OneCloud Desktop Terms and Conditions

 

These Terms of Service, and all of the documents which they make a reference to, constitute a single agreement (“Agreement”) between One Source Communications, Inc., incorporated under the laws of South Carolina, located at 3926 Wesley St Suite 703, Myrtle Beach SC 29579 (“One Source”, “us”, “we” or “our”), and any user or subscriber, physical or legal person, consumer or business, governed by private or public law, accessing, trialing or subscribing to the Cloud Service or the Website (“Customer” or “you”). The Customer and One Source Communications are individually and jointly known as the “Party” or “Parties”, respectively.

 

1. DEFINITIONS

1.1 “Customer” means a user that registers a Customer Account.

1.2 “Customer Account” means an account created by a Customer with login credentials allowing the Customer to manage all its Cloud Services, and in the case of a reseller, the End Users, and to subscribe to additional Services.

1.3 “Cloud Services” means any service or product sold by One Source Communications, through the Website or any of its sub-domains and any other product or service provided by us under this Agreement.

1.4 “Content” means software (including machine images), data, text, audio, video, images or other tools or content that a Customer or any End User (a) operate on the Cloud Services, (b) may use that would interfere with the Cloud Services, or (c) upload to the Cloud Services from the Customer Account or otherwise transfer, process, use or store in connection with the Customer Account.

1.5 “Effective Date” means the first day of your billing cycle as per the Cloud Service Subscription Plan.

1.6 “End User” means any individual or entity that directly or indirectly through a Customer Account: (a) accesses or uses the Cloud Services under a Subscription Plan (b) accesses or uses Third Party Content; or (c) uploads Content. For clarity, an “End User” is only deemed a Customer if they can access or use the Cloud Services or any Content under a Customer Account as per a Subscription Plan.

1.7 “Subscription Plan” means the plan you select when subscribing to the Cloud Services.

1.8 “Suggestions” means all suggested improvements to the Cloud Services that you provide to us

1.9 “Term” means the term of the then active Subscription Plan.

1.10 “Third Party Content” means any software (including machine images), data, text, audio, video, images or other content made available to Customer by any third party in or through the Cloud Services or Website.

1.11 “Website” means https://onesourcecom.cloudworkstations.com or another URL we may designate.

 

2. USE OF THE CLOUD SERVICES

2.1 Visitors and Customers. A user can visit the Website in a visitor (non-registered) capacity; provided, to use the Cloud Services, the user must register a Customer Account. Upon registration, the Customer will receive log-in credentials to the Customer Account to access the Cloud Services. The Customer shall have sole responsibility for all activities relating to such Customer’s Account and shall immediately inform One Source Communications of any unauthorized use of the Customer’s Account.

2.2 Right of Use. Subject to the terms and conditions of this Agreement, One Source Communications hereby grants the Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Website and Cloud Services solely in accordance with this Agreement, the limitations of the Subscription Plan and for your own internal business purposes (unless your Customer Account is designated as a reseller account). The Customer represents and warrants that: (a) all registration information submitted is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are at least 18 years of age and have the capacity and authority to enter into this Agreement; and (d) your use of the Cloud Services does not and will not violate any applicable law or regulation. If you are under 18, you may not register or attempt to register for Cloud Services.

2.3 Restrictions. You may not, directly or indirectly, (a) sublicense, resell (unless your Customer Account is designated as a reseller account), transfer, assign, time share or otherwise commercially exploit or make the Cloud Services or any portion thereof available to any third party; (b) use the Cloud Services for any purpose or in any manner that is unlawful (including without limitation in violation of any data, privacy, anti-bribery or export control laws) or is prohibited by this Agreement; (c) to engage in crypto currency mining (d) read or attempt to read or derive the source code of the Cloud Services or the software underlying the Cloud Services (except as permitted by law); (e) work around any technical limitations in the Cloud Services; (f) interfere or attempt to interfere with or disrupt the integrity, security, functionality or performance of the Cloud Services or its components; (g) use the Cloud Services in any manner that damages or impairs the Website or interferes with any other party’s use of the Cloud Services; (h) modify, translate, adapt, create or attempt to create any derivative works of the Cloud Services; (i) access the Cloud Services if you are a competitor of ours or use the Cloud Services to build a similar or competitive work; (j) hack or otherwise attempt to gain unauthorized access to the Cloud Services or its related systems or networks; or (k) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser. Customers or End Users may not attempt to tamper with any (i) license activation or (ii) software One Source Communications pre-loads or pre-installed software on the Cloud Services (including the operating system software), in a way that is not part of normal operations or that attempts to circumvent charges for the Cloud Service. One Source Communications may terminate the account of any Customer, and block access of any End User, if One Source Communications, in acting in good faith, determines that there is violation of this section. For clarity sake, crypto currency mining, denial of service attacks, spamming or any other activity designed to, or capable of disrupting, damaging or limiting the functionality of any Cloud Services is strictly prohibited. This does not affect the Customer’s right to use consensus mechanisms such as “proof of stake” to verify transactions in the blockchain, provided that any such mechanisms do not fall under the restrictions set forth above.

2.4 Third Party Content. The Cloud Service may include or may make available Third-Party Content directly to Customer. The Customer is responsible for evaluating whether to use the Third-Party Content and is subject to the pricing, terms and conditions and privacy policies of the third-party provider. One Source Communications does not screen, audit or endorse any Third-Party Content. One Source Communications shall not assume any responsibility for Third Party Content. One Source Communications may terminate the account of any Customer, and block access of any End User, who infringes any One Source Communications or third-party intellectual property rights or misuses the limited license in granted herein.

 

3. TRIAL OF THE CLOUD SERVICE

3.1 Trial Services. A user may have access to certain limited functionality within the Cloud Service that One Source Communications elects to make available on a free trial basis or paid trial, depending on the desired level of support or customization (“Trial Services”) through the Website. The Trial Services will be free of charge until the earlier of (a) the end of the Trial Service period for which the user registered, or (b) the start date of any Subscription Plan.

3.2 Warranty; Loss of Data. ANY DATA ENTERED INTO THE CLOUD SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE CLOUD SERVICES BY OR FOR CUSTOMER, DURING THE TRIAL SERVICES WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION PLAN TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL SERVICES, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL SERVICES PERIOD. NOTWITHSTANDING SECTION 10 (WARRANTY DISCLAIMER & LIMITATION OF LIABILITY), DURING THE TRIAL SERVICES, THE CLOUD SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

 

4. SECURITY AND DATA PRIVACY

4.1 Privacy Policy. By using the Cloud Services, you authorize One Source Communications to obtain, process, store, use and transmit your personal data in accordance with our Privacy Policy.

5. CUSTOMER RESPONSIBILITIES

5.1 Content. The Customer is solely responsible for the development, operation, maintenance, and use of the Content. For example, and by no means being an exhaustive list, Customer is responsible for the technical operation of the Content, including ensuring that the Content does not block incoming connection requests from Customer, End User, or the One Source Communications management algorithms under the internal network.

5.2 Content Security. The Customer is responsible for configuring and using the Cloud Services and taking appropriate measures to maintain applicable security, protection, and backup of the Content, which may include the use of encryption technology to protect the Content from unauthorized access and routine archiving the Content.

5.3 Customer Account Credentials. Credentials are for internal use only and Customer may not sell, transfer, or sublicense such credentials to any other entity or person, except that Customer may provide limited access to the Subscription Plan of the Cloud Services to other registered accounts if Customer’s Account is designated as a reseller account.

5.4 End User Violations. The Customer will be deemed to have taken any action that the Customer permits, assists or facilitates any person or entity to take related to this Agreement, the Content or use of Cloud Services. The Customer is responsible for End Users’ use of the Content and the Cloud Services. The Customer will ensure that all End Users comply with the obligations under this Agreement and that the terms of the agreement with each End User are consistent with this Agreement. If the Customer becomes aware of any violation of any obligations under this Agreement by an End User, the Customer shall immediately report such violation to One Source Communications, terminate such End User’s access to the Content and the Cloud Services.

5.5 End User Support. If the Customer Account is registered as a reseller account and the Customer manages the Cloud Services on behalf of End User(s), the Customer is responsible for providing support services (if any) to such End Users.

5.6 Licensing the operating system. The Customer is responsible for properly licensing the operating system that is provided with their cloud desktop. If your cloud desktop contains a Windows operating system, you must license it according to Microsoft’s terms. One Source Communications is not authorized to license desktop versions of the Microsoft Windows operating system. One Source Communications will terminate your Cloud Service if we detect that you have not properly licensed the operating system of your cloud desktop.

5.7 Microsoft Licensed Software. Customer is required to purchase Microsoft Software with Software Assurance, or maintain an active license subscription, for eligible Microsoft software products that Customer will assign to non-physically dedicated hardware. Customer agrees to assist One Source Communications in auditing the consumption of Microsoft licensed software, in use by Customer specifically on non-physically dedicated servers, to establish compliance with Microsoft reporting requirements. If required, Customer agrees to pay for additional software licenses deemed to be in use or to have been in use by customer while under contract with One Source Communications.

Customer acknowledges and understands that One Source Communications provisioning of Microsoft licensed software not provided by One Source Communications is always subject to the Microsoft End User License Terms. Customer agrees to be bound by and abide by the terms and provisions contained in the End User License Terms. One Source Communications may suspend or terminate Customer’s utilization or deployment of the MSFT licensed software immediately if Customer fails to abide by the End User License Terms.

Customer agrees to abide by the Microsoft Product Terms when assigning licenses to One Source Communications shared server environment. In particular, Customer must comply with the Flexible Virtualization Benefit terms; part of the Outsourcing Software Management definition.

5.8 Prohibited Activities.

1. The Customer may not use the Cloud Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”), including:

• Unauthorized Access.Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
• Monitoring of data or traffic on a System without permission.
• Multiple Licenses.Using and or operating multiple Microsoft licenses through or on one virtual machine.
• Falsification of Origin.Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. This prohibition does not include the use of aliases or anonymous remailers.

 

1. The Customer may not implement network connections to any users, hosts, or networks unless the Customer has express permission to do so. Prohibited activities include:

• Monitoring or Crawling.Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
• Denial of Service (DoS).Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
• Intentional Interference.Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
• Operation of Certain Network Services.Operating network services like open proxies, open mail relays, or open recursive domain name servers.
• Crypto Mining.Engaging in crypto currency mining in a way that could harm the Cloud Services or impair anyone else’s use of it.
• Avoiding System Restrictions.Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.

 

5.9 Anti-Spam. You shall not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider.

5.10 Duty to Report. If you become aware of any violation described in this section, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation. We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Agreement.

 

6. SERVICE LEVEL AGREEMENT

6.1 General Support. One Source Communications provides technical support for all Customer Account holders included with the Agreement. To receive technical support, the Customer has the option to fill in the form online under the “Contact” section at www.onesourcecom.com,  email [email protected], or call 843-497-6485. Technical support is provided for matters directly related to Cloud Services and does not include support on third party software or Third-Party Content, or any software that is pre-installed.

6.2 System Maintenance. One Source Communications will use commercially reasonable efforts to ensure that Cloud Services within One Source Communication’s control are available with a monthly uptime percentage of at least 99.95 % (calculated as outlined below), in each case during any monthly billing cycle. Notwithstanding the foregoing, One Source Communications may need to carry out routine maintenance or urgent maintenance or the Cloud Services may become unavailable for reasons not within One Source Communication’s  control. In such case, One Source Communications shall use commercially reasonable efforts to inform the Customer of any downtime and restore the Cloud Services as soon as reasonably practicable. In the event One Source Communications fails to use commercially reasonable efforts and the Cloud Services remain unavailable to Customer for more than three (3) business days of Customer first notifying One Source Communications of such unavailability, Customer will be eligible to receive a Cloud Service Credit. For a Cloud Service to be considered unavailable, it must be inaccessible from the outside and the problem be related exclusively to One Source Communications. For example, Cloud Service is not considered unavailable if third-party software (e.g. firewall) is blocking incoming connections.

6.3 Backup and Recovery

1. Subscription-Based Services: While the backups are performed daily, the duration and frequency of backups, as well as the recovery process, are tied to the subscription level selected by the customer. Upgrading or downgrading your subscription may affect your backup and recovery capabilities.
2. No Guarantee on Data Recovery: While we strive to maintain data integrity and availability, no backup plan offers an absolute guarantee on the success or speed of data recovery. Recovery times are estimated and subject to variation based on external factors beyond our control. We expressly exclude liability for any loss of Data no matter how caused.

6.4 Monthly Uptime Percentage. The monthly uptime percentage is calculated by subtracting from 100% the percentage of minutes during the month in which your Cloud Services was unavailable.

6.5 Cloud Service Credits. A “Cloud Service Credit” is a dollar amount that One Source Communications may credit to an eligible Customer Account. Cloud Service Credits are calculated as a percentage of the total charges paid by the Customer (excluding one-time payments such as third-party licenses) for the Cloud Services. One Source Communications will apply any Cloud Service Credits on the next invoice. At One Source Communication’s discretion, we may issue the Cloud Service Credit to the credit card used to pay for the billing cycle in which the unavailability occurred. Cloud Service Credits will not entitle the Customer to any refund or other payment from One Source Communications. A Cloud Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 USD). Cloud Service Credits may not be transferred or applied to any other account.

Monthly Uptime Percentage	Service Credit Percentage
Less than 99.95% but equal to or greater than 99.0%	10%
Less than 99.0%	30%

 

7. FEES AND PAYMENT

7.1 Fee. You will pay us the applicable fees and charges for use of the Cloud Services in accordance with the Subscription Plan (“Fees”). You agree to pay the Fees monthly or annually in advance according to your Subscription Plan, or as otherwise agreed between you and us, by credit card or another method accepted on the Website. If you decide to pay for the Cloud Services according to the invoice(s), you agree to pay all undisputed invoices upon receipt, unless otherwise mutually agreed between you and us in writing. From receipt, you have three (3) business days to dispute an invoice otherwise it will be deemed accepted. You agree that we may charge interest of 1.5% per month for past due invoices, or the highest rate permitted by law, and you are liable for reasonable attorney fees and collection costs arising from our efforts to collect past due amounts. If the Cloud Services, or portion thereof, are suspended for non-payment, we may charge a re-activation fee to reinstate the Cloud Services. Nothing in this section limits our right to terminate this Agreement for cause. Unless otherwise stated in this Agreement, all payment obligations are non-cancellable, and all Fees paid are non-refundable.

7.2 Invoice and Billing. We will invoice you on the first day of your billing cycle depending on the Subscription Plan. New Subscription Plans (if any) will be charged on a pro rata basis to the number of days remaining to the current billing period, and then added accordingly to your next billing period. If you fail to pay an invoice or make a fraudulent payment we reserve the right to cancel your subscription and access to the Cloud Services, and any data associated with your Subscription Plan or the Cloud Services, upon notice. All invoices and details of Subscription Plans are available in your Customer Account. Any bank fees and charges shall be borne solely by you.

7.3 Fee Change. One Source Communications may increase or add new fees and charges for any existing services by giving the Customer at least 30 days advance notice.

7.4 Taxes. Unless otherwise stated, all fees and charges payable by the Customer are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Customer will provide One Source Communications any information reasonably requested to determine whether One Source Communications are obligated to collect VAT from the Customer, including the Customer’s VAT identification number. If the Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, Customer shall provide a valid tax exemption certificate from the appropriate taxing authority. One Source Communications will apply the tax exemption certificates to charges under the relevant Subscription Plan occurring after the date One Source Communications receives the tax exemption certificates. If any deduction or withholding is required by law, Customer will notify One Source Communications and will pay One Source Communications any additional amounts necessary to ensure that the net amount that One Source Communications receives, after any deduction and withholding, equals the amount One Source Communications would have received if no deduction or withholding had been required. Additionally, Customer will provide One Source Communications with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

 

8. TERM; TERMINATION

8.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect for as long as you access or use the Cloud Services or the Website.

8.2 Subscription Term and Renewal.  Your initial subscription term will be specified in your Agreement and, unless otherwise agreed by One Source Communications in writing, your subscription will automatically renew for the same period on the then-current terms. You may prevent renewal of the subscription by contacting Us in writing 60 days before the expiration of any term.

8.3 Termination for Convenience. You may terminate your Agreement for any reason by notifying One Source Communications in writing. If you terminate for convenience, you are not eligible for a refund on any prepaid but unused Fees and you will continue to have access to the Cloud Services until the Fees are used and all Fees due but unpaid shall become immediately due and payable. The Early Termination Fee will be the total monthly cost on the current Agreement time the number of months remaining in the current term. 

• Termination for Cause

 

• By Either Party. Either party may terminate this Agreement for cause, as to any or all Cloud Service, (i) by providing thirty (30) days’ advance notice to the other party of a curable material breach if such breach remains uncured at the expiration of such notice period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. If we terminate this Agreement for cause, you will promptly pay all unpaid Fees due through the end of the applicable Subscription Plan and no refund shall be due to you.

 

• By Us. We may also terminate this Agreement for cause (i) if our relationship with a third party partner who provides software or other technology we use to provide the Cloud Services expires, terminates or requires us to change the way we provide the software or other technology as part of the Cloud Services, (ii) if we believe providing the Cloud Services could create a substantial economic or technical burden or material security risk for us, (iii) in order to comply with the law or requests of governmental entities, or (iv) if we determine use of the Cloud Services by you or any End Users or our provision of any of the Cloud Services to you or any End Users has become impractical or unfeasible for any legal or regulatory reason.

 

8.5 Temporary Suspension. One Source Communications reserves the right to monitor compliance with this Agreement. One Source Communications may, without prejudice to our rights under this Agreement or applicable law, suspend any Cloud Service, Trial Service, Customer or any End User’s license to access or use any portion or all of the Cloud Services immediately upon notice (which may be electronic) if (a) One Source Communications determine in good faith that the use of the Cloud Services violates any applicable law, the terms of this Agreement or the rights of any third party; (b) we are prohibited by court order or order of another governmental authority from providing access to the Cloud Services; (c) your Account has past due invoices of 90 days or more, or (d)we reasonably determine that the Cloud Services are being used for any abusive, illegal or fraudulent activity that the Cloud Services are subject to a security incident, denial of service attack, or other event that impacts the security of the Cloud Services or any Content. Such suspension may apply to specific jurisdictions, lines of business, a specific customer, End User or a group of End Users.

8.6 Suspension and Termination of a Trial Service. We may suspend, limit, or terminate any Trial Service for any reason at any time without notice.

8.7 Effect of Termination. Upon expiration or termination of this Agreement, including by your cancellation, all your rights or any End User associated with that Customer Account shall terminate immediately. Customer acknowledges and agrees that One Source Communications will permanently erase all your data, Content and information stored on One Source Communications servers within seven (7) days or by the end of the back-up period selected as part of the Agreement. Provided that, One Source Communications may retain copies of such data and information to the extent required by law or as created by automatic computer backup and archived as part of normal computerized archiving systems, maintaining necessary technical and organizational measures. 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.

8.8 Survival. Upon any termination of this Agreement for any reason, all provisions regarding indemnification, warranty, liability and limits thereon, and any provisions which expressly or by their nature are required to survive such termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose.

 

9. PROPRIETARY RIGHTS

9.1 Your Content. As between you and us, you or your licensors own all rights, title, and interest in and to your content. Except as provided in this Section 9, we obtain no rights under this Agreement from you or any End User to the Content, including any related intellectual property rights. You consent to our use or disclosure of the Content to provide the Cloud Services to you and any End Users or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).

9.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to the Content; and (b) you have all rights in your content necessary to grant the rights contemplated by this Agreement.

9.3 One Source Communications Intellectual Property Rights. You agree that all rights, title and interest in and to the Cloud Services, the Website, the technology underlying each of them, all modifications and any work product we create relating thereto, and all intellectual property rights in each of the foregoing, including, without limitation, patent, copyright, trademark, moral rights, rights in know-how and trade secrets (and any licenses in connection with any of them) through the world, whether or not registered or capable of registration, and whether subsisting in any specific country or countries or any other part of the world, are and will remain the sole and exclusive property of One Source Communications, its licensors or affiliates. Except for access to the Services, no other rights are granted to you with respect to the Website or Cloud Services. One Source Communications reserves all rights not expressly granted in this Agreement.

9.4 Suggestions. If you provide any suggestions to us or our affiliates, we will own all rights, title, and interest in and to the suggestions, even if you have designated the suggestions as confidential. We and our affiliates will be entitled to use the suggestions without restriction. You hereby irrevocably assign to us all rights, 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.

 

10. WARRANTY DISCLAIMER & LIMITATION OF LIABILITY.

10.1 Disclaimers. THE CLOUD SERVICES ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE CLOUD SERVICES OR THE THIRD-PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE CLOUD SERVICES OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES 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.

10.2 Warranty Disclaimer with Regard to Third Content. One Source Communications and its affiliates disclaim any liability with respect to any Third-Party Content that you use and for any claim arising out of One Source Communication’s authorized use of the Content.

10.3 Limitation of Liability. One Source Communications and its affiliates 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 affiliates or licensors will be responsible for any compensation, reimbursement, or damages arising in connection with: (a) your inability to use the Cloud Services, including as a result of any (i) termination or suspension of this Agreement or your use of or access to the Cloud Services, (ii) our discontinuation of any or all of the Cloud Services, or, (iii) without limiting any obligations under section 6 (Service Level Agreement), any unanticipated or unscheduled downtime of all or a portion of the Cloud 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 Cloud Services; or (d) any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of the Content or other data. In any case, us and our affiliates and licensors’ aggregate liability under this Agreement will be limited to the amount you actually pay us under this Agreement for the Cloud Services that gave rise to the claim during the 12 months preceding the claim.

 

11. INDEMNITY

You will defend, indemnify, and hold harmless One Source Communications, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from or relating to any third party claim concerning: (a) your or any End Users’ use of the Cloud Services (including any activities under your Customer Account and use thereof by your employees, contractors, agents or personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; (c) the Content or the combination of the Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by the Content or by the use, development, design, production, advertising or marketing of the Content; or (d) a dispute between you and any End User. If One Source Communications, our affiliates or licensors 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. We will promptly notify you of any such claim, but our failure to promptly notify you will only affect your obligations under this Agreement to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our prior written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided you obtain our prior written consent before entering into any settlement. We may also assume control of the exclusive defense, control and settlement of the claim at any time.

 

12. MISCELLANEOUS

12.1 Confidentiality. All confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated in writing as confidential (“Confidential Information”) will be safeguarded by the Receiving Party to the same extent that the Receiving Party safeguards its own information of like kind but using not less than a reasonable degree of care. The Receiving Party shall not use Confidential Information for any purpose outside the scope of this Agreement or disclose Confidential Information to any third party (except as explicitly stated in our Privacy Policy). The Receiving Party’s obligations under this section shall not apply to information which is publicly available through no fault of the Receiving Party, already in Receiving Party’s possession without obligation of confidentiality, rightfully obtained by Receiving Party from third parties not under obligation of confidentiality, or independently developed by Receiving Party as evidenced by written documentation. If the Receiving Party is requested pursuant to a court or government order to disclose Confidential Information, the Receiving Party will give the Disclosing Party written notice (if not legally prohibited from doing so) sufficient to enable the Disclosing Party to seek protective order and the Receiving Party will cooperate with the Disclosing Party in such effort.

12.2 Modifications to the Agreement. WE MAY CHANGE THE TERMS OF THIS AGREEMENT FROM TIME TO TIME BY POSTING THE UPDATED AGREEMENT ON THE WEBSITE. YOU CAN REVIEW THE MOST CURRENT VERSION OF THIS AGREEMENT AT ANY TIME AT https://onesourcecom.com/terms-conditions/ OR A SUCCESSOR URL THAT WE MAY DESIGNATE. THE REVISED TERMS AND CONDITIONS WILL BECOME EFFECTIVE IMMEDIATELY AFTER WE POST THE UPDATED TEXT ON THE WEBSITE. IF YOU USE THE CLOUD SERVICES AFTER SUCH A DATE, SUCH USE WILL CONSTITUTE ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS. We also reserve the right to modify, discontinue, or deprecate the Cloud Services from time to time in our sole discretion (including the Cloud Services as a whole). If any change to this Agreement is not acceptable to you, or if any change we make to the Cloud Services is a material reduction in functionality, you may, as your sole remedy for such change, stop using the Cloud Services and send a cancellation request email to [email protected].

12.3 Force Majeure. We and our affiliates 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.

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 Relationship of the Parties. This Agreement does not create or imply any agency, partnership, or franchise relationship. Nothing in this Agreement, express or implied, is intended to or shall confer on any third party any right, benefit or remedy of any nature whatsoever.

12.6 Notice. Notices to you shall be made by: (i) posting a notice on the Website; or (ii) sending a message to the email address then associated with the Customer Account. To change the email address on file in your Customer Account, you may do so directly. All notices to you will be deemed received when sent. Notices to us shall be made by sending an email from an address associated with the Customer Account directly at [email protected]. All communications and notices to be made or given pursuant to this Agreement must be in the English language.

12.7 No Waiver. No failure or delay by One Source Communications to exercise any right or remedy will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

12.8 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.

12.9 Entire Agreement. This Agreement and the documents it refers to constitute the entire agreement between the parties. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the parties, whether written or verbal, regarding the subject matter of this Agreement. One Source Communications 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 in any order, receipt, acceptance, confirmation, correspondence or other document. Unless otherwise stated, if the terms of this Agreement are inconsistent with the terms contained in a document referred to herein, the terms contained in this document will control. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

12.10 Governing Law and Venue. The laws of the State of South Carolina, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. Any dispute relating in any way to the Cloud Services, or this Agreement will be adjudicated in South Carolina. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any provincial, federal, or national court of competent jurisdiction for any actual or alleged infringement of our, our affiliates, or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.