CPS Customer Agreement

Last Updated: August 2015
 
This CloudPrinting Suite (“CPS”) Customer Agreement (this “Agreement“) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between Nube Print S.L. (“Nubeprint,” “we,” “us,” or “our”) and you or the entity you represent (“you“). This Agreement takes effect when you start using CPS which is determined when you first login into CPS (the “Effective Date“). You represent to us that you are lawfully able to enter into contacts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in this Agreement.

 

1. Use of the Service Offerings.

1.1 Generally. You may access and use the Service Offerings in accordance with this Agreement. Service Level Agreements may apply to certain Service Offerings. You will adhere to all laws, rules, and regulations applicable to your use of the Service Offerings, including the Service Terms, the Acceptable Use Policy and the other Policies as defined in Section 14.

1.2 Your Account. To access the Services, you must have an account associated with a valid user and password. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our distributor are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 7.

1.3 Third Party Content. Third Party Content, such as hosting services provided by third parties, may be made available to you by other companies under separate terms and conditions, including separate fees and charges.

 

2. Changes.

2.1 To the Service Offerings. We may change, discontinue, or deprecate any of the Service Offerings (including the Service Offerings as a whole) or change or remove features or functionality of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings.

2.2 To the Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to time.

3. Security and Data Privacy.

3.1 Nubeprint Security. Without limiting Section 10 or your obligations under Section 4.2, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.

3.2 Data Privacy. The data you load in using Nubeprint Service Offering is of your property: Your Content. The data generated by the system during the performance of the Service Offering is the property of Nubeprint: the Auto-Feed Data. The usage of the data is regulated in the Authorization to Share Data document. It is your full responsibility to maintain it, including performing backups, and to comply with data privacy regulations.

4. Your Responsibilities

4.1 Your Content. You are solely responsible for the loading, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:

(a) compliance of Your Content with the Acceptable Use Policy, the other Policies, and the law;

(b) any claims relating to Your Content; and

(c) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violate such person’s rights.

4.2 Other Security and Backup. You are responsible for properly configuring and using the Service Offerings and taking your own steps to maintain appropriate security, protection and backup.

4.3 End User Violations. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content, the Auto-Feed Data or use of the Service Offerings. You are responsible for End Users’ use of Your Content, the Auto-Feed Data and the Service Offerings.

4.4 End User Support. Your end users can get support from Nubeprint in accordance with this Agreement.

 

5. Fees and Payment

5.1. Service Fees. The fees applicable to your license to use CPS are specified on the invoice. Please refer to it.

5.2 Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number or EIN number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

 

6. Temporary Suspension

6.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:

(a) your or an End User’s use of the Service Offerings (i) poses a security risk to the Service Offerings, (ii) may adversely impact the Service Offerings or the systems or Content, or (iii) may subject us, our distributor, or any third party to liability;

(b) you are, or any End User is, in breach of this Agreement, including if you are delinquent on your payment obligations for more than 15 days; or

(c) 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.

6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service Offerings:

(a) you remain responsible for all fees and charges you have incurred through the date of suspension;

(b) you remain responsible for any applicable fees and charges for any Service Offerings to which you continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;

(c) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension; and

(d) we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement.

Our right to suspend your or any End User’s right to access or use the Service Offerings is in addition to our right to terminate this Agreement pursuant to Section 7.2.

 

7. Term; Termination

7.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 7.2.

7.2 Termination.

(a) Termination for Convenience. You may terminate this Agreement for any reason by (i) providing us notice and (ii) closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you 60 days advance notice.

(b) Termination for Cause.

(i) By Either Party. Either party may terminate this Agreement for cause upon 60 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 60 day notice period.

(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you or any End User results in a suspension described in Section 6.1, (B) in order to comply with the law or requests of governmental entities, or (C) if we determine use of the Service Offerings by you or any End Users or our provision of any of the Services to you or any End Users has become impractical or unfeasible for any legal or regulatory reason.

7.3. Effect of Termination.

(a) Generally. Upon any termination of this Agreement:

(i) all your rights under this Agreement immediately terminate;

(ii) should you have chosen a financed fee solution, you remain responsible for all fees and charges according to the terms and conditions of the financed agreement signed with the finance company;

(iii) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination; and

(iv) Sections 4.1, 5.2, 7.3, 8 (except the license granted to you in Section 8.4), 9, 10, 11, 13 and 14 will continue to apply in accordance with their terms.

(b) Post-Termination Assistance and responsibilities. During the 20 days following termination:

(i) we will erase ALL of Your Content as a result of the termination;

(ii) you will erase from your systems or any other system not the property of Nubeprint ALL the Auto-Feed Data.

(ii) you may retrieve Your Content from the Services only if you have paid any charges for any post-termination use of the Service Offerings and all other amounts due; and

(iii) we will provide you with the same post-termination data retrieval assistance that we generally make available to all customers only if you have paid any charges for any post-termination use of the Service Offerings and all other amounts due.

Any additional post-termination assistance from us is subject to mutual agreement by you and us.

 

8. Proprietary Rights

8.1 Your Content. As between you and us, you own all right, title, and interest in and to Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you to Your Content. You consent to our use of Your Content to provide the Service Offerings to you and any End Users of yours. We may disclose Your Content to provide the Service Offerings to you or any End Users or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).

When you visit the CPS Site and make use of it you will be loading it with data, some of it being personal data that you own as specified in this Section 8. CPS Site will keep generating data as it processes the data loaded by you. This so called Auto-Feed data is of the property of Nubeprint. CPS Site needs the non-personal data in order to run and improve algorithms that are used to automate most of the functions performed by the CPS site. This data is used two different ways: first is to run the algorithms loaded into the CPS Site of your use. Second is to improve the existing algorithms and create new ones. This is done by Nubeprint using the non-personal data from all our customers. For this reason by accepting this Agreement you give your acceptance for Nubeprint to extract a copy and process all the non-personal data of Your Content.

Personal data is any data that includes names of persons or companies or organizations of any kind, addresses, telephones, emails, URLs or any free comment loaded by you in the CPS Site.

8.2 Service Offerings License. As between you and us, we or our distributor or licensors own and reserve all right, title, and interest in and to the Service Offerings. We grant you a limited, revocable, non-exclusive, non-sub-licensable, non-transferrable license to do the following during the Term: access and use the Services solely in accordance with this Agreement. Except as provided in this Section 8.4, you obtain no rights under this Agreement from us or our licensors to the Service Offerings, including any related intellectual property rights. Some Nubeprint Content may be provided to you under a separate license, such as the CloudPrinting Monitor License, in which case that license will govern your use of those Nubeprint Content.

8.3 License Restrictions. Neither you nor any End User may use the Service Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service Offerings (except to the extent software included in the Service Offerings are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings, or (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas. All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our distributors, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service Offerings you have used.

8.4 Suggestions. If you provide any Suggestions to us or our distributor, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our distributor will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.

 

9. Indemnification.

9.1. General. You will defend, indemnify, and hold harmless us, our distributor and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any End Users’ use of the Service Offerings (including use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any End User. If we or our distributor are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

9.2. Process. We will promptly notify you of any claim subject to Section 9.1, but our failure to promptly notify you will only affect your obligations under Section 9.1 to the extent that our failure prejudices your ability to defend the claim.

 

10. Disclaimers.

THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” WE AND OUR DISTRIBUTOR AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR DISTRIBUTOR AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

 

11. Limitations of Liability.

WE AND OUR DISTRIBUTOR OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR DISTRIBUTOR OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLAS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR DISTRIBUTOR’S AND LICENSORS’ AGGREGATELIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE ONE MONTH PRECEDING THE CLAIM.

 

12. Modifications to the Agreement.

We may modify this Agreement (including any Policies) at any time by posting a revised version on the CPS Site or by otherwise notifying you in accordance with Section 13.4. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the CPS Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.

 

13. Miscellaneous.

13.1 Confidentiality and Publicity. You will not disclose Nubeprint Confidential Information during the Term or at any time during the 5 year period following the end of the Term.

13.2 Force Majeure. We and our distributor will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

13.3 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.

13.4 Notice.

(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the CPS Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the CPS Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. (b) To Us. To give us notice under this Agreement, you must contact Nubeprint as follows: (i) by email sent to production@nubeprint.com; or (ii) by personal delivery, overnight courier or registered or certified mail to Nube Print S.L., 21 Sancho Davila, Madrid 28028,Spain. We may update the email address or address for notices to us by posting a notice on the CPS Site. Notices provided by personal delivery will be effective immediately. Notices provided by email transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent. (c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English or Spanish language.

13.5 Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

13.6 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.

13.7 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.

13.8 Governing Law; Venue. This Agreement shall be governed by Spanish law. We and or you shall submit any legal questions that could arise in relation to the interpretation and fulfillment of this Agreement to the jurisdiction of the Courts of the city of Madrid, expressly waiving any other applicable jurisdiction.

13.9 Entire Agreement. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of this Agreement contain our and our distributor’s entire obligation regarding the security, privacy and confidentiality of Your Content. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document.

 

14. Definitions.

“Acceptable Use Policy” means the policy currently available at CPS Site, as it may be updated by us from time to time.

“Content” means software (including machine images), data, text, audio, video, images or other content.

“CPS PAYU Pricing” means the pay as you use terms and conditions under which Nubeprint or its distributor will bill you for the Services used.

“CPS” stands for CloudPrinting Suite. It is a complete suite technology for Managed Print Services (MPS). When referring to it, it also includes ZERO as its “lite version”.

“CPS Site” means and any successor or related CPS Site designated by us.

“Documentation” means the developer guides, getting started guides, user guides, quick reference guides, and other technical and operations manuals and specifications for the Services located at the CPS Site.

“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Service Offerings under your account.

“Nubeprint Confidential Information” means all nonpublic information disclosed by us, our distributor, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Nubeprint Confidential Information includes: (a) nonpublic information relating to our technology, customers, and other business affairs; (b) system information disclaimed to you under the protection of an account and password; and (c) the nature, content and existence of any discussions or negotiations between you and us or our distributor.

“Nubeprint Content” means Content we or any of our distributor make available in connection with the Services or on the CPS Site to allow access to and use of the Services, including Documentation; sample code; software libraries; command line tools; and other related technology.

“Policies” means the Terms of Use, all restrictions described on the CPS Site, and any other policy or terms referenced in or incorporated into this Agreement. Policies does not include whitepapers or other marketing materials referenced on the CPS Site.

“Service” means each of the web services made available by us, including those web services described in the Service Terms.

“Service Level Agreement” means all service level agreements that we offer with respect to the Services and post on the CPS Site, as they may be updated by us from time to time.

“Service Offerings” means the Services, the access to a dedicated CPS system, the maintenance of CPS, the support to your or your end-user related questions, and any other product or service provided by us under this Agreement. Service Offerings do not include Third Party Content.

“Service Terms” means the rights and restrictions for particular Services as specified in the Terms of Use document as they may be updated by us from time to time.

“Suggestions” means all suggested improvements to the Service Offerings that you provide to us.

“Term” means the term of this Agreement described in Section 7.1.

“Terms of Use” means the terms of use posted on the CPS Site as they may be updated by us from time to time.

“Third Party Content” means Content made available to you by any third party on the CPS Site or in conjunction with the Services.

“Your Content” means Content you or any End User (a) run on the Services, (b) cause to interface with the Services, or (c) upload to the Services under your account.