Terms of Service

Please read these Terms of Service carefully, including the mandatory arbitration and class action waiver provisions. Note that your use of and access to our Services (as defined below) are subject to the following terms. If you do not agree to all of the following terms you may not use or access the Services in any manner.

Terms of Service

Effective Date: February 4, 2019

These Terms of Service (“Terms”) govern your access to and use of our websites, “Newton” applications, and online products and services (the “Services”). If you have any questions, comments, or concerns regarding these Terms or the Services, please contact us at notices@newtonhq.com.

These Terms are a binding contract between you and CloudMagic, Inc. (“CloudMagic,” “we,” or “us”). You must agree to and accept all of these Terms, or you do not have the right to access or use the Services; your using the Services means that you agree to all of these Terms. If you are accessing or using the Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms. We may make changes to these Terms from time to time. If we make changes to these Terms, we will notify you, such as by updating the “Effective Date” date above and/or posting a notice on the Services. If you do not agree with the new version of these Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. Your continued use of the Services will confirm your acceptance of the revised version of these Terms.

Privacy

Please refer to our Privacy Policy at https://newtonhq.com/k/privacypolicy for information about how we collect, use and disclose information about you.

When you use Read Receipts or Sender Profiles, or share your contacts with us, you are the data controller of your contact’s or email recipient’s personal information and we process this information on your behalf pursuant to the Data Processing Terms set forth in Exhibit A to these Terms. As between you and CloudMagic, you are responsible for obtaining consent from your contacts and email recipients.

You are responsible for the information you provide to others, including third parties that provide products or services that interact with our Services. The information you provide to these third parties will be subject to the privacy policies or other terms they may provide to you.

Eligibility; Use Restrictions

Our Services are not intended for use by anyone under the age of 13. By accepting these Terms, you hereby affirm that you are 13 or older. In addition, if you are between the ages of 13 and 18 (or between 13 and the age of legal majority under applicable law), you may use the Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms.

You represent and warrant that you have the full power and authority to enter into this agreement and that in doing so you will not violate any other agreement to which you are a party. You further agree to use the Services in compliance with all applicable laws.

You represent, warrant, and agree that you will not use the Services or interact with the Services by uploading content or otherwise, or encourage or assist any other party to use or otherwise interact with the Services, in a manner that:

We reserve the right, in our discretion and at any time, to remove any Content from the Services, suspend or discontinue any part of the Services, introduce new features or impose limits on certain features, or restrict access to parts or all of the Services. We may from time to time engage affiliates or third parties to provide all or part of the Services to you, and you hereby acknowledge and agree that such third party involvement is acceptable.

Connectivity and Availability

A computing device, Internet connection, wireless service plan, or data plan from a third-party service provider may be required in order to use the Services. In such cases, your Internet connection, wireless service, or data plan is subject to the fees, restrictions, terms, and limitations imposed by your service provider. You acknowledge that you are responsible for any such equipment and charges.

Registration; Account Communication

To access and use certain areas or features of the Services, such as the Newton application, you must register for an account with CloudMagic (“account” or “Newton account”). By creating an account, you agree to (a) provide accurate, current, and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who accesses or uses the Services using your account, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your account.

By creating a Newton account, you also consent to receive electronic communications from CloudMagic (e.g., via email or by posting notices to the Services). These communications may include notices about your account (e.g., payment authorizations, password changes, and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.

Content Ownership; Limited License; Feedback; Prohibited User Conduct and Content

Content Ownership; Limited License. The Services and materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, videos, images, illustrations, and so forth (all of the foregoing, the “Content”) are owned by or licensed to CloudMagic and are protected by copyright and/or other intellectual property laws. Except as explicitly stated in these Terms, CloudMagic reserves all rights in and to the Services and the Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Services and Content for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell, or commercially use the Services or the Content; (b) copy, reproduce, distribute, publicly perform, or publicly display the Content, except as expressly permitted by us or our licensors; (c) modify the Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Services or the Content; (d) use any data mining, robots, or similar data gathering or extraction methods; and (e) use the Services or the Content other than for their intended purposes. Any use of the Services or the Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

Feedback. If you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services or any of our products (“Feedback”), then you agree that your disclosure is gratuitous, unsolicited, non-confidential and without restriction. We are free to use Feedback without any acknowledgement or compensation to you. We will be free to use, disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide, without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.

Fair Usage Policy

Our fair usage policy (“FUP”) is designed to prevent fraud and abuse of our products. Under the FUP, the maximum number of devices that you can use with a single Newton account is limited to four (4). The maximum number of email accounts per Newton account is limited to twenty (20).

Prohibited User Conduct and Content. The Services may allow you and other users to import, export, create, post, store, transmit, and share content, including messages, text, photos, videos, software, data, and other materials (collectively, "User Content"). Except for the license you grant below, you retain all rights in and to your User Content, as between you and CloudMagic. You agree that you are solely responsible for protecting and enforcing those rights and that CloudMagic has no obligation to do so on your behalf.

Until you or CloudMagic deletes your Newton account, you grant CloudMagic a limited, nonexclusive, royalty-free, worldwide, fully paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username, or likeness provided in connection with your User Content in order to provide the Services to you and to develop and improve products and services for CloudMagic or its affiliates. You also grant CloudMagic and its affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, and distribute aggregated or de-identified User Content in order to develop and improve products and services for CloudMagic and its affiliates, which will survive any deletion of your Newton account.

You may not create, post, store, or share any User Content that:

In addition, although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.

Third Party Services

Our Services may contain third party resources or links or connections to third party websites, mobile applications or other online services (“Third Party Services”). When you access or use Third Party Services, including but not limited to linking such Third Party Services to your Newton account and giving such Third Party Services access to process and use data through your Newton account, you accept that there are risks in doing so, and that CloudMagic is not responsible for such risks, regardless of whether or not CloudMagic has a relationship with the entity offering such Third Party Services. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy that govern each Third Party Service that you access or use.

CloudMagic has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any Third Party Service or by any third party that you interact with through our Services. In addition, CloudMagic will not and cannot monitor, verify, censor, or edit the content of any Third Party Service. You acknowledge and agree that your interactions with such third parties are solely between you and such third parties, and that CloudMagic is not responsible or liable in any manner for such interactions.

Copyright Complaints

We have a policy of limiting access to the Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on the Services infringes any copyright that you own or control, you may notify CloudMagic’s designated agent as follows:

Designated Agent: DMCA Complaints
Address: CloudMagic, Inc. 380 Portage Avenue Palo Alto, CA 94306 United States
Telephone Number: 650-300-0000 E-Mail Address: notices@newtonhq.com

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on the Services is infringing, you may be liable to CloudMagic for certain costs and damages.

Disclaimer; Limitation of Liability; Indemnity; Dispute Resolution; Governing Law

WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CLOUDMAGIC AND OUR LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CLOUDMAGIC DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY FEATURES OR SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR SERVICES.

YOU ACKNOWLEDGE THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA, OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CLOUDMAGIC OR AN CLOUDMAGIC AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. To the fullest extent allowed by applicable law, under no circumstances and under no legal theory (including, without limitation, tort, contract, strict liability, or otherwise) will CloudMagic and our affiliates, agents, partners, licensors, suppliers and assigns, and our and their directors, officers, employees, consultants and other representatives (together with CloudMagic, the “CloudMagic Parties”) be liable to you or to any other person for any damages, costs, or liabilities arising from these Terms or the Services, including without limitation any indirect, incidental, consequential, or special damages, (including, but not limited to, damages for expenses or business interruption, property damage, attorneys’ fees, or loss of use, data, revenue, income, profits, or value of assets or securities), even if a CloudMagic Party has been advised of the possibility of such damages. To the fullest extent allowed by applicable law, in no event will the aggregate liability of the CloudMagic Parties exceed the actual fees paid by you to CloudMagic in connection with the Services during the twelve (12) months preceding the incident or claim. The limitations of liability set forth in this section will not limit or exclude liability for our fraud, gross negligence, or intentional, willful, malicious, or reckless misconduct. Some jurisdictions do not allow the exclusion or limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you.

Indemnity. You agree to indemnify, defend (at CloudMagic’s request), and hold the CloudMagic Parties harmless from and against any and all claims, liabilities, damages, losses, and expenses, (including without limitation, actual, indirect, incidental, consequential, and special damages, such as damages for expenses or business interruption, property damage, attorneys’ fees, and loss of use, data, revenue, income, profits, or value of assets or securities) arising from or related to any third-party claims relating to: (a) your alleged or actual violation of these Terms or any other applicable terms, policies, warnings, or instructions provided by us or a third party in relation to the Services or Third Party Services, (b) your use of the Services or Content (including all actions taken under your account), or Third Party Services, (c) your Feedback or User Content, (d) your violation, misappropriation, or infringement of any right of another, or (e) your violation of any applicable laws or regulations.

Export Control

The Services and related technology are subject to U.S. export control and sanctions laws, including the U.S. Export Administration Regulations administered by the U.S. Bureau of Industry and Security and sanctions administered the U.S. Office of Foreign Assets Control (“OFAC”) and may be subject to export or sanctions laws and regulations in other countries. You agree to comply with all such laws and regulations and acknowledge that you have the responsibility to obtain any licenses or other approvals, if applicable, to export, re-export, or otherwise transmit the Services or related technology. The Services and related technology may not be downloaded, shipped, or otherwise exported or re-exported (a) into, or to a national or resident of, any country subject to U.S. sanctions (currently Cuba, Iran, North Korea, Sudan, Syria, and the region of Crimea); (b) to any person or entity on OFAC’s list of Specially Designated Nationals, or other U.S. export control lists; or (c) for any purpose prohibited by U.S. export control laws (e.g., nuclear, biological, or chemical weapons or missile technology).

Government End Users

The Services and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.

Dispute Resolution and Arbitration

Please read the following section carefully because it requires you to submit to binding arbitration (and jury trial waiver) of any and all Disputes (other than specified intellectual property claims and small claims) with CloudMagic and limits the manner in which you can seek relief from CloudMagic. No class or representative actions or arbitrations are allowed under these Terms.

Some jurisdictions may limit or prohibit arbitration agreements or class action waivers. If you are a resident of such a jurisdiction, the arbitration agreement and class action waivers below are not applicable to you. Instead, the provisions requiring that Disputes be heard in small claims court will apply to any claims that you may have against CloudMagic. If your Dispute exceeds the monetary or other limits on jurisdiction of your local small claims court, any Dispute will be heard in federal or state courts, sitting in Santa Clara County, California.

Binding Arbitration; Disputes; Small Claims. You and CloudMagic agree to waive any right to a jury trial, or the right to have any Dispute resolved in any court, and instead accept the use of binding arbitration (which is either (a) the referral of a Dispute with an amount in controversy of less than $10,000.00 to one impartial person for a final and binding arbitration, or (b) the referral of a Dispute with an amount in controversy of $10,000.00 or more to three impartial persons for a final and binding determination); provided, however, that you have the right to litigate any Dispute in small claims court if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. You agree to bring a Dispute in small claims court only in your county of residence or Santa Clara County, California. “Dispute” as used in these Terms means any dispute, cause of action, claim, or controversy arising out of or in any way related to these Terms or the Services, including but not limited to personal injury disputes and disputes that involve third parties (such as developers of content), except any dispute, cause of action, claim, or controversy relating to your or CloudMagic’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and/or patents). This Dispute Resolution and Arbitration section does not prevent the parties from seeking public injunctive relief in a court of competent jurisdiction.

No Class Arbitrations, Class Actions, or Representative Actions. You and CloudMagic agree that any Dispute is personal to you and CloudMagic, and that any Dispute will be resolved only by an individual arbitration and will not be brought, whether inside or outside of arbitration, as a class or representative action, or on behalf of any other person or persons.

Federal Arbitration Act. You and CloudMagic agree that these Terms affect interstate commerce and that the enforceability of this section will be governed by, construed, and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), to the maximum extent permitted by applicable law, consistent with the Governing Law provisions below.

Confidentiality. The arbitrators, CloudMagic, and you will maintain the confidentiality of any proceedings, including but not limited to any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrators will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.

Process. Our goal is to resolve claims fairly and quickly. Accordingly, for any Dispute that you have against CloudMagic, you agree to first contact CloudMagic and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to CloudMagic by email at notices@newtonhq.com or by certified mail addressed to Legal Department, CloudMagic, Inc., 380 Portage Ave, Palo Alto, CA 94306, United States. The Notice must (a) include your name, residence address, email address, and mobile telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and CloudMagic cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may, as appropriate in accordance with this section, submit the Dispute to binding arbitration administered by JAMS or, where applicable, in court. You will have the right to an in-person hearing in your hometown area. In the case of a Dispute with an amount in controversy of less than $10,000.00, the JAMS Streamlined Arbitration Rules & Procedures will apply. In the case of a Dispute with an amount in controversy of $10,000.00 or more, the JAMS Comprehensive Arbitration Rules & Procedures will apply, and each party will pick one arbitrator, with those two arbitrators picking the third arbitrator who will be the chief arbitrator. In the event that JAMS declines or is unable to administer the arbitration, you and CloudMagic agree to have the arbitration administered by the American Arbitration Association (“AAA”), or another mutually agreed-upon administrator, in accordance with the AAA Consumer Arbitration Rules. If, after making a reasonable effort, you and CloudMagic are not able to agree upon an arbitration forum, JAMS will appoint an arbitration forum or arbitrators. The arbitration will be conducted in accordance with either the JAMS Streamlined Arbitration Rules & Procedures or the JAMS Comprehensive Arbitration Rules & Procedures, as indicated above (collectively, the “JAMS Rules”) then in effect, and you agree that such rules are subject to changes that JAMS may make from time to time. The JAMS Rules and other information about JAMS and arbitration are available at https://www.jamsadr.com, or by calling 1-800-352-5267. By agreeing to these Terms, you either (1) acknowledge that you have read and understand the JAMS Rules or (2) waive reading the JAMS Rules. You and CloudMagic agree that the terms set forth in these Terms govern the arbitration. You and CloudMagic agree that any Dispute must be commenced or filed within one year after such claim arises; otherwise, the Dispute is permanently barred.

As limited by the FAA, these Terms, and the applicable JAMS Rules, the arbitrators will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute, including the power to determine the question of arbitrability; provided, however, that this power does not include the power to conduct a class arbitration or a representative action, which is prohibited by these Terms (as stated above). The arbitrators may conduct only an individual arbitration, may not consolidate more than one person’s claims, and may not preside over any form of representative or class proceeding or any proceeding on behalf of or involving more than one person.

Fees and Award. If you initiate a Dispute, you will be required to pay a $250 filing fee, which is approximately equivalent to current court filing fees. All costs associated with the arbitration will be paid by CloudMagic. The party that does not prevail in the Dispute will be required to pay the other party’s fees and costs, including attorneys’ fees, unless you live in California, in which case CloudMagic will pay its own fees and costs. An arbitrator's award will consist of a written statement stating the disposition of each claim and will provide a concise written statement of the findings and conclusions on which the award is based.

Opt Out. You may opt out of this dispute resolution procedure by providing notice to CloudMagic no later than thirty (30) calendar days from the date you first accepted these Terms and used the Services. To opt out, you must send notice by e-mail to notices@newtonhq.com, with the subject line: “Arbitration Opt Out,” and include in the e-mail (a) your name and address and (b) the date on which you first accepted these Terms and used the Services. Alternatively, you may opt out by mailing an opt-out request with the same information to Legal Department, CloudMagic, Inc., 380 Portage Ave, Palo Alto, CA 94306, United States, postmarked no later than thirty (30) days from the date you first accepted these Terms and used the Services. These are the only two forms of notice that will be effective to opt out of this dispute resolution procedure.

Severability and Survival. If any portion of this Dispute Resolution and Arbitration section is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of the arbitration section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the arbitration section; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Dispute Resolution and Arbitration section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect, and the remainder of this Dispute Resolution and Arbitration section will be enforceable.

Severability. If any provision or part of a provision of these Terms is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

Governing Law. The FAA applies to the agreement to arbitrate to the maximum extent allowable. Except as preempted by FAA, the laws of the State of California, without reference to its choice of law principles, will govern these Terms. With the exception of Disputes in small claims court or in arbitration, the parties agree to exclusive jurisdiction and venue in the state or federal courts sitting in Santa Clara County, California for any claims arising out of a Dispute relating to these Terms.

Term and Termination

These Terms and the license granted hereunder are effective on the date you first use the Services and will continue for as long as you use the Services, unless terminated or modified in accordance with these Terms. CloudMagic may terminate these Terms or your access to the Services at any time, with or without notice, for any or no reason, including your actual or alleged breach of these Terms or applicable law, your request or self-effecting account deletion, account inactivity, non-payment of any fees, requests by law enforcement or other government agencies, or technical or security issues. You may terminate these Terms effective immediately by discontinuing use of the Services, and deleting your account by opening the Newton application on your mobile device and selecting Settings > My Newton Account > Delete Newton Account, or on your Mac or Windows computer, open Newton and select your profile picture > My Newton Account > Delete Newton Account. If you terminate these Terms for any reason or if we terminate these Terms for cause, you are not entitled to any refund for the remainder of your service term. If we terminate these Terms without cause, you will receive a prorated refund for the remainder of your service term. Upon termination of these Terms, the license granted hereunder will terminate, and you must stop all use of the Services. In the event of any termination, we will close your account and you will no longer be able to retrieve User Content contained in that account or otherwise use the Services.

Miscellaneous; California Users

Miscellaneous. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without CloudMagic’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. Failure to exercise a right does not constitute a waiver. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms will otherwise remain in full force and effect and enforceable. You acknowledge and agree that each affiliate of CloudMagic will be a third party beneficiary to these Terms and that such other companies will be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, there are no third-party beneficiaries intended under these Terms. These Terms are the only agreement between the parties with respect to the subject matter herein; provided, however, that these Terms do not supersede any other agreements we may have with you with respect to different subject matter. Except for changes to the Terms by us (as described herein), no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us. We reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Services. We are not responsible for any loss or harm related to your inability to access or use the Services.

California Users. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by telephone at (800) 952-5210.

Exhibit A
DATA PROCESSING TERMS

Definitions. For the purposes of these Data Processing Terms, the following terms have the meanings set out below:
“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679).“Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, and “Processing” have the same meanings as in the GDPR, and “Processed” and “Process” shall be construed in accordance with the definition of “Processing”.

Applicability. Where your Processing of Personal Data is subject to the GDPR, you acknowledge that your use of our Services may involve sending Personal Data to CloudMagic. To the extent that we process such data as your Processor, these Data Processing Terms apply and are incorporated by reference into the Terms of Service, and will govern to the extent of any conflict with the Terms of Service.

Our Obligations as Processor. To the extent that CloudMagic processes such Personal Data as your Processor, CloudMagic will:

  1. implement appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing or accidental loss, alteration, disclosure, destruction, or damage, including contractually binding employees, agents, and contractors to appropriate confidentiality requirements;
  2. notify you without undue delay of the discovery by CloudMagic of any Personal Data Breach;
  3. assist you by appropriate and possible technical and organizational measures, taking into account the nature of the processing and the information available to CloudMagic, to enable you to fulfill any obligations to respond to requests for the exercise of Data Subject rights under GDPR;
  4. assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of the processing and the information available to CloudMagic;
  5. upon your request, make available to you all information that is reasonably necessary to demonstrate CloudMagic’s compliance with its legal obligations as a data Processor under Article 28 of the GDPR;
  6. subcontract its data processing obligations under these Data Processing Terms to a sub-processor only by way of a written agreement with the sub-processors, which subjects those sub-processors to the equivalent obligations imposed upon CloudMagic by these Data Processing Terms; where the sub-processor fails to fulfill such obligations, CloudMagic will remain fully liable to you for the performance of that sub-processor’s obligations. CloudMagic will notify you in advance of any changes related to its sub-processor(s). If you reasonably object to such changes, you may inform CloudMagic in writing and stop using our Services; and
  7. upon termination of the Terms of Service, cease processing and delete the Personal Data as soon as reasonably practicable; provided that CloudMagic may keep the Personal Data if CloudMagic is required to do so by applicable law, or to the extent that CloudMagic has a contractual right or obligation to use the Personal Data independent of the Terms of Service.

Transfer of Personal Data. CloudMagic is awaiting approval of our certification under the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield that may apply to Personal Data transferred by you to CloudMagic, Inc. under the Terms of Service. Where your contacts are in the European Economic Area or Switzerland, and when applicable as the means to transfer Personal Data of such contacts to CloudMagic, you acknowledge that the CloudMagic Privacy Policy, European Commission’s adequacy decisions about certain countries, or European Commission approved standard contract clauses apply to such Personal Data in addition to the Terms of Service.