This Cloista Online Customer Agreement ("Agreement") is entered into by and between Cloista Pty Ltd ("Cloista") and the entity or person placing an order for or accessing the Service ("Customer" or "you"). This Agreement consists of the terms and conditions set forth below and any Cloista ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Forms"). If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
You acknowledge and agree that Cloista may modify the terms and conditions of this Agreement at any time in accordance with Section 12 (Modifications to Agreement).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. Cloista Service
- Cloista Code
- Access to the Service
- Use Restrictions
- Storage and Processing of Customer Data
The Service acts as a central hub for Customer Data, allowing Customer to collect Customer Data from its selected sources ("Sources"), such as its own or third-party websites or properties, and send the Customer Data to Customer’s chosen destinations ("Destinations"), such as Customer’s databases or its accounts with third-party applications or services, for Customer’s further use. The supported Sources and Destinations are identified in the Documentation. As further described below and in the Documentation, Customer maintains control over which Sources and Destinations it uses with the Service, as well as the types and content of Customer Data it shares between its Sources and Destinations.
For Sources owned or controlled by Customer ("Customer Properties"), Customer will enable the collection of Customer Data by implementing Cloista’s SDK or other code ("Cloista Code") on the Customer Properties.
Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Service to a third party; (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) use or attempt to use the Service for competitive analysis or benchmarking; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Cloista); (e) copy, modify or create any derivative work of the Service or any Documentation; (f) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); or (g) publicly disseminate information regarding the performance of the Service.
Cloista may store certain Customer Data submitted from Sources to enable various features and functionality of the Service, including for "reprocess" and re-sending of Customer Data to Destinations at Customer’s direction. Customer acknowledges that Customer Data transmitted through the Service may be stored and processed by Cloista in the United States or in other countries in which Cloista or its subcontractors maintain facilities.
2. SERVICE PLANS AND BETA RELEASES
- Beta Releases
From time to time, Cloista may grant Customer access to "alpha", "beta", or other early-stage products ("Beta Releases"). While Cloista may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement,CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH CLOISTA WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CUSTOMER’S SOLE RISK.
Cloista makes no promises that future versions of a Beta Release will be released. Cloista may terminate Customer’s right to use any Beta Release at any time for any reason or no reason in Cloista’s sole discretion, without liability.
3. FEES AND PAYMENT
- Fees and Payment
All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly Paid Plans, Customer will pay all fees at the end of the month and (ii) for annual Paid Plans, Customer will pay all fees within thirty (30) days of invoice. Except as expressly set forth in Section 12 (Modifications to Agreement), all fees are non-refundable. Cloista reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Cloista. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, Cloista reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees monthly in arrears.
4. CUSTOMER OBLIGATIONS
- Data Collection
- Rights in Customer Data
- No Sensitive Personal Information
- Indemnification by Customer
Subject to this Agreement and as further described in the Documentation, Customer may configure the Customer Data elements to be collected from Sources and shared with different Destinations. In some instances, as referenced in the Service dashboard and Documentation, enabling a third-party Source involves implementing the third-party provider’s own SDK or code on Customer Properties. As a result, in these cases, certain default data designated by that Source’s provider may be sent directly to Customer’s accounts with that Source, rather than passing through the Service.
Customer is solely responsible for the accuracy, content and legality of all Customer Data and agrees to comply with all applicable Laws in its use of the Service. Customer represents and warrants to Cloista that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting Cloista the rights in Section 6.1), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations. By enabling use of the Service with any Source or Destination, Customer authorizes Cloista to access Customer’s accounts with such Source or Destination for the purposes described in this Agreement. Cloista may also disclose that Customer is a customer of Cloista and related technical Service data to providers of third-party Sources and Destinations used by Customer with the Service.
Customer specifically agrees not to use the Service to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Cloista is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Service is neither HIPAA nor PCI DSS compliant. Cloista shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
Customer shall indemnify, defend and hold harmless Cloista from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Sections 4.2 (Rights in Customer Data) or 4.3 (No Sensitive Personal Information). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Cloista at Customer’s expense.
Cloista agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Data. However, Cloista shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Cloista’s control.
- Customer Data
- Cloista Technology
- Aggregated Anonymous Data
As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Cloista. Subject to the terms of this Agreement, Customer hereby grants to Cloista a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Service to Customer.
This is a subscription agreement for access to and use of the Service. Customer agrees that Cloista or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the Service or any Cloista technology are granted to Customer.
Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Cloista product or service to Cloista ("Feedback"). Cloista may freely use or exploit Feedback in connection with any of its products or services.
Notwithstanding anything to the contrary herein, Customer agrees that Cloista may obtain and aggregate technical and other data about Customer’s use of the Service that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and Cloista may use the Aggregated Anonymous Data to analyze, improve, support and operate the Service and for distribution in general benchmarking data and industry reports. For clarity, this Section 6.4 does not give Cloista the right to identify Customer as the source of any Aggregated Anonymous Data.
7. TERM AND TERMINATION; SUSPENSION
- Termination for Cause
- Effect of Termination
- Suspension of Service
This Agreement is effective as of the Effective Date and will continue until terminated.
Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section 7.2 limits Cloista’s right to terminate or suspend any Developer Plan or Trial Plan as set forth in Section 2.3 (Developer Plans and Trial Plans).
Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service (including any and all related Cloista technology), cease distributing any Cloista Code installed on Customer Properties, and delete (or, at Cloista’s request, return) any and all copies of the Documentation, any Cloista passwords or access codes and any other Cloista Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Service, and that Cloista may delete any such data as may have been stored by Cloista at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
In addition to Cloista’s termination and other rights under this Agreement, Cloista reserves the right to suspend Customer’s access to the Service (and any related services), in whole or in part, without liability to Customer and with immediate effect: (i) if Customer’s account is thirty (30) days or more overdue; (ii) if Customer exceeds any scope of use restrictions set forth in the applicable Order Form; (iii) if Customer has breached its express obligations under Sections 1.iv (Use Restrictions) or 4 (Customer Obligations); or (iv) to prevent harm to the Service or other Cloista customers.
The following Sections shall survive any expiration or termination of this Agreement: 1.iv (Use Restrictions), the disclaimers in Section 2.i (Beta Releases), 3 (Fees and Payment), 4.iv (Indemnification by Customer), 6 (Ownership), 7 (Term and Termination; Suspension), 8 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (Modifications to Agreement) and 13 (General Terms).
8. WARRANTY DISCLAIMER
- Warranty Disclaimer
THE SERVICE AND ALL RELATED SERVICES ARE PROVIDED "AS IS". NEITHER CLOISTA NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CLOISTA DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES CLOISTA WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND CLOISTA TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. CLOISTA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CLOISTA. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
9. LIMITATION OF REMEDIES AND DAMAGES
- Consequential Damages Waiver
- Liability Cap
- Excluded Claims
- Nature of Claims and Failure of Essential Purpose
EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
CLOISTA’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO CLOISTA DURING THE PRIOR SIX (6) MONTHS UNDER THIS AGREEMENT.
"Excluded Claims" means (a) any claim arising from Customer’s breach of Section 1.5 (Use Restrictions); or (b) any claim arising under Section 4 (Customer Obligations).
The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. CONFIDENTIAL INFORMATION
- Confidential Information
We value your information and take reasonable precautions to protect it. While we take reasonable steps to preserve the security of your information, please be aware that we can’t promise that your use of Cloista will be confidential, and we can’t promise that any information you provide to us is perfectly secure. While using Cloista, you may also become aware of confidential information about us, or someone else. You promise to not disclose any confidential information made available to you through Cloista to any other person.
Customer agrees to participate in reasonable marketing activities that promote the benefits of the Service to other potential customers and to use of Customer’s name and logo on Cloista’s web site and in Cloista promotional materials.Customer agrees that Cloista may disclose Customer as a customer of Cloista.
12. MODIFICATIONS TO AGREEMENT
- Modifications to Agreement
Cloista may modify the terms and conditions of this Agreement (including Service pricing and plans) from time to time, with notice given to Customer by email or through the Service. If Customer has a Developer Plan or a Trial Plan, then any modifications will become effective immediately, and if Customer disagrees with the modifications, Customer’s exclusive remedy is to terminate this Agreement and cease using the Service. If Customer has a Paid Plan, Customer must notify Cloista within thirty (30) days of notice of the modifications that Customer does not agree to such changes, and Cloista (at its option and as Customer’s exclusive remedy) may either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. Upon any changes to this Agreement, Customer may be required to click to agree to the modified Agreement in order to continue using the Service, and in any event continued use of the Service after the modifications take effect constitutes Customer’s acceptance of the modifications.
13. GENERAL TERMS
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Cloista may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Cloista’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
- "Cloista" Cloista Pty Ltd (ABN 30 625 026 691)
- "Customer Data" means any data that Customer submits to the Service, including data that it collects from Customer Properties or retrieves from other Sources through the Service.
- "Documentation" means the end user technical documentation provided with the Service, as may be modified from time to time.
- "Laws" means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
- "Order Form" is defined above.
- "Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); (iii) any information deemed to be "sensitive personal data" of an EU citizen (as such term is defined in EU Data Protection Directive 95/46/EC) or (iv) any other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or other Laws.
- "Service" means the specific Cloista proprietary hosted service solution(s) specified on an Order Form, including the Cloista dashboard and any related Cloista Code and API(s).