Last modified: August 13, 2020
BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT BY ANY MEANS, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS “CUSTOMER” HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “CUSTOMER” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE THAT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICES.
This CloudApper SaaS Agreement (this “Agreement”) is between CloudApper, Inc. (“Provider”) and the individual or entity that has executed this Agreement (“Customer”). This Agreement sets forth the terms and conditions that govern orders placed by Customer for Services under this Agreement.
1.1 Except to the extent expressly provided otherwise, in this Agreement:
“Account” means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
“Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
“Business Day” means any weekday other than a bank or public holiday in the United States;
“Business Hours” means the hours of 9:00 a.m. to 5:00 p.m. Eastern Time on a Business Day;
“Charges” means such amounts as may be agreed in writing by the parties from time to time or amounts for any Services that are selected by Customer;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);
“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding data with respect to which the Provider is a data controller;
“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation;
“Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
“Effective Date” means the date of execution of this Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosted Services” means any Provider SaaS solution used by Customer, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
“Hosted Services Defect” means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorized by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorized by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services;
“Intellectual Property Rights” means all intellectual property rights whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
“Minimum Term” means, in respect of this Agreement, the period of one (1) month beginning on the Effective Date;
“Mobile App” means any mobile application used in conjunction with or as a part of the Hosted Services that is made available by the Provider or through the Hosted Services;
“Personal Data” has the meaning given to it in the General Data Protection Regulation (Regulation (EU) 2016/679);
“Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
“Schedule” means any schedule attached to the main body of this Agreement;
“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
“Set Up Services” means the configuration, implementation and integration of the Hosted Services;
“Software” means the object code version of any software to which Customer is provided access as part of the
Hosted Services, including any updates or new versions;
“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
“Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
“Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
“Update” means a hotfix, patch or minor version update to any Platform software; and
“Upgrade” means a major version upgrade of any Platform software.
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 19 or any other provision of this Agreement.
3. Set Up Services
3.1 The Provider shall provide the Set Up Services to the Customer.
3.2 The Provider shall use reasonable endeavors to ensure that the Set Up Services are provided upon or promptly following the Effective Date.
3.3 The Customer acknowledges that a delay in the Customer performing its obligations in this Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 18.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.
3.4 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.
4. Hosted Services
4.1 The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account upon the completion of the Set Up Services.
4.2 The Provider hereby grants to the Customer a non-exclusive license to use the Hosted Services by means of a Supported Web Browser during the Term.
4.3 The license granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer; and
(c) the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in Customer’s online Account, providing that the Customer may add or remove concurrent user licenses in accordance with the procedure set out therein.
4.4 Customer shall not, and shall not permit anyone to: (i) copy or republish the Hosted Services or Software, (ii) make the Hosted Services available to any person other than authorized users, (iii) use or access the Hosted Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the Hosted Services or Documentation, (v) remove, modify or obscure any
copyright, trademark or other proprietary notices contained in the Software used to provide the Hosted Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code
of the Software used to provide the Hosted Services, except and only to the extent such activity is expressly
permitted by applicable law, (vii) make any alteration to the Platform, (viii) republish or redistribute any content or material from the Hosted Services, (ix) sub-license its right to access and use the Hosted Services without express consent from Provider, or (x) access the Hosted Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Provider shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Provider.
4.5 The Customer shall use reasonable endeavors, including reasonable security measures relating to Account access details, to ensure that no unauthorized person may gain access to the Hosted Services using an Account.
4.6 The parties acknowledge and agree that Schedule 1 (Availability SLA) shall govern the availability of the Hosted Services.
4.7 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.8 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.9 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.10 The Provider may suspend the provision of the Hosted Services if Customer fails to timely pay any undisputed amount under this Agreement but only after Provider notifies Customer of such failure and such failure continues for thirty (30) days or more after the payment due date. Suspension of the Hosted Services shall not release Customer of its payment obligations under this Agreement.
4.11 Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the Hosted Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Provider exercises no control over the content of the information transmitted by Customer or its users through the Hosted Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
5. Maintenance Services
5.1 The Provider shall provide the Maintenance Services to the Customer during the Term.
5.2 The Provider shall provide the Maintenance Services with reasonable skill and care.
5.3 The Provider shall provide the Maintenance Services in accordance with Schedule 2 (Maintenance SLA).
5.4 The Provider may suspend the provision of the Maintenance Services if Customer fails to timely pay any undisputed amount under this Agreement but only after Provider notifies Customer of such failure and such failure continues for thirty (30) days or more after the payment due date.
6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall provide the Support Services with reasonable skill and care.
6.3 The Provider shall provide the Support Services in accordance with Schedule 3 (Support SLA).
6.4 The Provider may suspend the provision of the Support Services if Customer fails to timely pay any undisputed amount under this Agreement but only after Provider notifies Customer of such failure and such failure continues for thirty (30) days or more after the payment due date.
7. Customer Obligations
7.1 Except to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) governmental, legal and regulatory licenses, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.
7.2 The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.
7.3 Customer shall: (a) notify Provider immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Provider immediately and use reasonable efforts to stop any unauthorized use of the Hosted Services that is known or suspected by Customer or any user, and (c) not provide false identity information to gain access to or use the Hosted Services.
7.4 Customer acknowledges that use of the Hosted Services may have inherent risks and may be governed by certain laws or regulations. Customer understands and agrees that Provider is acting solely in the capacity of a technology enabler and Customer therefore assumes sole responsibility for complying with any such laws or regulations regarding use of the Hosted Services and Software.
8. Customer Data
8.1 The Customer hereby grants to the Provider a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement.
8.2 The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
8.3 The Provider shall create a back-up copy of the Customer Data at least monthly, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
8.4 The Provider shall use all reasonable endeavors to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 8.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
9. Mobile App
9.1 The parties acknowledge and agree that the use of the Mobile App, the parties’ respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to this Agreement.
10. No assignment of Intellectual Property Rights
10.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
11.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
11.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 11.2.
11.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
11.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ written notice of the variation.
12.1 The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.
12.2 The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 12.
12.3 The Customer must pay the Charges by debit card, credit card, direct debit, bank transfer or check (using such payment details as are notified by the Provider to the Customer from time to time).
12.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 15% per annum (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
13.1 Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Provider software and Documentation are deemed Confidential Information of Provider.
13.2 Confidentiality. During the term of this Agreement and for 5 years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
13.3 Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.
14. Data Protection
14.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
14.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
14.3 The Provider shall only process the Customer Personal Data during the Term and for not more than 90 days following the end of the Term, subject to the other provisions of this Clause 14.
14.4 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data) as set out in this Agreement or any other document agreed by the parties in writing.
14.5 Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.
14.6 The Provider shall ensure that persons authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
14.7 The Provider and the Customer shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Customer Personal Data.
14.8 The Provider is hereby authorized by the Customer, as at the Effective Date, to engage with any third parties as needed to process the Customer Personal Data.
14.9 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organizational measures to assist the Customer with the fulfillment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
14.10 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.
14.11 The Provider shall, at the choice of the Customer, delete all of the Customer Personal Data after the provision of services relating to the processing, and shall delete existing copies except to the extent that applicable law requires storage of the relevant Personal Data.
14.12 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavors promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
15.1 The Provider represents and warrants that (i) it has validly entered into this SaaS Agreement and has the legal power to do so, and (ii) it will provide the Hosted Services in a professional manner consistent with general industry standards and that the Hosted Services will perform substantially in accordance with the Documentation. For any material breach of a warranty, Customer’s exclusive remedy shall be as provided in Section 20.
15.2 PROVIDER WARRANTS THAT THE HOSTED SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. PROVIDER DOES NOT GUARANTEE THAT THE HOSTED SERVICES WILL BE ENTIRELY FREE OF SECURITY VULNERABILITIES AND PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT PROVIDER WILL CORRECT ALL HOSTED SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE HOSTED SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY PROVIDER (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS SAAS AGREEMENT. NEITHER PROVIDER NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE HOSTED SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL PROVIDER OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.
16.1 Indemnification by Provider. If a third party makes a claim against Customer that the Hosted Services infringes any patent, copyright or trademark, or misappropriates any trade secret, Provider shall defend Customer and its directors, officers and employees against the claim at Provider’s expense and Provider shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Provider, to the extent arising from the claim. Provider shall have no liability for any claim based on (a) the Customer Data, (b) modification of the Hosted Services not authorized by Provider, (c) the use of biometric identification technology within the Hosted Services or Software, or (d) use of the Hosted Services other than in accordance with the Documentation and this Agreement. Provider may, at its sole option and expense, procure for Customer the right to continue use of the Hosted Services, modify the Hosted Services in a manner that does not materially impair the functionality, or terminate the Term and repay to Customer any amount paid by Customer with respect to the Term following the termination date.
16.2 Indemnification by Customer. If a third party makes a claim against Provider that the Customer Data infringes
any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Provider and its
directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses,
damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a
written settlement agreement signed by Customer, to the extent arising from the claim.
16.3 Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c)
provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority
reasonably requested by the other party in the defense and settlement of the claim.
17. Limitations and exclusions of liability
17.1 NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF PROVIDER) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections 4.4, 13, and 16.
18. Force Majeure Event
18.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
18.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
18.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
19.1 Either party may terminate this Agreement by giving to the other party not less than 30 days’ written notice of termination.
19.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of this Agreement, and the breach is not remediable; or
(b) the other party commits a material breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.
19.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
19.4 The Provider may terminate this Agreement immediately by giving written notice to the Customer if:
(a) any amount due to be paid by the Customer to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Provider has given to the Customer written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 19.4.
20. Effects of termination
20.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, except that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.10, 9, 12.2, 12.4, 13, 14, 16, 17, 20, 23, 24, 25, 26, 27.1, 27.2, 28, 29 and 30.
20.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
20.3 Within 30 days following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement, without prejudice to the parties’ other legal rights.
20.4 All refunds requested by Customer shall be subject to the CloudApper Returns Policy.
21.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 21.2):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
21.2 The Provider’s contact details for notices under this Clause 21 are as follows:
Attn: Legal Counsel
1050 Crown Pointe Pkwy.
Atlanta, GA 30339
21.3 The addressee and contact details set out in Clause 21.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 21.
22.1 Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement.
22.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
22.3 Notwithstanding the provisions of this Clause 22 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
23.1 The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider’s contractual rights and obligations under this Agreement.
23.2 The Customer must not assign, transfer or otherwise deal with the Customer’s contractual rights and/or obligations under this Agreement without the prior written consent of the Provider.
24. No waivers
24.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
24.2 No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.
25.1 If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
25.2 If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
26. Third party rights
26.1 This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
26.2 The exercise of the parties’ rights under this Agreement is not subject to the consent of any third party.
27.1 This Agreement may not be varied except in accordance with this Clause 27.
27.2 This Agreement may be varied by means of a written document signed by or on behalf of each party.
27.3 The Provider may vary this Agreement by giving to the Customer at least 30 days’ written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 27.3, the Customer shall have the right to terminate this Agreement by giving written notice of termination to the Provider at any time during the period of 14 days following receipt of the Provider’s notice.
28. Entire agreement
28.1 The main body of this Agreement and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
28.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.
28.3 The provisions of this Clause 28 are subject to Clause 17.
29. Law and jurisdiction
29.1 This Agreement shall be governed by and construed in accordance with the state of Georgia, USA.
29.2 Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of the United States of America.
30.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
30.2 The Clause headings do not affect the interpretation of this Agreement.
30.3 References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
30.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Schedule 1 (Availability SLA)
1.1 This Schedule 1 sets out the Provider’s availability commitments relating to the Hosted Services.
1.2 In this Schedule 1, “uptime” means the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services.
2.1 The Provider shall use reasonable efforts to ensure that the uptime for the Hosted Services is at least 99% during each calendar month.
2.2 The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology.
3.1 Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime goal given in Paragraph 2.1:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Provider’s hosting infrastructure services provider;
(d) a fault or failure of the Customer’s computer systems or networks;
(e) any breach by the Customer of this Agreement; or
(f) scheduled maintenance carried out in accordance with this Agreement.
Schedule 2 (Maintenance SLA)
1.1 This Schedule 2 sets out the service levels applicable to the Maintenance Services.
2.1 The Provider shall where practicable give to the Customer at least 5 Business Days’ prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider’s other notice obligations under this Schedule 2.
2.2 The Provider shall make reasonable efforts to provide scheduled Maintenance Services outside Business Hours.
3.1 The Provider shall apply Updates to the Platform as follows:
(a) third party security Updates shall be applied to the Platform promptly following release by the relevant third party, providing that the Provider may acting reasonably decide not to apply any particular third party security Update;
(b) the Provider’s security Updates shall be applied to the Platform promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update; and
(c) other Updates shall be applied to the Platform in accordance with any timetable notified by the Provider to the Customer.
4.1 The Provider shall produce Upgrades as needed during the Term.
4.2 The Provider shall give to the Customer at least 5 Business Days’ prior written notice of the application of an Upgrade to the Platform.
4.3 The Provider shall apply each Upgrade to the Platform within any period notified by the Provider to the Customer.
Schedule 3 (Support SLA)
1.1 This Schedule 3 sets out the service levels applicable to the Support Services.
2.1 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 3.
2.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
2.3 The Provider shall ensure that the helpdesk is accessible by email and using the Provider’s web-based ticketing system.
2.4 The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.
2.5 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.
3.1 Issues raised through the Support Services shall be categorized as follows:
(a) critical: the Hosted Services are inoperable or a core function of the Hosted Services is unavailable;
(b) serious: a core function of the Hosted Services is significantly impaired;
(c) moderate: a core function of the Hosted Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Hosted Services is significantly impaired; and
(d) minor: any impairment of the Hosted Services not falling into the above categories; and any cosmetic issue affecting the Hosted Services.
3.2 The Provider shall determine, acting reasonably, into which severity category an issue falls.
3.3 The Provider shall use reasonable efforts to respond to requests for Support Services promptly.
3.4 The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgment of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.
3.5 The Provider shall use reasonable efforts to resolve issues raised through the Support Services promptly.
4.1 The Support Services shall be provided remotely, except to the extent that the parties agree otherwise in writing.
5.1 If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceed 16 then:
(a) the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and
(b) the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.
5.2 The Provider shall have no obligation to provide Support Services in respect of any issue caused by:
(a) the improper use of the Hosted Services by the Customer; or
(b) any alteration to the Hosted Services made without the prior consent of the Provider.