1. Your Agreement with dotCloud
1.1 Your use of the dotCloud service is governed by this agreement (the "Terms"). "cloudControl" means cloudControl, Inc., located at 530 Lytton Avenue, Palo Alto, CA 94301, United States, and its subsidiaries or affiliates involved in providing the Services. The “Services” means the services cloudControl makes available through this website and under the dotCloud brand name, including this website, the dotCloud cloud computing platform, the dotCloud API, the Applications, the Add-ons, and any other software or services offered by dotCloud in connection to any of the above-listed items. The Add-ons are additional features, functionality, and services offered by its third-party partners through the Services. The Applications are software applications developed by developers and offered to users using the Services.
1.2 In order to use the Services as a developer or a user, you must first agree to the Terms. You can agree to the Terms by actually using the Services. You understand and agree that cloudControl will treat your use of the Services as acceptance of the Terms.
1.3 You may not use the Services if you are a person barred from receiving the Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Services. You affirm that you are over the age of 18 or have the permission of your parent or guardian to use the Services. The Services are not intended for children under 13.
1.4 You agree your purchase of any Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by cloudControl or any of its affiliates regarding future functionality or features.
2. Your Account and Use of the Services
2.1 You must provide accurate and complete registration information any time you register to use the Services. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify cloudControl immediately.
2.2 Your use of the Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3 You agree not to (a) access (or attempt to access) the administrative interface of the Services by any means other than through the interface that is provided by cloudControl in connection with the Services, unless you have been permitted to do so in a separate written agreement with cloudControl, or (b) engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
2.4 cloudControl has certain soft and hard limits in using its Service for which just must comply. Please refer to our Quotas and Limits Policy for additional information. The Services do not permit you to exceed the hard usage limits. cloudControl reserves the right to enforce soft usage limits in its sole discretion, which may result in cloudControl serving a “quota exceeded” page to you or to users of your Application (as defined below) or website, which is provided through the Services (“End Users”). If you continually exceed the usage limits, cloudControl, in its sole discretion, may terminate your developer and/or user account.
2.5 You may use the Services only to develop and run Applications on the dotCloud platform. You may not access the Services for the purpose of bringing an intellectual property infringement claim against cloudControl or for the purpose of creating a product or service competitive with the Services.
3. Uptime Commitment and Support.
3.1 cloudControl will use commercially reasonable efforts to operate the dotCloud computing platform with an annual average uptime of 98%, excluding downtime for maintenance, installing software updates and when the web server cannot be accessed via the internet due to difficulties that are outside of the control of cloudControl (such as force majeure event, third party acts or omission, or similar circumstances).
3.2 You may increase the annual average uptime percentage by entering into a Support Plan as specified in Sec.3.3 and additionally increasing your numbers of containers. Your annual average uptime commitment will then increase as specified in the following table, based on the number of containers you use, excluding downtime for maintenance, installing software updates and when the web server cannot be accessed via the internet due to difficulties that are outside of the control of cloudControl (such as force majeure event, third party acts or omission, or similar circumstances).
Number of containers
Minimum availability in % of the annual mean
3 or more
3.3 cloudControl provides support for the Services pursuant to its Support Policy available at http://www.dotcloudapp.com/service-support-policy, which is incorporated herein by this reference and which may be updated from time to time.
4. Policies and Privacy
4.1 By using the Services, you agree to comply with the dotCloud Acceptable Use Policy available at http://www.dotcloudapp.com/acceptable-use-policy, which is incorporated herein by this reference and which may be updated from time to time.
4.3 If you are a developer, you agree that you will protect the privacy and legal rights of the End Users of your Application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the End Users aware that the information will be available to your application and to cloudControl.
5. Fees for Use of the Services
5.1 Subject to the Terms, the Services are provided to you without charge per Deployment up to 750 memory hours (“meh”) per month. One meh equals one 128MB unit for one hour. For Deployment used beyond such basic use, cloudControl charges fees on the basis of consumed meh. The pricing for additional resource use and services can be found at http://dotcloud.com/pricing.
5.2 For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in cloudControl fees and payment policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys’ fees cloudControl incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on cloudControl's measurements of your use of the Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of cloudControl and only in the form of credit for the cloudControl Services. Nothing in these Terms obligates cloudControl to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to cloudControl may be shared by cloudControl with companies who work on cloudControl's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to cloudControl and servicing your account. cloudControl may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. cloudControl shall not be liable for any use or disclosure of such information by such third parties. cloudControl reserves the right to discontinue the provision of the cloudControl Services to you for any late payments.
5.3 cloudControl may change its fees and payment policies for the Services by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL cloudControl may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
5.4 You may not develop multiple Applications to simulate or act as a single application or otherwise access the Services in a manner intended to avoid incurring fees.
6. Content on the Services and Take Down Obligations
6.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content." The term Content shall specifically exclude the web application that you create using the Services and any source code written by you to be used with the Services (collectively, "Applications"). When you deploy an Application on the cloudControl platform, it becomes a “Deployment”. You can deploy several versions of an Application simultaneously (e.g., to have a live Deployment and one or more testing Deployments).
6.2 cloudControl reserves the right (but shall have no obligation) to remove any or all Content from the Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take-down request from cloudControl. In the event that you elect not to comply with a request from cloudControl to remove certain Content, cloudControl reserves the right to remove such Content or to disable your Applications.
6.3 In the event that you become aware of any violation of the Acceptable Use Policy by an End User of your Applications or Deployments, you shall immediately terminate such End User's account on your Applications or Deployments. cloudControl reserves the right to disable your Applications and Deployments in response to a violation or suspected violation of the Acceptable Use Policy.
6.4 You agree that you are solely responsible for, and that cloudControl has no responsibility to you or to any third party related to, your Applications and Deployments or any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which cloudControl may suffer) by doing so.
6.5 You agree that cloudControl has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Applications, Deployments and any Content.
7. Proprietary Rights
7.1 You acknowledge and agree that cloudControl, or cloudControl's licensors, own all legal right, title and interest in and to the Services, including any intellectual property rights that subsist in the Services, regardless of whether those rights are registered and wherever in the world those rights may exist.
7.2 Except as provided in Section 8, cloudControl acknowledges and agrees that, under these Terms, cloudControl obtains no right, title or interest from you, or your licensors, in or to any Content, Applications or Deployments that you create, submit, post, transmit or display on, or through, the Services, including any intellectual property rights that subsist in that Content, Applications and Deployments, regardless of whether those rights are registered and wherever in the world those rights may exist. Unless you have agreed otherwise in writing with cloudControl, you agree that you are responsible for protecting and enforcing those rights and that cloudControl has no obligation to do so on your behalf.
8. License from cloudControl and Restrictions
8.1 cloudControl gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by cloudControl as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by cloudControl, in the manner permitted by these Terms.
8.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services or any part thereof, unless this is expressly permitted by law; or (b) attempt to disable or circumvent any security mechanisms used by the Services or any Deployment running on the Services.
8.3 Open source software licenses for components of the Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with cloudControl for the use of the components of the Services released under an open source license.
8.4 cloudControl hereby grants you a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the cloudControl trademarks, which is limited to the dotCloud name and logo (the “Marks”), for the sole purpose of promoting or advertising that you use the Services Any use of the Marks is be subject to cloudControl’s right to review and approve or reject in advance of each proposed use of its Marks, and will conform with any trademark usage guidelines, polices, or requirements provided by cloudControl. Any rights not expressly licensed herein are reserved by the cloudControl, and all use by you of the Marks, (including all goodwill associated therewith), will be on behalf of and accrue to the benefit of cloudControl. You will not take any action that would conflict with or be contrary to cloudControl’s rights and interest in Marks. Nothing contained herein will be deemed to grant you any right, title or interest in or to the Marks other than the limited license rights granted herein. Upon termination of your account, you will immediately cease to use the Marks except as permitted pursuant to another written agreement between the parties. cloudControl shall have the right to modify, delete or substitute alternative marks for the Marks and require you to cease use of the Marks at any time at its discretion. At no time during or after the termination of your account will you challenge or assist others to challenge the Marks or the registration thereof. You shall not adopt, use or attempt to register, whether as a corporate name, domain name, product name, trademark, service mark or other indication of origin, any of the Marks or any mark that is confusingly similar to or will dilute the distinctive nature of the Marks.
9. License from You
9.1 cloudControl claims no ownership or control over any Content, Application or Deployment. You retain copyright and any other rights you already hold in the Content, Application and/or Deployment, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Services or by creating an Application or Deployment through the use of the Service, you give cloudControl a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content, Application or Deployment for the sole purpose of enabling cloudControl to provide you or any of your applicable End Users with the Services.
9.2 By adding a collaborator to your Application and/or Deployment, you hereby grant to such collaborator a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze your Content, Application or Deployment as permitted by the relevant Services functionality or features for the sole purpose of collaborating on development of the Application and/or Deployment.
9.3 You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation ideas about how to improve the Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place cloudControl under any fiduciary or other obligation, that cloudControl is free to use the Idea without any additional compensation to you, and that cloudControl is free to disclose the Idea on a non-confidential basis or otherwise to anyone.
9.4 You agree that cloudControl, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and website listings (including links to your website) for the purpose of advertising or publicizing your use of the Services.
10.1 cloudControl may make Add-ons available through the Service. Your use of Add-ons is subject to these Terms and to any applicable fees. You acknowledge for each Add-on you subscribe to or purchase through the Services, these Terms constitute a binding agreement between you and the third-party licensor of such Add-on (the “Add-on Provider”) only. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Provider of that Add-on; cloudControl is acting as agent for the Add-on Provider in providing each such Add-on to you; cloudControl is not a party to the license between you and the Add-on Provider with respect to that Add-on; and cloudControl is not responsible for that Add-on, the content therein, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that cloudControl is a third-party beneficiary of the agreement between you and the Add-on Provider for each Add-on, and that cloudControl will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.
10.2 By subscribing to or purchasing an Add-on, you grant cloudControl permission to share your Application, Deployment, Content, and End User information with the Add-on Provider, as necessary in order to provide you the Add-on.
10.3 If you are a developer, the license granted to you to use any Add-on as part of your Application is personal to you, and is not sublicensable to your End Users. You may not provide or resell Add-ons to others except as integrated into your Applications.
11.1 cloudControl may, and you grant us permission to, make recommendations via the Services for products or services we think may be of interest to you based on your Application(s), Deployment(s), Content, and/or use of the Services.
12. Modification and Termination of the Services
12.1 cloudControl is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which cloudControl provides, may change from time to time without prior notice to you, subject to the terms in Section 4.3. Changes to the form and nature of the Services will be effective with respect to all versions of the Services. Examples of changes to the form and nature of the Services, include without limitation, changes to fee and payment policies, security patches, added functionality, and other enhancements.
12.2 You may terminate these Terms at any time by canceling your account on the Services. You will not receive any refunds if you cancel your account.
12.3 You agree that cloudControl, in its sole discretion and for any or no reason, may terminate your account or any part thereof upon ninety (90) days’ written notice (email being sufficient), which will be effective at the end of the calendar month in which the 90th day after the date of the notice falls. You agree that cloudControl will not be liable to you or to any third party as a result of any termination of your access to the Services. Notwithstanding the foregoing, if you violate these Terms, cloudControl may suspend your right to use the Services without notice.
12.4 cloudControl reserves the right to delete any Application and/or Deployment that show no active usage (i.e. no dynamic requests) for more than ninety (90) consecutive days and use free resources only in order to reduce the security risks caused by unmaintained software. In those cases, you will be informed via email at least thirty (30) days before deletion and can take countermeasures by actively using the Application and/or Deployment. If you fail to take any action within the aforementioned time frame, cloudControl may delete the inactive Application and/or Deployment.
12.5 You are solely responsible for exporting your Content, and Application(s) and Deployment(s) from the Services prior to termination of your account for any reason; provided, that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content, Application(s) and Deployment(s).
12.6 Upon any termination of the Services or your account these Terms will also terminate, but Sections 7.1, 12, 13, 14, 15, and 19 shall continue to be effective after these Terms are terminated.
13. DISCLAIMER OF WARRANTIES
13.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 13 AND 14, SHALL EXCLUDE OR LIMIT CLOUDCONTROL'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
13.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE."
13.3 CLOUDCONTROL, ITS AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLOUDCONTROL, ITS AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICES WILL BE ACCURATE.
14. LIMITATION OF LIABILITY
14.1 SUBJECT TO SECTION 13.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT CLOUDCONTROL, ITS AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
14.2 THE LIMITATIONS ON CLOUDCONTROL'S LIABILITY TO YOU IN PARAGRAPH 14.1 ABOVE SHALL APPLY WHETHER OR NOT CLOUDCONTROL HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
15.1 You agree to hold harmless and indemnify cloudControl, and its affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third-party claim arising from or in any way related to (a) your breach of these Terms, (b) your use of the Services, (c) your violation of applicable laws, rules or regulations in connection with your use of the Services, or (d) your Content, Application(s) or Deployment(s), including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, cloudControl will provide you with written notice of such claim, suit or action.
16. Copyright Policy
16.1 You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is cloudControl's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down Content in your Application(s) and/or Deployment(s) or, if necessary, the Application(s) and/or Deployment(s) itself, upon receipt of a valid DMCA notice. For more information, please go to http://www.dotcloudapp.com/dmca.
17. Other Content
17.1 The Services may include hyperlinks to other websites, content, resources or email content. cloudControl may have no control over any external sites or resources, which are provided by companies or persons other than cloudControl.
17.2 You acknowledge and agree that cloudControl is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such external sites or resources.
17.3 You acknowledge and agree that cloudControl is not liable for any loss or damage that may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such external sites or resources.
18. Changes to the Terms
18.1 cloudControl may make changes to these Terms from time to time. If cloudControl changes these Terms in any substantive way, cloudControl will give you at least four (4) weeks’ notice before such substantive changes take effect, during which period of time you may reject the changes by terminating your account.
18.2 You understand and agree that if you use the Services after the date on which these Terms have changed, cloudControl will treat your use of the Services as acceptance of the updated Terms.
19. General Legal Terms
19.1 These Terms constitute the entire agreement between you and cloudControl and govern your use of the Services (but excluding any services which cloudControl may provide to you under a separate written agreement), and completely replace any prior agreements between you and cloudControl in relation to the Services.
19.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
19.3 You agree that cloudControl may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Services. By providing cloudControl your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
19.4 You agree that if cloudControl does not exercise or enforce any legal right or remedy which is contained in these Terms (or which cloudControl has the benefit of under any applicable law), this will not be taken to be a formal waiver of cloudControl's rights and that those rights or remedies will still be available to cloudControl.
19.5 cloudControl shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
19.6 These Terms, and your relationship with cloudControl under these Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and cloudControl agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from the Terms.
19.7 Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, cloudControl may assign the entirety of its rights and obligations under these Terms, without your consent, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of the Services upon written notice to the assigning party.