Terms & Conditions

Xloud Terms and Conditions / Customer Agreement

This Xloud Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Services (as defined below) and is an agreement between the applicable Xloud Technologies Contracting Party specified in Section 12 below (also referred to as “Xloud,” “we,” “us,” or “our”) and you or the entity you represent (“you” or “your”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 12 for definitions of certain capitalized terms used in this Agreement.

1. Xloud Responsibilities

1.1 General.You may access and use the Services in accordance with this Agreement. Service Level Agreements and Service Terms apply to certain Services.
1.2 Third-Party Content.Third-Party Content may be used by you at your election. Third-Party Content is governed by this Agreement and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.
1.3 Xloud Security. Without limiting Section 8 or your obligations under Section 2.2, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access, or disclosure.
1.4 Data Privacy. You may specify the Xloud regions in which Your Content will be stored. You consent to the storage of Your Content in, and transfer of Your Content into the Xloud regions you select. We will not access or use Your Content except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body. We will not (a) disclose Your Content to any government or third party or (b) move Your Content from the Xloud regions selected by you, except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section 1.4. We will only use your Account Information in accordance with the Privacy Notice, and you consent to such usage. The Privacy Notice does not apply to Your Content.
1.5 Notice of Changes to the Services. We may change or discontinue any of the Services from time to time. We will provide you at least 12 months’ prior notice before discontinuing a material functionality of a Service that we make generally available to customers and that you are using. Xloud will not be obligated to provide such notice under this Section 1.5 if the discontinuation is necessary to (a) address an emergency or risk of harm to the Services or Xloud, (b) respond to claims, litigation, or loss of license rights related to third-party intellectual property rights, or (c) comply with the law, but should any of the preceding occur, Xloud will provide you with as much prior notice as is reasonably practicable under the circumstances.
1.6 Notice of Changes to the Service Level Agreements. We may change, discontinue, or add Service Level Agreements, provided, however, that we will provide at least 90 days’ advance notice for adverse changes to any Service Level Agreement.

2. Your Responsibilities

2.1 Your Accounts.You will comply with the terms of this Agreement and all laws, rules, and regulations applicable to your use of the Services. To access the Services, you must have an Xloud account associated with a valid email address and a valid form of payment. Unless explicitly permitted by the Service Terms, you will only create one account per email address. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees, or a third party (including your contractors, agents, or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.
2.2 Your Content. You are responsible for Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Services will not violate any of the Policies or any applicable law.
2.3 Your Security and Backup. You are responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect, and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include the use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.
2.4 Log-In Credentials and Account Keys. Xloud log-in credentials and private keys generated by the Services are for your internal use only and you will not sell, transfer, or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
2.5 End Users. You will be deemed to have taken any action that you permit, assist, or facilitate any person or entity to take related to this Agreement, Your Content, or use of the Services. You are responsible for End Users’ use of Your Content and the Services, and for their compliance with your obligations under this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Services by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.

3. Fees and Payment

3.1 Service Fees.We calculate and bill fees and charges monthly. We may bill you more frequently for fees accrued if we reasonably suspect that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Services as described on the Xloud Site or otherwise shared with you using one of the payment methods we support. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the Xloud Site, unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services you are using by giving you at least 30 days’ prior notice. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. If we suspend your account under Section 4.1 or terminate your use of the Services pursuant to Section 5.2(b)(ii), we may elect not to bill you for fees and charges after suspension unless your account is reinstated.
3.2 Taxes. (a) Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes, except where applicable law requires otherwise. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we can claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as required by law. If any such deduction or withholding (including cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.

We will invoice you from our registered office at the address of your establishment (as registered with the tax authorities, if applicable) receiving the Services in accordance with the applicable indirect tax laws.

All fees and charges payable under this Agreement will be exclusive of applicable national, state, or local indirect taxes ("Taxes") that Xloud India is legally obligated to charge under Indian tax laws. For the purpose of this clause, local indirect taxes include Goods and Services Tax (“GST”), which includes the Central Goods and Services Tax ("Central Tax"), the State Goods and Services Tax ("State Tax"), the Union Territory Goods and Services Tax ("UT Tax"), and the Integrated Goods and Services Tax ("Integrated Tax"), as may be applicable. The Taxes charged by Xloud India will be stated in the invoice pursuant to applicable laws. Xloud India may charge and you will pay any applicable Taxes, which are stated separately on the invoice. As per the statutory requirement under GST, you will provide all necessary information such as the correct GST registered address, legal name, and GSTIN ("GST Information") in order for Xloud India to issue correct GST invoices as per the applicable legal requirements. In the event the GST invoice is incorrect, you will inform us in a timely manner, to enable Xloud India to correct the GST tax invoice. Xloud India will determine the place of supply for the Services based on the GST Information provided by you and accordingly, charge GST (CGST and SGST/UTGST or IGST) on its invoice. Any withholding taxes that may be applicable to the fees and charges payable to us are for our account. You will pay the fees and charges in our invoice in full (gross) without applying any withholding taxes. If you separately deposit applicable withholding taxes on such fees and charges to the applicable government treasury and issue us a withholding tax certificate evidencing such deposit, following receipt of the withholding tax certificate in original form, we will reimburse you an amount equal to the taxes that are evidenced as deposited.

4. Temporary Suspension

4.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Services immediately upon notice to you if we reasonably determine:
- (a) your or an End User’s use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact our systems, the Services or the systems or Content of any other Xloud customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent;
- (b) you are, or any End User is, in material breach of this Agreement;
- (c) you are in breach of your payment obligations under Section 3; or
- (d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

4.2 Effect of Suspension.If we suspend your right to access or use any portion or all of the Services:
- (a) you will be responsible for all fees and charges you incur during the period of suspension that we bill to you; and
- (b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.

5. Term; Termination

5.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 5. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 5.2.
5.2 Termination.
- (a) Termination for Convenience. You may terminate this Agreement for any reason by providing us notice and closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.
- (b) Termination for Cause.
- (i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. No later than the Termination Date, you will close your account.
- (ii) By Us. We may also terminate this Agreement immediately upon notice to you:
  (A) for cause if we have the right to suspend under Section 4 and the issue giving us the right to suspend either:
  - a. is not capable of being remedied; or
  - b. has not been remedied within 30 days of us suspending your service under Section 4.1;
  (B) if our relationship with a third-party partner who provides software or other technology we use to provide the Services expires, terminates, or requires us to change the way we provide the software or other technology as part of the Services; or
  (C) in order to comply with the law or requests of governmental entities.
5.3 Effect of Termination.
- (a) Generally. Upon the Termination Date:
  - (i) except as provided in Sections 5.3(a)(iv) and 5.3(b), all your rights under this Agreement immediately terminate;
  - (ii) you remain responsible for all fees and charges you have incurred through the Termination Date and are responsible for any fees and charges you incur during the post-termination period described in Section 5.3(b) that we bill to you;
  - (iii) you will immediately return or, if instructed by us, destroy all Xloud Content in your possession; and
  - (iv) Sections 2.1, 3, 5.3, 6 (except Section 6.3), 7, 8, 9, 11, and 12 will continue to apply in accordance with their terms.
- (b) Post-Termination. Unless we terminate your use of the Services pursuant to Section 5.2(b), during the 30 days following the Termination Date:
  - (i) we will not take action to remove from the Xloud systems any of Your Content as a result of the termination; and
  - (ii) we will allow you to retrieve Your Content from the Services only if you have paid all amounts due under this Agreement.

6. Proprietary Rights

6.1 Your Content. Except as provided in this Section 6, we obtain no rights under this Agreement from you (or your licensors) to Your Content. You consent to our use of Your Content to provide the Services to you and any End Users.
6.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content or End Users’ use of Your Content or the Services will violate the Acceptable Use Policy.
6.3 Intellectual Property License. The Intellectual Property License applies to your use of Xloud Content and the Services.
6.4 Restrictions. Neither you nor any End User will use the Xloud Content or Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to (a) reverse engineer, disassemble, or decompile the Services or Xloud Content or apply any other process or procedure to derive the source code of any software included in the Services or Xloud Content (except to the extent applicable law doesn’t allow this restriction), (b) access or use the Services or Xloud Content in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (c) resell the Services or Xloud Content. The Xloud Trademark Guidelines apply to your use of the Xloud Marks. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.
6.5 Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.

7. Indemnification

7.1 General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) your or any End Users’ use of the Services (including any activities under your Xloud account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you, End Users, or Your Content; or (c) a dispute between you and any End User. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third-party subpoena or other compulsory legal order or process associated with third-party claims described in (a) through (c) above at our then-current hourly rates.
7.2 Intellectual Property.
- (a) Subject to the limitations in this Section 7, Xloud will defend you and your employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
- (b) Subject to the limitations in this Section 7, you will defend Xloud, its affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
- (c) Neither party will have obligations or liability under this Section 7.2 arising from infringement by combinations of the Services or Your Content, as applicable, with any other product, service, software, data, content, or method. In addition, Xloud will have no obligations or liability arising from your or any End User’s use of the Services after Xloud has notified you to discontinue such use. The remedies provided in this Section 7.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services or by Your Content.
- (d) For any claim covered by Section 7.2(a), Xloud will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.
7.3 Process.The obligations under this Section 7 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.

8. Disclaimers

THE SERVICES AND XLOUD CONTENT ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED, OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES OR XLOUD CONTENT OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES OR XLOUD CONTENT OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
Customer Provided Licences. If you use any non-Xloud provided software on your Hosted System you represent and warrant to Xloud that you have the legal right to use the software in that manner. If we have agreed to install, patch or otherwise manage software for you in reliance on your licence with a software vendor (rather than Xloud’s licence with the software vendor), then you represent and warrant that you have a written licence agreement with the software vendor that permits Xloud to perform these activities. On Xloud’s request you will certify in writing that you are in compliance with the requirements of this paragraph and any other software license
Restrictions that are part of the Agreement, and will provide evidence of your compliance as we may reasonably request. If you fail to provide the required evidence of licensing, Xloud may, at its option, either:
Charge you its standard fee for the use of the software in reliance on Xloud’s licensing agreement with the vendor until such time as the required evidence is provided; or
Suspend or terminate the Agreement.
Your licensed software may not be compatible with our standard process for deploying and repairing Hosted Systems. In addition, in order to install the software, Xloud may require you to send the physical or electronic media provided to you by the software vendor, both for deployment, and again in the event of a failure of your Hosted System. You agree that Xloud will not be in breach of any Service Level Guarantee or other obligation under this Agreement that would not have occurred but for the delay resulting from our agreement to use your licensed software.

9. Limitations of Liability

9.1 Liability Disclaimers. EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 7, NEITHER XLOUD NOR YOU, NOR ANY OF THEIR AFFILIATES OR LICENSORS, WILL HAVE LIABILITY TO THE OTHER UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY, FOR (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, (B) THE VALUE OF YOUR CONTENT, (C) LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, OR GOODWILL, OR (D) UNAVAILABILITY OF THE SERVICES OR XLOUD CONTENT (THIS DOES NOT LIMIT ANY SERVICE CREDITS UNDER SERVICE LEVEL AGREEMENTS).
9.2 Damages Cap. EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 7, THE AGGREGATE LIABILITY UNDER THIS AGREEMENT OF EITHER XLOUD OR YOU, AND ANY OF THEIR RESPECTIVE AFFILIATES OR LICENSORS, WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO XLOUD UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE LIABILITY DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE; EXCEPT THAT NOTHING IN THIS SECTION 9 WILL LIMIT YOUR OBLIGATION TO PAY XLOUD FOR YOUR USE OF THE SERVICES PURSUANT TO SECTION 3, OR ANY OTHER PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.

10. Modifications to the Agreement

We may modify this Agreement (including any Policies) at any time by posting a revised version on the Xloud Site or by otherwise notifying you in accordance with Section 11.10. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services or Xloud Content after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Xloud Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.

11. Miscellaneous

11.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement without our prior written consent. Any assignment or transfer in violation of this Section 11.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition, or sale of all or substantially all of our assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Xloud as a party to this Agreement and Xloud is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective permitted successors and assigns.
11.2 Entire Agreement. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement (but does not supersede prior commitments to purchase Services such as Xloud instance). None of the parties will be bound by any term, condition, or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including, for example, any term, condition, or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence, or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document.
11.3 Force Majeure. Except for payment obligations, neither party nor any of their affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
11.4 Governing Law. The Governing Laws, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us.
11.5 Disputes. Any dispute or claim relating in any way to your use of the Services, or to any products or services sold or distributed by Xloud will be adjudicated in the Governing Courts, and you consent to exclusive jurisdiction and venue in the Governing Courts, subject to the additional provisions below.
(g) the parties agree that the provisions of this Section 11.5(g) will apply. Disputes will be resolved by binding arbitration, rather than in court. Arbitration will be conducted by a panel consisting of three (3) arbitrators, with one (1) nominated by each party and the third chosen by the two (2) arbitrators so nominated. The decision and award will be determined by the majority of the panels and shall be final and binding upon the parties. The arbitration will be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 of India, as may be in force from time to time. The arbitration proceedings will be conducted in English, and the seat of the arbitration will be New Delhi. The cost of the arbitration, including fees and expenses of the arbitrator, shall be shared equally by the parties, unless the award otherwise provides. The courts at New Delhi shall have exclusive jurisdiction for all arbitral applications. The Parties agree that the existence of and information relating to any such arbitration proceedings will not be disclosed by either party. Notwithstanding the foregoing, any party may seek injunctive relief in any court of competent jurisdiction for any actual or alleged infringement of such party’s, its affiliates’ or any third party’s intellectual property or other proprietary rights.
11.6 Trade Compliance.In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to an Indian company. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Services or Xloud Content, including your transfer and processing of Your Content, the provision of Your Content to End Users, and the Xloud region in which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties by any applicable government authority.
11.7 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third-party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
11.8 Language.All communications and notices made or given pursuant to this Agreement must be in the English language. 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.
11.9 Confidentiality and Publicity. You may use Xloud Confidential Information only in connection with your use of the Services or Xloud Content as permitted under this Agreement. You will not disclose Xloud Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of Xloud Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Services or Xloud Content.
11.10 Notice.
- (i) posting a notice on the Xloud Site; or
- (ii) sending a message to the email address then associated with your account.
11.11 No Third-Party Beneficiaries. Except as set forth in Section 7, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
11.12 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
11.13 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.
11.14 Account Specific Terms. You agree to the following modifications to the Agreement that apply to your Xloud Contracting Party as described below:
- (a) Section 7.1 will not apply to the extent the applicable Losses or damages are caused by Xloud’s gross negligence or criminal misconduct. For these purposes, “gross negligence” means an act or omission by an employee who has the authority to bind Xloud that is negligent and a willful and significant disregard of an obvious and material risk.
- (b) If we are required to give prior notice under Section 1.5 or Section 3, we will give you this notice by email or a reasonably substitutable alternative means. If we modify this Agreement under Section 10 in a way that is materially adverse to you (as reasonably determined by Xloud), we will give you at least 30 days’ prior notice of the modification by email or a reasonably substitutable alternative means.

12. Definitions

“Acceptable Use Policy”means the policy located at Xloud website (and any successor or related locations designated by us), as may be updated by us from time to time.
“Account Country”is the country associated with your account. If you have provided a valid tax registration number for your account, then your Account Country is the country associated with your tax registration. If you have not provided a valid tax registration, then your Account Country is the country where your billing address is located, except if you have a credit card associated with your Xloud account that is issued in a different country and your contact address is also in that country, then your Account Country is that different country.
“Account Information”means information about you that you provide to us in connection with the creation or administration of your Xloud account. For example, Account Information includes names, usernames, phone numbers, email addresses, and billing information associated with your Xloud account.
“API”means an application program interface.
"Xloud Contracting Party"means the party identified in the table below, based on your Account Country. If you change your Account Country to one that is identified with a different Xloud Contracting Party, you agree that the Xloud Contracting Party identified with your new Account Country is your Xloud Contracting Party, without any further action required by either party.

Account Country	Xloud Contracting Party	Contact Number	Mailing Address
India	Xloud Technologies Private Limited (Xloud India)	+91 9289 062 555	A 307, Ansal Chamber 1 Bhikaji Cama Place, Delhi 110066

“Xloud Confidential Information”means all nonpublic information disclosed by us, our affiliates, business partners, or our or their respective employees, contractors, or agents that are designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Xloud Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances, and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content, and existence of any discussions or negotiations between you and us or our affiliates. Xloud Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Xloud Confidential Information.
“Xloud Content”means APIs, WSDLs, sample code, software libraries, command line tools, proofs of concept, templates, advice, information, programs (including credit programs), and any other Content made available by us and our affiliates related to the use of the Services or on the Xloud Site and other related technology (including any of the foregoing that are provided by our personnel). Xloud Content does not include the Services or Third-Party Content.
“Xloud Marks”means any trademarks, service marks, service or trade names, logos, and other designations of Xloud and its affiliates that we may make available to you in connection with this Agreement.
“Xloud Site”means https://xloud.tech (and any successor or related locations designated by us), as may be updated by us from time to time.
“Xloud Trademark Guidelines”means the guidelines and trademark license located at Xloud website (and any successor or related locations designated by us), as may be updated by us from time to time.
“Content”means software (including machine images), data, text, audio, video, or images.
“End User”means any individual or entity that directly or indirectly through another user (a) accesses or uses Your Content, or (b) otherwise accesses or uses the Services under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own Xloud account, rather than under your account.
“Governing Laws”and “Governing Courts” mean, for each Xloud Contracting Party, the laws and courts set forth in the following table:

Xloud Contracting Party	Governing Laws	Governing Courts
Xloud Technologies Private Limited (Xloud India)	The laws of India	The courts in New Delhi, India

“Indirect Taxes”means applicable taxes and duties, including, without limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
“Intellectual Property License”means the separate license terms that apply to your access to and use of Xloud Content and Services located at Xloud website (and any successor or related locations designated by us), as may be updated by us from time to time.
“Losses”means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
“Policies”means the Acceptable Use Policy, Privacy Notice, the Site Terms, the Service Terms, and the Xloud Trademark Guidelines.
“Privacy Notice”means the privacy notice located at Xloud website (and any successor or related locations designated by us), as may be updated by us from time to time.
“Service”means each of the services made available by us or our affiliates, including those web services described in the Service Terms. Services do not include Third-Party Content.
“Service Level Agreement”means all service level agreements that we offer with respect to the Services and post on the Xloud Site, as they may be updated by us from time to time. The service level agreements we offer with respect to the Services are located at Xloud website (and any successor or related locations designated by us), as may be updated by us from time to time.
“Suggestions”means all suggested improvements to the Services or Xloud Content that you provide to us.
“Term”means the term of this Agreement described in Section 5.1.
“Termination Date”means the effective date of termination provided in a notice from one party to the other in accordance with Section 5.
“Third-Party Content”means Content made available to you by any third party on the Xloud Site or in conjunction with the Services.
“Your Content”means Content that you or any End User transfers to us for processing, storage, or hosting by the Services in connection with your Xloud account and any computational results that you or any End User derive from the foregoing through their use of the Services. For example, Your Content includes Content that you or any End User stores in Xloud Simple Storage Service. Your Content does not include Account Information.
“Service Terms”means the rights and restrictions for particular Services located at Xloud Website (and any successor or related locations designated by us), as may be updated by us from time to time.
“Site Terms”means the terms of use of the Xloud Site located at Xloud website (and any successor or related locations designated by us), as may be updated by us from time to time.