FOR ANY DAMAGE OR LOSS ARISING OUT OF OR RESULTING FROM THE EXPLOITATION OR ATTACK OF THE VULNERABILITY DUE TO YOUR NEGLIGENCE IN FIXING THE VULNERABILITY OF THE SOFTWARE.
3.2.2 Confidentiality of Vulnerability Information
For the propose of protecting the security of your Product and business system, CuriosityCloud may disclose relevant vulnerability information that is discovered to you during the process of fixing the vulnerability. You acknowledge and agree that you shall keep the vulnerability information confidential and shall not disclose to any third party. UNDER NO CIRCUMSTANCES WILL CURIOSITYCLOUD BE LIABLE OR INDEMNIFY ANY COMPENSATION FOR ANY DAMAGE OR LOSS BROUGHT TO YOU OR ANY THIRD PARTY DUE TO YOUR VIOLATION OF THE CONFIDENTIAL OBLIGATION HEREIN, AND YOU MAY ALSO BE PURSUED BY COMPETENT AUTHORITIES IN CASE OF YOUR VIOLATION OF THE APPLICABLE LAWS AND REGULATIONS. CURIOSITYCLOUD RESERVES THE RIGHT TO PURSUE YOUR LIABILITY FOR DAMAGES SUBJECT TO THE AGREEMENT ON CONFIDENTIALITY OF VULNERABILITY INFORMATION HEREOF.
3.3 Centralized Product Management
You can manage your Product through the centralized management platform. When using the ID/code or other unique identification information of the Product for activation and access, you shall confirm the accuracy of the relevant information, and shall not activate or access other third party’s Product without effective authorization. If any third-party products are evolved into CuriosityCloud’s platform as a result of your misoperation, you shall take measures promptly to deal with it, such as unbinding upon discovery or receipt of notification, or contact CuriosityCloud for corresponding assistance.