Constant Edge General Terms and Conditions

Last updated: January 2, 2024

These General Terms and Conditions (“General Terms”) govern the supply of Products and Services by Constant Edge (collectively, the “Services”) and are entered into by the customer (“Customer”) and the applicable Constant Edge entity (“Constant Edge”) that are identified on the Customer Agreement or Invoice that references these General Terms.

As used herein, "Constant Edge" means:

(a) Constant Edge, Inc. (a Delaware corporation with a place of business at 2093 Philadelphia Pike, Suite 3075, CLAYMONT, DE 19703), if the Customer is domiciled in the USA or Canada; or

(b) Constant Edge Ltd. (an English company with a place of business at Plymouth Science Park, 1 Davy Road, Plymouth, PL6 8BX), if the Customer is domiciled in any jurisdiction other than the USA or Canada.

1 Confidentiality Obligations.

1.1 Definitions. “Confidential Information” means information designated by the party disclosing such information (“Disclosing Party”) as “confidential” or “proprietary” or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of the disclosure. Customer’s Confidential Information includes Customer Data. Constant Edge’s Confidential Information includes all information related to the performance, functionality, and reliability of the Services. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of the party that receives such information (“Receiving Party”) from the Disclosing Party; (ii) is in the Receiving Party’s possession prior to receipt from the Disclosing Party; (iii) is acquired by the Receiving Party from a third-party without breach of any confidentiality obligation to Disclosing Party; or (iv) is independently developed by Receiving Party without reference to the Disclosing Party’s Confidential Information.

1.2 Obligations. Confidential Information is and will remain the exclusive property of the Disclosing Party. Receiving Party will, in addition to any other obligations required of it under Section 1 herein: (i) use Disclosing Party’s Confidential Information solely for the performance of the activities contemplated by these General Terms; (ii) disclose such information only to its employees, agents, and contractors who are bound by obligations of confidentiality at least as strict as those contained in this Section 1; (iii) protect Disclosing Party’s Confidential Information against unauthorized use or disclosure using the same degree of care it uses for its own Confidential Information, which in no event will be less than reasonable care; and (iv) upon written request, return or destroy all copies of the Disclosing Party’s Confidential Information that are in its possession or control.

1.3 Injunction. Notwithstanding anything to the contrary, either party may seek equitable, injunctive or declaratory relief to enforce any of its intellectual property rights or rights in the Confidential Information in any court of appropriate jurisdiction.

2 Term and Termination

2.1 Term. These General Terms are valid as of the first date that a Subscription Term as defined in Service Order Details or Invoice is in effect and will remain in force until the conclusion of the Subscription Term between Customer and Constant Edge. Each Subscription Term will renew automatically for terms of the same length as agreed, unless one party gives the other party written notice of its intent not to renew the applicable subscription at least 5-days prior to the end of the then current Subscription Term.

2.2 Termination.

2.2.1 For Breach. Either party may terminate these General Terms immediately on giving written notice to the other party if the other party commits any material breach of any term of these General Terms or related Customer Agreement or Service Level Agreement and has not cured such breach within thirty days of its receipt thereof.

2.2.2 For Bankruptcy. Either party may terminate these General Terms immediately on giving written notice to the other party if the other party: (i) becomes insolvent, (ii) is generally unable to pay, or fails to pay, its debts as they become due, (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy pursuant to any insolvency law, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business.

2.2.3 No Other Rights of Termination. Customer acknowledges that it has no rights of termination other than those specifically set out in these General Terms.

2.3 Changes to Services. Customer acknowledges that the Services are offered as software-as-a-service and that the details of the offerings themselves, including the terms of the Service Levels and Support Description, will change over time. If such changes result in a material degradation of the Services, then Customer may provide written notice to Constant Edge including a description of the degradation. If the identified material degradation is not corrected by Constant Edge or its suppliers, within thirty days of Constant Edge’s receipt of such notice from Customer, then Customer may terminate these General Terms and all applicable Customer Agreement and receive a refund of any fees paid for the remainder of the then-effective Subscription Term.

2.4 Suspension of Services. Constant Edge may suspend the Services in the event Customer fails to pay any undisputed amount within fifteen days of Constant Edge’s notice to Customer of such failure to pay.

2.5 Survival. Customer’s payment obligations, the provisions of this Section and the provisions of the following Sections will survive any termination of these General Terms: Section 1 (Confidentiality Obligations), Payment.

3 Fees and Payment Terms. Customer will pay any fees set forth in any agreed Customer Agreement as detailed in Service Order Details or Invoice. Fees are due net thirty days from the invoice date.

3.1 Professional Services Fees. Fees for any Professional Services to be performed by Constant Edge shall be invoiced in full promptly once the applicable Customer Agreement is in effect.

3.2 Disputed Invoices. If Customer disputes any portion of an invoice, then Customer will notify Constant Edge in writing within fifteen days of receipt of the applicable invoice. Such notice will include a description of the basis for Customer’s dispute. If only part of an invoice is disputed, then Customer will pay the undisputed amount as provided herein. The parties will work together in good faith to resolve any such dispute promptly.

3.3 Late Payment. Customer will be notified in the event payment has not been received in accordance with the terms of this Section 3.3. If any undisputed amount due is not paid within fourteen days of such notice, then Constant Edge may charge a late payment fee on any unpaid amount due at the rate of one percent (1%) per month or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date such amount is paid. In the event any action is taken to pursue collection of any fees payable hereunder, Customer will reimburse Constant Edge for Constant Edge’s costs associated with such collection, including reasonable legal fees.

3.4 Taxes. The fees and any other charges hereunder do not include any taxes, withholdings, levies or duties of any nature (including without limitation, local, state, provincial, federal, VAT or foreign taxes) that may be assessed at any time in connection with the Services during the term of these General Terms. Customer is responsible for paying any such taxes, excluding taxes based on Constant Edge’s net income.

3.5 Customer may increase the number of Mailboxes protected or add Services at any time during the Subscription Term. Additional fees may apply.

3.6 During a Subscription Term, it is not possible for Customer to reduce the number of Mailboxes initially ordered; (ii) downgrade any of the Services ordered; or (iii) remove any of the Services ordered

3.7 During a Subscription Term, it is not possible for Constant Edge to increase the Unit Price for any of the Services unless Customer requests a change in the Quantity of the Services (e.g., an increase in the number of Mailboxes) by providing advance notice to Constant Edge, at which point additional fees may apply on a pro-rata basis. However, without any changes to the Quantity of the Services, no change in Unit Price shall occur during the Subscription Term.

3.8 Such changes may be made effective at the start of a new Subscription Term, but only if each of the parties receives notice of such change(s) not less than thirty days prior to the renewal date so as to have the opportunity to consider the changes prior to the deadline to provide notice of intent not to renew. For clarity, Constant Edge will not reduce fees based on changes received fewer than five (5) days prior to the renewal date.

4 General

4.1 Legal Demands. Notwithstanding any provision herein to the contrary, Customer Data may be retained and disclosed by Constant Edge as required to comply with applicable laws, regulations, subpoenas or court orders or to otherwise enforce its rights under these General Terms. Where allowed by law, Constant Edge will provide reasonable prior written notice to Customer to permit Customer to seek a protective order and will cooperate in Customer’s activities under this Section 4.1, at Customer’s expense. Constant Edge will disclose only that information that is reasonably necessary to meet the applicable legal order or requirement.

4.2 Force Majeure. Neither party will be liable for any delay in performance or failure to perform its obligations under these General Terms due to any cause or event outside its reasonable control including, acts of God, civil or military authority, acts of war, accidents, natural disasters or catastrophes, strikes or other work stoppages or any other cause beyond the reasonable control of the affected party.

4.3 Assignment. Customer may assign these General Terms in whole or in part to a successor in interest in the event of a sale or merger of Customer. Otherwise, Customer may not assign these General Terms or any Customer Agreement in whole or in part without Constant Edge’s prior written consent, which consent will not be unreasonably withheld. These General Terms will be binding upon the parties hereto and any authorized assigns.

4.4 Notices. Any business communications in connection with these General Terms may be provided by email. Any legal notices relating to these General Terms must be provided in writing and sent to the receiving party at the address set out in the applicable Customer Agreement or any address later provided by such party. All notices will be sent by major commercial delivery courier service or mailed in a manner that requires signature by the recipient.

4.5 Entire Agreement. Each party hereby acknowledges that: (i) no reliance is placed on any representation not provided in these General Terms and accompanying Exhibit A; and (ii) agreement to these General Terms and accompanying Exhibits A is not conditioned on any promise made by Constant Edge to deliver any future deliverable such as a feature or functionality. No purchase order or other communication will add to or vary these General Terms and accompanying Exhibits A. Any purchase order or other terms provided by Customer will be accepted by Constant Edge for invoicing purposes only.

4.6 Modifications and Severability. Except as expressly provided herein, any modification to these General Terms must be made in writing and signed by an authorized representative of each party. If any provision of these General Terms is held to be unenforceable, such provision will be reformed to the extent necessary to make it enforceable, and such holding will not impair the enforceability of the remaining provisions.

4.7 Waiver. The failure by a party to exercise any right hereunder or to insist upon or enforce strict performance of any provision of these General Terms will not waive such party's right to exercise that or any other right in the future.

4.8 No Third-Party Beneficiaries. These General Terms are entered into solely between, and may be enforced only by, Constant Edge and Customer. These General Terms will not be deemed to create any third-party rights or obligations.

4.9 Independent Contractors. Each party to these General Terms will be acting as an independent contractor, and nothing herein will be construed to create a partnership, joint venture or any type of agency relationship between Constant Edge and Customer or any Permitted User.

4.10 Export Restrictions. Each party agrees to comply with all applicable regulations with respect to the export and import of the Services, including where applicable the regulations of the United States Department of Commerce and the United States Export Administration Act.

4.11 Governing Law

4.11.1 (Where a client purchases via Constant Edge, Inc). These General Terms and any disputes hereunder will be governed by the state of Delaware, United States, without regard to its conflict of law principles, and any litigation concerning these General Terms shall be submitted to and resolved by a court of competent jurisdiction in Delaware, United States.

4.11.2 (Where a client purchases via Constant Edge Ltd). These General Terms and any disputes hereunder will be governed by the laws of the England, without regard to its conflict of law principles, and any litigation concerning these General Terms shall be submitted to and resolved by a court of competent jurisdiction in England.

EXHIBIT A – Vendor Specific Terms and Conditions

CLOUDALLY, a division of OpenText

Terms and Conditions
https://www.carbonite.com/legal/cloud-terms-and-conditions

Service Specific Terms

https://www.carbonite.com/legal/service-specific-terms-addendum

Note: Only section 5 is applicable

Service Level Agreement

https://www.carbonite.com/legal/service-level-addendum
Privacy Policy

https://www.opentext.com/about/privacy

California Consumer Privacy Act (CCPA)

CloudAlly is compliant with CCPA as a Service Provider and provides a CCPA Addendum. The CCPA addendum is available by request from Constant Edge.

GDPR / Data Process Addendum (DPA)