TERMS & CONDITIONS
TERMS & CONDITIONS
These terms and conditions and any details set out in an order form or other document referencing them (collectively, the “Agreement”) shall govern the use of the SkyFlok Storage Aggregation platform and related applications (the “Platform”).
1 THE PARTIES
1.1 The Agreement is entered into between Chocolate Cloud ApS (“We”, “Us”,”Our”) and the legal entity designated (“You”, “Your”) in connection with subscribing to, or renewing a subscription for, the Platform. If no such legal entity is designated the Agreement shall be deemed to have been entered into with you as an individual and the terms ”You” and ”Your” shall be construed accordingly.
1.2 You represent and warrant that You have the right, title and authority to enter into the Agreement on behalf of any legal entity designated, cf. Clause 1.1.
2 ABOUT THE PLATFORM AND US
2.1 The Platform has been developed with the aim of making the distribution of files across multiple third party cloud platforms designated by You (the “Cloud Providers”) easy and seamless without compromising on flexibility. In addition the Platform offers many advanced features aimed at improving the security, privacy, reliability and download speeds in respect of the data transferred via the Platform.
2.2 You are always welcome to contact Us by using the contact form available on webpage at https://www.chocolate-cloud.cc/ or by using the contact details specified below if You have any queries in respect of the Platform, the Agreement or otherwise:
Chocolate Cloud ApS
Phone: +45 22 62 86 20
3 YOUR SUBSCRIPTION
3.1 Subject to Your payment of the fees set out in the Agreement, we grant to You a worldwide, non-exclusive, non-sublicensable, non-transferable and revocable right to access and use the Platform in accordance with the Agreement.
3.1 When a subscription for the Platform is entered into We will send the login credentials needed to access and use the Platform to the e-mail address provided by You. You agree only to use the Platform for Your own benefit and not to share the login credentials with anyone who are not licensed to use the Platform under this Agreement. Upon becoming aware of any unauthorised access to or use of the Platform You shall immediately notify Us.
3.2 Unless otherwise agreed, the payment terms in respect of the fees shall be 3o days from the date of the invoice which will be sent to the e-mail address specified by You when you subscribed to the Platform.
4 YOUR DATA
4.1 The Platform allows You to transfer data from and to the Cloud Providers designated by You. The ownership of any such data transferred by You shall remain solely with You or (if applicable) your licensors and You shall be solely responsible for it pursuant to Clause 11.
4.2 To the extent necessary to facilitate your use of the Platform or provide any additional services requested by You, You shall grant to Us, or (if applicable) procure the grant to Us of, a worldwide, royalty free, sub-licensable, transferrable license to use any data transferred via the Platform, including for example by means of copying it and transferring it to the Cloud Providers designated by You.
5 DATA PROTECTION
5.1 You are the data controller and We are the data processor in respect of any personal data that You transfer via the Platform. Accordingly, We will only process such personal data in accordance with the data processor agreement included in Schedule 1 and it is Your sole responsibility to ensure that You have the requisite legal basis for processing, and for instructing Us and our sub-contractors (including the Cloud Providers) to process, the personal data transferred via the Platform.
5.2 When You subscribe to, or renew a subscription for, the Platform or request other services You agree to share certain personal data with Us such as Your name, address, e-mail address and phone number for the purpose of, amongst others, allowing Us to manage Your subscription to the Platform. We are the data controller in respect of any such personal data and We will only process it in accordance with Our privacy notice which is available here and which We strongly encourage you to read. You can rest assured that We take Your privacy serious at all times.
6 YOUR LOGIN CREDENTIALS
6.1 When You subscribe to the Platform We will create a user account for You and send You an email containing the login credentials needed to access and use the Platform. The email will be sent to the e-mail address You provided to Us.
6.2 You agree not to share Your login credentials with any third party and to hold Us harmless for any loss or damage caused by any unauthorized access and use of the Platform taking place by use of said login credentials. Upon becoming aware of any unauthorized access to or use of the Platform You shall notify Us without undue delay using the contact details specified in Clause 2.
7 OUR INTELLECTUAL PROPERTY RIGHTS
7.1 This Agreement does not entail any transfer of intellectual property rights to You. You acknowledge and agree that any and all right, title and interest in and to the Platform shall remain vested exclusively with Us and (if applicable) our licensors.
7.2 You shall not (i) alter, enhance, or make derivative works of the Platform, or (ii) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Platform, except to the extent permitted by compulsory applicable law.
8 UPDATES AND CHANGES TO THE PLATFORM
8.1 We may from time to time update the platform in order to for example make available new or improved functionality, introduce changes to the user interface or remedy software bugs, but are not obliged to do so. For the avoidance of doubt, any such updates shall be deemed part of the Platform for the purposes of the Agreement unless You are notified that separate terms and conditions apply in which case they will take precedence.
8.2 We may from time to time decide to remove or change certain functionality of the Platform. In case of any material changes to the functionality which adversely impacts Your ability to use the Platform, You shall have the right to terminate the Agreement with immediate effect and We will reimburse you any fees paid in advance to the extent the relate to a period of time following the effective date of termination.
9 AVAILABILITY OF THE SERVICE
9.1 We use all commercially reasonable efforts to ensure that the Platform is accessible at all times. However, you acknowledge that at times the Platform may be unavailable, or its functionality limited, due to server or software maintenance and updates.
9.2 We reserve the right to temporarily disable access to the Platform and/or terminate the Agreement with immediate effect and without prior notice if deemed necessary (in Our sole discretion) to prevent any use of the Platform contrary to the Agreement, including, but not limited to, if We suspect that Your user account has been compromised or that the Platform is being used contrary to Clause 10.2.
10.1 We warrant that, to the best of our knowledge, Your use of the Platform will not infringe any third party rights, including intellectual property rights.
10.2 You warrant i) that any data, including, but not limited to, text, video, image or sound files, transferred to or from the Platform via your user account does not infringe any third party rights or violate applicable law, and ii) that the Platform is not otherwise used in connection with any illegal, fraudulent or defamatory activity.
11 LIMITATION OF LIABILITY
11.1 Neither party shall be liable for i) any special, indirect or consequential damage or loss, including loss of profits, contracts, business or anticipated savings, or ii) damage or loss, including loss of data, caused by circumstances beyond that party’s control, including, but not limited to, in respect of power outage, natural disasters, civil unrest, war, terror, strike or other labor issue, computer virus, denial of service attacks, or interruption or failure of the internet.
11.2 We do not warrant that the Platform is fit for any particular purpose and do not assume any liability for i) data transferred via the Platform (except as specified in Clause 5), ii) any damages arising in connection with Your use of the Platform, or iii) the availability of the Platform, expect if expressly specified in the Agreement.
11.3 Notwithstanding anything to the contrary, and with the exception of any breach of Clause 3 or 2, either party’s liability under this Agreement shall be limited to the aggregate amount paid by You under this Agreement during the twelve calendar months immediately preceding the date on which the claim for breach is made.
12 TERM AND TERMINATION
12.1 The Agreement shall enter into force when a subscription for the Platform is entered into and shall remain in force until the agreed expiration of the subscription (the “Term”) or until terminated in accordance with this Clause 12. Upon expiration of the initial Term, or any renewal hereof, the Agreement will automatically be renewed for another period equal to the initial Term unless a party notifies the other at least 30 days prior to the expiration date that the Agreement shall not be renewed.
12.2 Notwithstanding the foregoing, We reserve the right to terminate this Agreement at any time without liability if any of the Cloud Providers designated by You i) cease to provide their services, or ii) terminate their agreement with Us, and no substitute Cloud Provider can be found and agreed within a time limit allowing Us to continue performance under this Agreement. Any fees paid in advance under this Agreement will in case of such termination be reimbursed to You to the extent that they relate to a period of time following the effective date of termination.
12.3 We reserve the right to terminate this Agreement for convenience if, upon having been notified, You do not accept any changes to this Agreement, cf. clause 14.1, or the Privacy Notice referred to in Clause 5.2.
12.4 This Agreement may upon prior written notice be terminated immediately by either party for cause in case the other party commits a material breach hereof. For the avoidance of doubt, any breach of Clauses 3 (including Your failure to pay the subscription fees), 5 or 10 shall be deemed a material breach of this Agreement.
12.5 Upon termination of this Agreement, regardless of cause, You shall cease use of the Platform immediately and You will no longer be able to access any data transferred via the Platform to the Cloud Providers. It is Your own responsibility to backup any data transferred to the Cloud Providers via the Platform prior to termination as We may not be able to subsequently retrieve it and any retrieval (if possible) will be associated with additional fees.
12.6 Termination of this Agreement, regardless of cause, shall not affect any rights or obligations of the parties accrued prior to termination and Clauses 10 (Warranties), 11 (Limitation of Liability), 13 (Governing Law and Venue), and 15 (Miscellaneous) shall survive termination or expiration of this Agreement.
13 GOVERNING LAW AND VENUE
13.1 Any dispute arising out of or in connection with the Agreement, including any dispute regarding the existence, validity or termination thereof, shall be settled exclusively by the laws of Denmark without regard to any choice or conflicts of law rules.
13.2 The exclusive place of jurisdiction shall be Aarhus, Denmark.
14 AMENDMENTS TO THE AGREEMENT
14.1 We reserve the right to amend this Agreement at any time with a notice . If You do not terminate Your subscription to the Platform the amended terms and conditions shall be deemed accepted as of their effective date.
15.1 Neither Party may transfer its rights or obligations under this Agreement to any third party. However, notwithstanding the foregoing We reserve the right to transfer Our rights and obligations under the Agreement in case of a merger, de-merger or accusation involving all or a substantial part of Our assets.
15.2 Should one or more of the provisions of the Agreement be or become invalid, this shall not affect the validity of the remaining provisions hereof. To the extent possible any invalid provision shall be replaced with a valid provision that reflects the intention underlying the invalid provision as closely as possible.
15.3 All notifications required pursuant to this Agreement shall be in writing (email being sufficient). It is Your responsibility to inform Us about any changes in respect of Your contact details.
15.4 In the event of any conflict between these terms and conditions and the terms set out in an order form or other document referencing them, these terms and conditions shall take precedence. –