These CloudBolt Software Inc. (“CB”) standard terms and conditions govern transactions by which Customer purchases CB Professional Services.
1. DEFINITIONS
1.1 Order Schedule means each CB ordering document signed by the duly authorized representatives of both parties which identifies the Services ordered by Customer from CB and which references this Agreement.
1.2 Professional Service Packages means standard project packages defined on our website and your Order Schedule.
1.3 Services means those engineering, consulting, training, implementation or other services provided by CB pursuant to Section 2.1 hereof. Customer may order Services from CB by executing a mutually agreed upon Order Schedule, SOW or both.
1.4 SOW means a Statement of Work signed by the duly authorized representatives of both parties that sets forth and describes Services to be provided Customer hereunder, the fees to be paid, delivery schedules, timelines, specifications and any other terms agreed upon by the parties.
1.5 Work Product means any work product, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed or delivered in the performance of Services.
2. SERVICES
2.1 Services. CB shall provide Customer certain Services, such as engineering, consulting, training or implementation services, as specified in an Order Schedule, Professional Service Package, or SOW. All changes to an Order Schedule, Professional Service Package, or SOW must be approved by both parties in writing. CB does not guarantee any estimates set forth in a SOW but will notify Customer as soon as practicable if an estimate will be exceeded.
2.2 Work Product. CB retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by CB in the performance of this Agreement. CB may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by it while providing the Services and may incorporate the Work Product in future releases of any of its products or services.
2.3 Staffing, Designated Contact and Cooperation. CB shall have sole discretion in staffing the Services and may assign the performance of any portion of the Services to any subcontractor; provided that CB shall be responsible for the performance of any such subcontractor. Customer shall designate at least one employee with knowledge of Customer’s business and CB’s technology and services as its primary contact to be available for communication with CB in providing the Services. Customer will cooperate with CB, will provide CB with accurate and complete information, will provide CB with such assistance and access as CB may reasonably request, and will fulfill its responsibilities as set forth in this Agreement and the SOW or Order Schedule, as the case may be. If CB personnel are required to be present on a Customer site, Customer will provide adequate workspace and may provide reasonable worksite safety and security rules to which such personnel are to conform. All resources and information that are required for CB to perform the Services shall be provided at Customer’s expense.
3. COOPERATION
3.1 Cooperation. Customer acknowledges that our timely provision of (and our access to) Customer facilities, equipment, systems, networks, assistance, cooperation, data, information and materials, Customer’s officers, agents and employees (the “Cooperation”) is essential to our performance of the Professional Services. As part of the Cooperation, you will (a) designate a project manager or technical lead to liaise with CB while performing the Professional Services; (b) allocate and engage additional resources as may be required to assist in performing the Professional Services, including but not limited to: technical resources, business decision makers, and third party experts; (c) timely perform any tasks reasonably necessary to enable CB to perform the obligations; (d) actively participate in scheduled meetings; and (e) make available to CB, at no charge to CB, any data, information and any other materials reasonably required to perform the Professional Services, including any data, information or materials specifically identified in the SOW or Order Schedule (collectively “Customer Materials”). Customer is responsible for ensuring that all Customer Materials are accurate and complete.
3.2 Scheduling, Rescheduling and Cancellation. It is expected that technical sessions will be scheduled at least five (5) business days in advance. Two (2) business days written notice is required for cancelling or rescheduling. If cancellation or rescheduling occurs with less than two (2) business days advance notice, the time allotted will be applied against the applicable SOW or Order Schedule. Customer will reimburse CB for any non-refundable expenses we incurred at the time of the cancellation or scheduling.
3.3 Delays. CB will not be liable for any delay or deficiency in performing the Professional Services if Customer does not provide the necessary Cooperation. Any delays in the performance of Professional Services caused by the Customer may result in additional applicable charges for resource time.
3.4 On Hold. The Professional Services will automatically be put on hold if a delay is caused by the Customer and: (a) within three (3) business days of receiving a Change Order, the Customer decides not to execute it or fail to reply; or (b) within three (3) business days of being notified of the delay, the Customer fails to resolve the underlying issue causing the delay. When on hold, CB may at our sole discretion, reassign resources currently assigned to the project. Resources will be reassigned to the project only after you complete the interim work necessary to meet the requirements that prompted the delay. Re-engagement and the schedule will be subject to the resource availability at that time. Any project that is put on hold, by the Customer or because of the Customer’s delay, for more than six (6) months will be deemed complete, any unused pre-paid fees for the Professional Services are non-refundable, and CB is not responsible for the resulting condition of Deliverables or the project
4. FEES; PAYMENT TERMS
Customer shall pay CB the fees, charges and other amounts specified in a SOW within thirty (30) days of the date of invoice. CB is expressly authorized by Customer to invoice in advance for the provision of Services unless otherwise set forth in the applicable SOW. In addition to paying the applicable fees, Customer shall also pay all reasonable travel and out-of-pocket expenses incurred by CB in connection with any Services rendered. If an estimate of expenses is provided in the applicable SOW or Order Schedule, CB will not exceed the estimate without written consent. Overdue balances are subject to a service charge equal to the lesser of 1.5% per month or the maximum legal interest rate allowed by law. Customer shall be responsible for taxes levied on any transaction under this Agreement, including all federal, state, and local taxes, levies and assessments, excluding any tax based on CB’s income.
If a Customer pre-purchases Professional Service credits or block hours, the prepaid credits or block hours must be redeemed within twelve (12) months from the date of the applicable Order Schedule. Prepaid credits or block hours may be used for any Services previously defined. Prepaid credits or block hours will be credited towards work orders or SOWs issued by CB during the applicable time period. At the end of the twelve (12) month period, any remaining prepaid credits or block hours will expire, and no refunds will be provided for any unused prepaid credits or block hours. Prepaid credits and block hours are not transferrable and may not be resold.
5. CONFIDENTIALITY
5.1 Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The parties expressly agree that the terms and pricing of this Agreement are the Confidential Information of CB. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
5.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
6. LIMITED WARRANTY; INDEMNIFY
6.1 Warranty and Remedy. CB warrants that Services will be provided with reasonable skill and care conforming to generally accepted industry standards and any specifications specified in the applicable SOW. Customer must report any deficiency in Services to CB in writing within thirty (30) days of completion of such Services. For any breach of the above warranty, CB will, at its option and at no cost to Customer, provide remedial services necessary to enable the Services to conform to the warranty or, if such remedial services are unsuccessful, refund amounts paid solely in respect of the defective Services. Customer will provide CB with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranty.
6.2 No Other Warranty. THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE.
6.3 Indemnity.
A) Each party (“Provider”) shall defend the other party (“Recipient”) against any claim that any information, design, specification, instruction, software, data or material furnished by the Provider hereunder (“Material”) infringes a copyright or patent or misappropriates a trade secret of a third party, and will indemnify and hold harmless the Recipient from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with such a claim, provided that: (a) Recipient notifies Provider in writing within thirty (30) days of the claim; (b) Provider has sole control of the defense and all related settlement negotiations; and (c) Recipient provides Provider with the assistance, information and authority reasonably necessary to perform the above. Provider shall reimburse Recipient for its reasonable out-of-pocket expenses incurred in providing such assistance.
B) Provider shall have no liability for any claim of infringement or misappropriation to the extent that (a) the Material is based on specifications provided by Recipient, (b) the combination, operation, or use of the Material with software or equipment which was not provided by Provider, to the extent that Provider’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (c) such claim is based upon Recipient’s use of a superseded or altered version of some or all of the Material if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered release of the Material which was provided to Recipient.
C) In the event that some or all of the Material is held or is reasonably believed by Provider to infringe or misappropriate the intellectual property rights of a third party, Provider shall have the option, at its expense, to (a) modify the Material so it no longer infringes or misappropriates; (b) obtain for Recipient a license to continue using the Material; or (c) require return of the affected Material and all rights thereto from Recipient.
7. LIMITATION OF LIABILITY.
7.1 Consequential Damage Waiver. Except as may arise out of either party’s breach of Section 4, neither party will be liable to the other or any third party for loss of profits, or special, indirect, incidental, consequential or exemplary damages, including costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.
7.2 Limitation of Liability. Except as may arise out of CB’s breach of Section 4 or CB’s indemnification obligations in Section 5.3, the total liability of CB to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by (and not otherwise refunded to) Customer to CB under any SOW or Order Schedule for the Services which form the subject of the claim. The provisions of this Agreement allocate risks between the parties. The pricing set forth in each SOW or Order Schedule reflects this allocation of risk and the limitation of liability specified herein.
8. TERM
Subject to earlier termination as provided herein, this Agreement shall have an initial term of one (1) year beginning upon the Effective Date and shall automatically renew for additional periods of one (1) year at the expiration of the initial term or any renewal term, unless a party hereto provides written notification of termination of this Agreement to the other party not later than thirty (30) days immediately preceding the date on which this Agreement would otherwise renew. Either party may terminate this Agreement or any SOW or Order Schedule (i) immediately in the event of a material breach of this Agreement or any such SOW or Order Schedule by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. The parties’ rights and obligations under Sections 2, 3, 4, 5, 6, 7 and 8 will survive termination or expiration of this Agreement.
9. GENERAL PROVISIONS
9.1 Entire Agreement and Controlling Documents. This Agreement, including any SOWs and Order Schedules, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable SOW/Order Schedule and is duly signed by the authorized representatives of both parties may amend this Agreement or such SOW or Order Schedule. Boilerplate terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by CB. This Agreement shall apply to all Services ordered by Customer or delivered to Customer by CB. Any conflict between the terms and conditions set forth in this Agreement and any SOW or Order Schedule shall be resolved in favor of this Agreement unless such SOW or Order Schedule expressly references the conflicting provision that it is intended to control and states that it is to control.
9.2 Assignment. This Agreement shall be binding upon and for the benefit of CB, Customer and their permitted successors and assigns. Either party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void.
9.3 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions. Each party consents to, and agrees that each party is subject to, the exclusive jurisdiction of the state and federal courts of the Commonwealth of Massachusetts with respect to any actions for enforcement of or breach of this Agreement.
9.4 Headings; Counterparts. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) shall be considered an original.
9.5 Non-Solicitation. During the term of this Agreement and for a period of not less than twelve (12) months after termination or expiration of the applicable services engagement, neither party shall directly and knowingly solicit for employment any person employed by or under contract with the other party who has been directly involved in such services engagement. It is the intent of the parties that nothing stated herein shall prohibit either party from, at any time, hiring an employee of the other party, if such employee responded to an indirect solicitation (e.g. trade fair, newspaper advertisement, posting on an Internet job board or posting on the party’s own internet recruiting device) from the hiring party or the hiring party’s agent.
9.6 Relationship of the Parties. CB and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.
9.7 Force Majeure. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
9.8 Delays. Customer acknowledges and agrees that if any phase of CB’s scheduled Services as set forth in an SOW or Order Schedule is delayed by more than 48 hours by any act or omission of Customer, including but not limited to Customer’s failure to make payments as set forth in Section 3, the scheduled completion of the Services or individual phases of the Services as set forth in the SOW or Order Schedule may be delayed. Customer agrees to pay CB compensation for the extended work at CB’s then standard rates for the required personnel. Customer will not be responsible for any extension period that is caused by circumstances within CB’s control.
9.9 Notices. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service, in each case addressed to the receiving party at its address set forth on an SOW or Order Schedule at the address first listed above for each party. Either party may change its address by giving written notice of such change to the other party.
9.10 Waiver and Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.