Terms of Service
Last Updated on: August 31, 2021
These Terms of Service set forth the rules and guidelines users must agree to and follow to use and access the mCloud website (www.mcloudcorp.com), mCloud’s social media pages, and any digitally provided services (“Services”), including AssetCare® (collectively referred to as “Sites”).
BY ACCESSING THE SITES AND ANY OF THE INFORMATION AND SERVICES OFFERED THEREIN, YOU ACCEPT AND AGREE TO THESE TERMS OF SERVICE WITHOUT LIMITATION OR QUALIFICATION. PLEASE EXIT THE SITES AND REFRAIN FROM FURTHER USE IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF SERVICE. USING THE SITES IN ANY WAY, WHETHER AUTOMATED OR OTHERWISE, CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TERMS OF SERVICE.
These Terms may be modified from time to time. It is your responsibility to check these Terms before using the Sites.
We operate as mCloud Technologies Corp., 580 California Street, 12thFloor, San Francisco, California, 94104 “mCloud”, “we”, “us”, or “our”).
All Content is Protected
mCloud owns these Sites and all their original content, features and functionality, which are protected by international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You acknowledge and agree that you do not have any right or license to use any trademark, design right or copyright owned or controlled by mCloud. You may not use content, features, or functionality on these Sites without the prior written permission from mCloud.
Additionally, third-party content may appear on mCloud’s Sites. Any third-party content may not be used without the prior, written permission of the owners or the applicable third-party. You acknowledge and agree that nothing on mCloud’s Sites grants any right or license or has the authority to grant any right or license to third-party content. mCloud’s use of third-party content does not imply an endorsement of the third-party or its products or services.
Fair Use of Content is Permitted
Downloading, publishing, or using mCloud’s content for commercial purposes without authorization is prohibited. Fair use of copyrighted material, such as the use of material for teaching, scholarship, research, and news reporting and other noncommercial educational purposes is permitted. Users should make a citation to www.mcloudcorp.com for any fair use of content.
mCloud’s Additional Proprietary Rights
mCloud also has sole proprietary rights in the software and other proprietary technology associated with its services. As set forth more fully in an AssetCare® Subscription Agreements with Customers, any use of mCloud’s services is on a limited basis as agreed to by mCloud and its Customers.
Submission and Commenting Policy
mCloud’s Sites may allow you to submit information to mCloud and/or post information on mCloud’s Sites. mCloud may monitor, evaluate, alter or remove your submissions and comments.
If submissions and comments:
- are from anyone younger than 16 years of age;
- contains viruses or other code, file, or program that is designed to harm any software, hardware or equipment;
- contain unauthorized advertisements, endorsements or promotions;
- breach any duty of confidentiality;
- infringes on the intellectual property of mCloud or any third-party;
- include spam;
- link to any other sites;
- is abusive, defamatory, libelous, or obscene;
- threatens, harasses or discriminates against anyone;
- contains offensive or illegal information;
- is sexually explicit;
- promotes unlawful violence; or
- could cause damage or injury to any person or property
Submissions that violate this policy may be removed and you may be restricted from using mCloud’s Sites as a result of violating this policy.
You should also refer to the policies of any applicable third-party social media platform.
Website and User Submissions
We may provide you with interactive opportunities through the Sites and Services. You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You hereby grant us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with our business and in all forms now known or hereafter invented, without notification to and/or approval by you, except as otherwise required by law.
Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to us through our suggestion, feedback, or similar pages (“Feedback”) is at your own risk and that we have no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback, except as otherwise required by law.
Rules of Use
mCloud has devoted significant resources to developing these Sites and the services it provides. You may not:
- gain unauthorized access to the Sites, computer systems, or network
- collect information about mCloud users or customers
- use mCloud’s Sites or services for unlawful purposes or any use other than their intended purposes
- restrict anyone’s use of the Sites or services
- violate the publicity or privacy right of another individual
- download, store, make available, distribute, sell, or offer to sell site content without written permission
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part of mCloud’s Sites or software
- attempt to frame or mirror any portion of this site or mCloud’s services
- provide third-parties, except as authorized, with any access to mCloud’s software, documentation, or services, including through licensing, selling, renting, leasing, transferring, assigning, distributing, displaying, or disclosing mCloud’s services or documentation
- directly or indirectly suggest any endorsement or approval by mCloud of any site, entity, or content
- provide false, inaccurate, or misleading information
- use automated means to download data from the Sites
mCloud may include third-party materials and link to third-party sites on its Sites. mCloud has no ability to control third-parties or ensure third-party materials are accurate. mCloud expressly denies any liability or damages related to the use of third-party materials. Your use of third-party materials is subject to the third-party’s terms, conditions, and policies. You access and use third-party materials at your own risk.
While we will always use our best efforts to ensure the accuracy and completeness of information provided on our Sites, we cannot guarantee the accuracy, adequacy, quality, or suitability of any data on our Sites and expressly disclaim liability for errors and omissions in the contents of our Sites. Any use or reliance on any content or materials posted via the Sites or obtained by you through the Sites is at your own risk. Any link to a website or phone number owned by a third party does not constitute an endorsement, approval, association, sponsorship, or affiliation with the linked site or phone number.
Copyright Infringement Claims
Copyright owners who believe their United States copyright has been infringed through online use of the material have the right to send notice of the suspect copyright infringement under the Digital Millennium Copyright Act of 1998. Notices and counter-notices must be submitted in writing to mCloud as follows:
Attn: Copyright Inquiries
580 California Street, 12th Floor
San Francisco, California, 94104
Sites are for Information Purposes Only
mCloud’s Sites are intended to provide you with information about mCloud and how its services can be used to transform energy asset management using data. You should use your own judgment when taking any action or not taking an action based on these Sites.
Every form of internet use carries the risk information transmission may not be 100% secure. Therefore, mCloud cannot guarantee the security of data. mCloud is not responsible if you are unable to access the Sites properly. You are responsible for all costs for hardware and/or software necessary to access the Sites. You also assume the entire cost for any maintenance, repair or damage to your hardware and/or software incurred from accessing or using the Sites.
You do not have any rights to mCloud’s proprietary software and related documentation and material provided to you to access these Sites. You may not assign, transfer or sublease any licenses granted by mCloud.
You represent and warrant that your use will conform with these Terms of Service.
Disclaimer of Warranties
You expressly understand and agree that mCloud’s Sites, including those facilitated by third-parties, are available on an “as is” basis. This means, mCloud, including its past, present and future successors, assigns, heirs, administrators, executors, board members, officers, owners, shareholders, officials, directors, employees, attorneys, and agents, makes no warranties of any kind, whether express, implied, or statutory about these Sites. ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW.
We make no warranties or representations about the accuracy, reliability, completeness or timeliness of the content made available through the Sites, or the text, graphics, or links. Changes are periodically made to the Sites and may be made at any time without notice to you. We do not warrant that the Sites will operate error-free or that the Sites are free from computer viruses and other harmful malware. If your use of the Sites results in the need for servicing or replacing equipment or data, we shall not be responsible for those economic costs.
Limitation of Liability
You agree that under no circumstance and under no legal theory, will mCloud, including its past, present and future successors, assigns, heirs, administrators, executors, board members, officers, owners, shareholders, officials, directors, employees, attorneys, and agents, be liable to you or any third party for (a) any indirect, incidental, special, exemplary, consequential or punitive damages, including lost profits, lost sales or business, lost data or data breach, or (b) for any direct damages, costs, losses or liabilities (including attorneys’ fees) in excess of the fees actually paid by you in the two (2) months preceding the event giving rise to your claim or, if no fees apply, one hundred ($100) U.S. Dollars. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, and the Parties have relied on these limitations in determining whether to enter into this Agreement. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You assume all risk related your use of mCloud’s Sites and the use of information from mCloud’s Sites. The Sites and these Terms of Service do not create any express or implied warranty of merchantability. YOU ACKNOWLEDGE THAT THE SERVICES (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY US IN CONNECTION WITH THE SERVICES) ARE PROVIDED “AS IS” AND THAT WE MAKE NO WARRANTY THAT THE SERVICES WILL BE FREE FROM BUGS, FAULTS, DEFECTS OR ERRORS OR THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED. mCloud cannot be held liable for any errors in the content presented or in the information being accurate, complete, or suitable for any purpose. You agree to indemnify, defend and hold harmless mCloud’s past, present and future successors, assigns, heirs, administrators, executors, board members, officers, owners, shareholders, officials, directors, employees, attorneys, and agents from and against all claims, causes of action, judgments, liabilities, losses, costs, penalties, fines, expenses and fees (including, without limitation, court costs and attorneys’ fees and expenses), and damages that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Services; (c) your violation of this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Services.
Abusive Use May Be Restricted
mCloud has the right to restrict access to its Sites if you engage in abusive conduct.
You should limit the number of retries if there is a return state or error code and should check to ensure you are not requesting invalid links.
You may not engage in any spamming practices, including:
- Trojan Horse attack
- SQL Injection attack
- Cross Site Scripting attack
- Command Injection
- Remote File Inclusion
- PHP Script Injection
mCloud reserves the right, in its sole discretion to disable and/or terminate your access to its Sites if you violate this term.
Reservation of Rights
mCloud specifically and completely reserves all rights not expressly granted in this Terms of Service.
Agreement Does Not Create a Legal Relationship
This Agreement does not create a partnership between you and mCloud or authorize you to act as an agent for mCloud, and nothing in this Agreement is intended to operate to do so. You shall not have the authority to act in the name or on behalf of or otherwise bind mCloud in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). Further, nothing in this Agreement is intended to or shall create an employment or joint employment relationship between you and mCloud.
You agree that any dispute or claim relating in any way to your access or use of the Sites or as a consumer of our services, to any advertising or marketing communications regarding us or our Sites, to any products or services sold or distributed through the Sites that you received as a consumer, or to any aspect of your relationship or transactions with us will be resolved exclusively through final and binding arbitration rather than litigation. Any and all disputes shall be submitted to the American Arbitration Association under the most current version of its Commercial Arbitration Rules for final and binding arbitration, applying California substantive law. Arbitration shall be held in San Francisco, California. You expressly waive any right to contest submission of any and all disputes under these Terms to final and binding arbitration in San Francisco, California. Any claim to compel arbitration or other proceeding required by law to be filed in a court of law must be brought in the state or federal courts of San Francisco, California. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects.
This Arbitration Agreement will survive any termination of your relationship with us.
Choice of Law and Venue
This Agreement is governed by the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and mCloud agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively within the State of California for courts situated in San Francisco County, California, or in federal court for the Northern District of California.
This Terms of Service contains the entire agreement between you and mCloud with regard to the matters set forth in the Terms and shall be binding upon and inure to the benefit of mCloud’s past, present and future successors, assigns, heirs, administrators, executors, board members, officers, owners, shareholders, officials, directors, employees, attorneys, and agents.
These Terms of Service are severable. If any part of these Terms is found to be unenforceable, you agree that the court shall reform the term to as close as possible to the language of these Terms. If the provision may not be reformed, it shall be severed and deleted from these Terms and the remaining provisions shall remain in full force and effect.
All headings and captions in these Terms are for convenience only and shall not be interpreted to enlarge or restrict the provisions of the Terms.
Changes to these Terms
mCloud may change, add, or remove portions of these Terms of Service at any time and become effective immediately upon posting. The new Terms will be reflected in the Last Updated On date. It is your responsibility to review these Terms prior to use of the Sites.
Assignment and Transfer
You do not have the right to assign, transfer, charge, sub-contract or deal in any manner with all or any of its rights or obligations under these Terms. mCloud may assign and transfer its rights under these Terms at any time without limitation.
For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights.
Breach of Terms
You agree to report any suspected violations of the Terms of Service as soon as possible.
You agree to reimburse mCloud for all damages, costs, fees, and expenses, including attorneys’ fees, as a result of any breach of these Terms.
mCloud’s failure to exercise or enforce any right or provision of these Terms against you or another user shall not be a waiver of any right or provision of these Terms.
At our sole discretion, we may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.