Main Subscription Agreement

This Main Subscription Agreement (“MSA”) sets forth the terms and conditions pursuant to which Cloudinary grants its customers with a right to access and use its proprietary media management solutions (the “Services”). In this MSA, the term “Cloudinary” shall mean such Cloudinary entity that is party to the subscription order form incorporating this MSA (the “Order Form”), and the term “Customer” shall mean the party subscribing to the Services under the Order Form.

  • 1. Provision of Services

  • 1.1 Subject to the terms of this MSA and in consideration for the Fees set forth in the Order Form, Customer is hereby granted a non-exclusive, non-transferable limited right to access and use the Services on a hosted basis, pursuant to the Order Form, solely for Customer’s business purposes and for use with websites and mobile applications, owned or operated by Customer, all within the scope of use specified in the Order Form.
  • 1.2 Any associated, supplementary or additional Cloudinary products or services purchased by the Customer, and subscription renewals, shall be governed by the terms of this MSA.
  • 1.3 Customer shall be responsible for all acts and omissions associated with the access and use of the Services through Customer’s account (whether by employees, agents, contractors or any other third party). Customer shall not, directly or indirectly, authorize or permit any third parties to access or use the Services.
  • 1.4 Cloudinary’s technical support services in connection with the Services, are as set forth in the Service Level Agreement (SLA) attached to the Order Form.

  • 2. Customer’s Content; Use of Services; Restrictions.

  • 2.1 All media files and content uploaded, stored, administered, edited, delivered, made available, distributed or otherwise processed by Customer as part of the Services (“Customer’s Content“) are solely Customer’s responsibility.
  • 2.2 Customer shall not access or use the Services in any manner or for any purpose that violates any applicable law and/or in order to develop a similar or competitive product or service to the Services. Without limiting the foregoing, Customer will not transmit, display, distribute or otherwise make available through the Services content that is illegal, harmful, obscene, pornographic, defamatory, libelous, abusive, harassing, threatening, fraudulent, infringes upon a third-party’s intellectual property or privacy rights, or may damage, interfere with, or expropriate the Services or any third party’s system or program.
  • 2.3 Any third-party requests received by Cloudinary for removal from the Services of Customer’s Content that is alleged to infringe copyrights of any third party, are handled in accordance with Cloudinary’s DMCA Copyright Policy, which can be found at the following web page: http://cloudinary-site-preprod.go-vip.net/cloudinary/dmca.
  • 2.4 Cloudinary may, but is under no duty to, review Customer’s Content and remove or block access to such content via the Services, if Cloudinary, in its sole discretion, has reasonable grounds to believe or receives a notice from a third party, that such content may violate the restrictions set forth in Section 2.2. Cloudinary will use reasonable efforts to provide Customer with a notice at least 48 hours prior to final removal of said content from the Services.

  • 3. Confidentiality.

  • 3.1 As used in this MSA, “Confidential Information” shall mean any and all confidential, proprietary or other non-public information disclosed or made available by one party to the other, in any form or medium, including the terms set forth in any Order Form. Notwithstanding the foregoing, Confidential Information will not include information which (a) is or becomes available to the public through no breach of the receiving party; (b) was rightfully known without restriction on use or disclosure prior to such information being disclosed or made available to the receiving party; or (c) is received from a third party entitled to disclose such information without restriction.
  • 3.2 Each party undertakes that it (a) shall not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this MSA; (b) shall not disclose or permit access to Confidential Information except to its employees, contractors and agents who need to know it and have agreed in writing to keep it confidential under confidentiality obligations no less restrictive than those set forth herein; and (c) shall not disclose or permit access to Confidential Information and safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care.
  • 3.3 If a party is compelled by applicable law to disclose any Confidential Information, then prior to such disclosure, such party shall (a) promptly, except to the extent prohibited by applicable law, notify the other in writing of such requirement; and (b) disclose only that portion of Confidential Information, which it is legally required to be disclosed.

  • 4. Proprietary Rights.

  • 4.1 Except for Customer’s Content, which as between Cloudinary and Customer is solely owned by Customer, all right, title and interest in and to the Services, including all intellectual property rights relating thereto, embodied thereby or incorporated therein, are the exclusive property of Cloudinary and exclusive title to the foregoing shall at all times remain with Cloudinary, including if based on suggestions, ideas, requests, feedback, recommendations or other information provided by Customer. Customer grants Cloudinary and its affiliates permission to use Customer’s Content for the purposes of providing, supporting and improving the Services.
  • 4.2 Customer shall not, directly or indirectly, (a) decompile, disassemble, decode, re-engineer or reverse engineer the Services or any part thereof; (b) resell, transfer, assign, pledge, lease, rent, lend, distribute, publish, share, or otherwise make available the Services or any of its rights under this MSA to any third party; or (c) modify, remove, or obscure, Cloudinary names, logos, trademarks, warranties or disclaimers placed in or on the Services.

  • 5. Data Protection.

  • 5.1 Any data processed by Cloudinary with respect to Customer’s use of the Services, shall be done in compliance with and is subject to Cloudinary Data Processing Addendum, which can be found at the following web page: https://cloudinary-site-preprod.go-vip.net/cloudinary/gdpr/dpa.

  • 6. Fees & Payments‌.

  • 6.1 Fees to purchase a subscription to use the Services, and/or any additional Cloudinary products or upgrades (“Fees”), shall be as stated in the applicable Order Form, and Customer shall pay such Fees in accordance with the payment terms listed therein.
  • 6.2 If an invoiced amount is not received by Cloudinary by its due date, then, without derogating from any other remedies available to it, a late payment interest charge at a rate of 1.5% of the unpaid amount per month will be automatically added, or, if lower, the maximum rate permitted by applicable law, and Cloudinary shall be entitled to all reasonable expenses incurred (including reasonable attorneys’ fees) in connection with the collection of an overdue payment.
  • 6.3 All Fees payable by the Customer, pursuant to any Order Form, are exclusive of all taxes, levies and similar assessments, and Customer is responsible for all applicable taxes, other than taxes imposed on Cloudinary’s income. All Fees will be payable in full without any setoff, recoupment, deduction, wire transfer fees, debit or withholding.

  • ‌7. Term and Termination.

  • 7.1 The Services shall be provided to Customer for the term specified in the Order Form (the “Subscription Term”). Notwithstanding the aforesaid, this MSA and any then applicable Order Form, may be terminated by either party as follows:
  • (a) Upon written notice to the other party, if the other party materially breaches this MSA (including by failing to timely pay any Fees) and such breach (i) is incapable of cure; or (ii) being capable of cure, remains uncured for fourteen (14) days after the non-breaching party provides a notice of such breach. Cloudinary may disable and suspend Customer’s use of the Services during the notice period, provided that Cloudinary shall notify the Customer of such suspension as promptly as practicable.
  • (b) Effective immediately, if the other party is dissolved or liquidated or takes any corporate action for such purpose; becomes the subject of any voluntary or involuntary bankruptcy proceeding; makes or seeks to make a general assignment for the benefit of its creditors; or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property. For the avoidance of doubt, receipt of notice under this Section 7.1(b) will result in an immediate deactivation of the Services.
  • 7.2 Upon termination or expiration of the Subscription Term, Customer shall no longer be permitted to access or use the Services. In case of termination by Customer under Section 7.1(a) above, Cloudinary shall refund to Customer a proportionate amount of the prepaid basic subscription fee, with respect to the remaining portion of the Subscription Term following the effective date of termination. Except as expressly set forth in this agreement, termination of this MSA and any Order Form will not entitle Customer for any refund of Fees paid by Customer hereunder.
  • 7.3 Termination or expiration of this MSA or any Order Form shall not affect the survival of any provision that, by its nature, would survive termination or expiration or is intended to come into force upon termination or expiration. The Subscription Term will renew for successive 1-year periods unless either party provides a written notice of non-renewal as specified in the Order Form.

  • 8. Limited Warranty.

  • 8.1 Each party represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; and (b) it has the full right, power and authority to enter into and perform its obligations under this MSA.
  • 8.2 Cloudinary warrants that the Services shall operate in material compliance with its functional specifications as specified, from time to time, in the standard documentation made available by Cloudinary at https://cloudinary-site-preprod.go-vip.net/cloudinary/documentation and in case of failure to so operate, Cloudinary shall use commercially reasonable efforts to remedy such failure, as soon as practicable, given the nature and effect of such failure.
  • 8.3 EXCEPT FOR THE ABOVE EXPRESS WARRANTY, THE SERVICES ARE PROVIDED WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND CLOUDINARY HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES FOR THE SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, QUALITY, LIKELY-RESULT, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE ACCESS TO AND USE OF THE SERVICES SHALL BE AT ALL TIMES COMPLETELY UNINTERRUPTED OR ERROR FREE.

  • 9. Limitation of Liability.

  • 9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY, UNDER ANY CIRCUMSTANCES, SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, COSTS, EXPENSES AND PAYMENTS, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOST REVENUE, GOODWILL, OR REPUTATION, ARISING OUT OF THE USE OF THE SERVICES, HOWEVER CAUSED, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • 9.2 IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH THIS MSA EXCEED THE TOTAL AMOUNT ACTUALLY RECEIVED BY CLOUDINARY FROM THE CUSTOMER DURING THE TWELVE (12) MONTHS BEFORE THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
  • 9.3 THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

  • 10. Miscellaneous.

  • 10.1 Governing Law & Jurisdiction. This MSA shall be governed by the following laws, without giving effect to the principles of conflict of laws: for Order Forms executed with Cloudinary Inc., this MSA shall be governed by the laws of the State of California, and the courts in the Santa Clara County, California, shall have exclusive jurisdiction over any matter arising in connection with this MSA. For Order Forms executed with Cloudinary Ltd., this MSA shall be governed by the laws of England and Wales, and the courts in London, England, shall have exclusive jurisdiction over any matter arising in connection with this MSA.
  • 10.2 Assignment. This MSA may not be assigned by either party, without the prior written consent of the other party and any assignment without such prior written consent will be void, provided that either party may assign its rights and obligations herein to an affiliate and/or in connection with a merger, consolidation, or sale of all or substantially all of its assets. The provisions of this MSA shall be binding upon and shall inure to the benefit of each party successors and assigns.
  • 10.3 Force Majeure. Neither party shall be liable for any failure to perform its obligations to the extent such failure is a result of event or circumstance beyond such party’s reasonable control, including without limitation, acts of nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), pandemics, government sanctions, labor disturbance, war, or terrorist activities.
  • 10.4 Third Party Add-Ons. Customer, at its sole discretion, may choose to subscribe to third party add-ons that integrate with, or complement, the Services, such as those add-ons published on https://cloudinary-site-preprod.go-vip.net/cloudinary/addons. Customer understands that such add-ons are owned and operated by the applicable third parties, may be subject to separate terms of service and policies of such third parties, and that Cloudinary shall not be responsible or liable for such add-ons and/or Customer’s use thereof.
  • 10.5 Beta Services. Cloudinary may offer from time to time, at its sole discretion, products or features available to Customer on a trial, beta, early access, or similar basis (“Beta Services”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that it has the right, in its sole discretion, to elect whether to use any Beta Services, and that (a) Cloudinary provides Beta Services on an “as-is” basis, (b) Beta Services may be changed at any time, including in a manner that reduces their functionality, (c) Beta Services may not be supported under the same support level as the Services, and not subject to the same security obligations or audits as the Services, and (d)  Cloudinary will have no liability arising out of or in connection with Beta Services.
  • 10.6 Changes. This MSA may not be amended or modified, except by the written consent of both parties hereto. No failure or delay on the part of any party hereto in exercising any right, power or remedy shall operate as a waiver thereof. If any provision of this MSA is held to be invalid, unenforceable or illegal for any reason, the validity or enforceability of the remaining portions shall not be affected.
  • 10.7 Complete Agreement. This MSA, together with the applicable Order Form(s), constitutes the entire understanding between the parties and supersedes all prior discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Any preprinted terms on any Customer ordering documents or any representations, undertakings or terms referenced or linked therein will have no effect on the terms of this MSA, will not be binding in any way and are hereby rejected, including if access to or registration to a Customer’s vendors portal or billing system requires affirmative acceptance of such terms and/or where such Customer ordering document is signed by Cloudinary.
  • 10.8 Notices. Any notice under this MSA shall be in writing and shall be deemed sufficient upon delivery to the address listed in the Order Form when delivered personally or sent by email, or within five (5) days after being deposited in the mail as certified or registered mail with postage prepaid.

 

Last updated on April 1, 2023