The following terms ("Master Service Agreement", "MSA", or "Agreement") governs the purchase and use of products, content, and services ("Services") provided by Cloudability, Inc. ("Cloudability", "Us", "We", or "Our"), located at 718 SW Alder Street, Portland, OR 97205, United States.
By accepting this Agreement, You Our customer ("You", "Your", or "Customer") are agreeing to these terms. You agree that You are executing this Agreement on behalf of Your entire organization, and represent and warrant that You have the right to do so. All other users from Your organization will be subject to the terms of this Agreement.
This Agreement is effective between You and Us as of the date You accept the Agreement (the "Effective Date").
Our Services are diverse and sometimes additional terms may be required for new Services that We introduce If additional terms are required, those terms will be presented to You for approval in a separate agreement ("Supplemental Services Agreement") which upon acceptance of which will become part of this Agreement.
Cloudability retrieves, stores and analyzes data for a variety of third party cloud infrastructure, platform, and software providers. Services include but are not limited to analytics, data, reporting, and optimization tools made available from Our websites.
Additional Users. You may choose to allow Your employees, contractors, or other agents access to Your Account ("Users") by supplying them with their own user identifications and passwords. You will be responsible for all Users added to Your Account as well as their compliance with this Agreement, applicable laws and regulations.
User Identification & Passwords. You are responsible for maintaining the confidentiality of Your Users identifications and passwords, which allow access to the Services.
Account Notifications. All Account notifications will be sent electronically, to the e-mail address provided in Your Registration Information. These communications are considered part of the Services and You may not be able to opt-out from receiving them.
Account Information. By submitting information, data, passwords, usernames, PINs, other log-in information, materials and other content through the Services about Your cloud services accounts ("Account Information"), You are expressly authorizing Cloudability to store, access and use the Account Information to provide You with the Services. You are responsible for the accuracy, quality, integrity and legality of Your Account Information (and of the means through which it was acquired by You or Your Users).
Service Data. You are responsible for authorizing and enabling Us to submit Your Account Information (including usernames and passwords) to third party services, websites or APIs that You designate, for the purposes of retrieving cost, usage, billing, and other data, statistics, or information necessary for providing the Services ("Service Data"). You acknowledge and agree that when we are accessing and retrieving Service Data from third parties, we are doing so at Your request.
Acceptable Use. You are responsible for Your Users' compliance with the acceptable use of Our Services as defined in our Acceptable Use Policy located here or attached as an exhibit to this Agreement.
Suspension of Services. We may suspend the provision of Services in the event You violate the terms of this Agreement or Our Acceptable Use Policy, or fail to pay amounts due. We may also temporarily suspend your access to the Service in the event that We deem it necessary to prevent harm to Your data or the Services. Any suspension will only be for the scope and duration necessary to limit harm to You, Cloudability, the Services, or third parties.
Operation of Purchased Services. We will (a) make Our Services available to You pursuant to this Agreement or any applicable Service Order, (b) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week except for (i) planned downtime for routine maintenance or periodic updating, (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), equipment failures, denial of service attacks, periodic updating, or any service provider failures or delays.
Support. We will provide Our standard level of technical support for the Services free of charge during Our regular business hours. Additional support options may be available for purchase as a Premium Service.
Data Protection. Cloudability will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Your Account Information, in accordance with applicable industry standards. Cloudability may access Account Information or Service Data as necessary to identify or resolve technical problems or to provide Users with support.
Beta Services. You may be invited or granted access to new and not-yet released features or functionality ("Beta Services"). Beta Services are for evaluation only and are not considered "Services" under this Agreement. We may discontinue Beta Services at any time or may choose to never make them fully available. We will have no harm or damage arising out of or in connection with any Beta Services.
Premium Services. Cloudability offers access to certain services for a fee ("Premium Services"). To enable and use the Premium Services, You are required to execute an order for such services, either by clicking a button within the Services or by completing an order form ("Service Order"), and pay the fees associated with the Premium Services that You have selected. Configuration, term, and pricing of Premium Services can be found in the billing section of Your Account or in the Service Order executed when procuring the Premium Service.
Subscriptions. Unless otherwise noted in a Service Order, different configurations of Our Services ("Edition" or "Offering") are purchased as subscriptions ("Subscriptions"). Additional Subscriptions to the same Edition may be added during a subscription term at the same pricing contained in the underlying Subscription. Any added Subscriptions will renew on the same date as the underlying subscription.
Usage Limits. Some of Our Services are subject to usage limits. For example, subscriptions to Cloudability monitoring services contain a limit ("Plan Limit") that refers to the aggregate U.S. Dollar equivalent of invoiced costs You have elected to be monitored by the Services for a specific period of time ("Monitored Costs"). If You exceed such a limit You will be charged for the additional usage as outlined in Your Service Order.
Fees. Our fees are billed in arrears each month unless otherwise noted in a Service Order. Unless otherwise stated, all fees are quoted in U.S. Dollars. Subscriptions generally include a flat fee for use of the Services ("Base Subscription Fee") up to and including a specific monthly amount of Monitored Cost defined in the Service Order. Subscriptions may also include fees for additional usage above and beyond the Plan Limit ("Additional Usage Fee"). Additional Usage Fees are billed as a percentage (the "Additional Usage Rate") of any Monitored Cost. Fees for the first month of a new Subscription will be prorated to reflect any partial month of service.
Invoicing and Payments. Invoices for Premium Services are presented and accessible via Your Account. All payment obligations are non-cancelable and all amounts paid are nonrefundable. If payment is to be made via credit card or electronic money transfer (i.e. ACH) such payment shall be chargeable upon invoice date and no receipt will be provided. Cloudability reserves the right to invoice You directly in the event that reasonable efforts made to obtain a credit card or ACH payment authorization fail.
Overdue Charges. Payment terms are net thirty (30) days from the date of the invoice, without offsets or deductions of any kind and payment is due in US dollars. Late payments will bear interest at 1.5% per month or the maximum rate permitted by law, whichever is less calculated from the date such amount was due until the date that payment is received by Cloudability.
Taxes. Cloudability's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You are responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Cloudability's income. You are responsible for paying all taxes associated with Your purchase of any Premium Services. If Cloudability has the legal obligation to pay or collect taxes for which You are responsible, the appropriate amount shall be invoiced to and paid by You unless You provide Cloudability with a valid tax exemption certificate authorized by the appropriate taxing authority.
Billing Disputes. If You believe Your bill is incorrect, You must contact Cloudability in writing within thirty (30) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Future Functionality. You agree that Your purchases are not contingent on the delivery of any future release of new features, functionality, nor are Your purchases dependent on any oral, written or public comments made by Cloudability regarding such features, functionality, or services.
Changes to Pricing and Fees. We reserve the right to modify Our prices and fees and to introduce new fees upon thirty (30) days prior notice to You. Any such changes will only become effective upon renewal of a Subscription term.
Free Trial. We offer free trials of Our Premium Services as a way for You to conduct an evaluation. Trials may be extended or terminated by Us for any reason at any time. If You are using Our Premium Services as part of a free trial, any data or information You enter into the Services, and any customizations made to the Services by or for You during Your trial period will be permanently lost unless You purchase a Subscription to the same Premium Service as those covered by the trial before the end of the trial period.
Indemnification by Us. We agree to defend You against any claim or suit made or brought against You by a third party alleging that Your acceptable use of Our Services in accordance with this Agreement infringes the intellectual property rights of that third party or violate any applicable law ("Claim Against You"), and will indemnify You from damages and reasonable attorney fees finally awarded against You or for amounts paid by You under a court-approved settlement of a Claim Against You, provided You: (i) promptly provide Us with written notice of any Claim Against You, (ii) give Us sole control over the defense and settlement of the Claim Against You provided that any settlement fully releases You from all liability, and (iii) provide Us with all necessary assistance to prepare and execute a defense, at Our Expense. If We receive notice of any infringement, We may (a) modify Our Services so that it no longer infringes (without substantively diminishing the features or functionality of the Services You have subscribed to) or, (b) Procure a license that enables You to continue to use the Services, or (c) terminate Your Service Order(s) with 30 days notice and provide You a refund of any prepaid fees covering the remainder of the term of those terminated Service Order(s).
Indemnification by You. You agree to defend, indemnify and hold harmless Cloudability, from and against all claim or suit made or brought against Us by a third party alleging that Your use of Our Services are in breach of the Agreement and that such breach violates any applicable law, or infringe the intellectual property rights of that third party ("Claim Against Us"), and will indemnify Us from any damages and reasonable attorney fees finally awarded against Us or for amounts paid by Us under a court-approved settlement of a Claim Against Us, provided We: (i) promptly provide You with written notice of any Claim Against Us, (ii) give You sole control over the defense and settlement of the Claim Against Us provided that any settlement fully releases Us from all liability, and (iii) provide You with all necessary assistance to prepare and execute a defense, at Your expense.
Representations. Each party to this Agreement represents that it has voluntarily entered into this Agreement and has the legal authority to do so, and is not barred from entering this Agreement by any applicable laws.
Warranties. The Services are provided "AS IS" and on an "AS AVAILABLE" basis and the entire risk as to satisfactory performance, accuracy, and results is with You. We do not warrant that the Services will be provided without interruption or be completely error free. We do warrant that (a) We will use commercially reasonable efforts to ensure that the Services are free of infection from any viruses or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, surreptitiously intercept or expropriate any system, data or personal information.
Disclaimers. CLOUDABILITY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
Proprietary Rights. Cloudability owns all worldwide right, title and interest in and to the Services including the underlying software platform including all worldwide intellectual property rights therein, that Cloudability uses to provide the Services ("Cloudability IP"). This Agreement does not convey any proprietary interest in or to any Cloudability IP or rights of entitlement to the use thereof except as expressly set forth herein. You acknowledge and agree that the fees paid to Cloudability apply only to the use of the Services by You.
Feedback. Feedback, comments and suggestions may be provided regarding improvements to the Services ("Feedback") and will be given entirely voluntary by You. Cloudability will be free to use, disclose, reproduce, license or otherwise distribute and exploit such Feedback as it sees fit, on a royalty-free irrevocable basis, entirely without obligation or restriction of any kind.
Trademarks. The Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Use of Your Logo and Trademarks by Us. You agree that Cloudability may display Your company name, and logo or trademark on Our websites and in connection with routine marketing of the Services.
Definition of Confidential Information. Each party understands that the other party may need to disclose certain non-public information relating to the disclosing party's business that is marked as "confidential" at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure in connection with the use and/or performance of the Services ("Confidential Information"). Confidential Information does not include any information that the receiving party can show: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the disclosing party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the disclosing party.
Protection of Confidential Information. The receiving party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except as expressly permitted herein) or disclose to any third person any such Confidential Information. Neither party will disclose to third parties the other's Confidential Information unless: (i) the other party has given its specific and express prior written approval, (ii) the disclosure is expressly allowed under this Agreement.
Compelled Disclosure. Notwithstanding any other provision, the receiving party may disclose Confidential Information it receives if compelled to do so by law, regulatory requirement or legal process. Unless prohibited by law or legal process, the receiving party will use its commercially reasonable efforts to give the disclosing party prior notice of the request for such disclosure and a reasonable period of time to respond to such request.
Anonymized Data. Cloudability may collect anonymous usage data with respect to the use of the Services to measure and analyze response rates and performance of the Services. Cloudability will use this usage data and Service Data for internal business purposes only, including improving, testing and providing the Services and may only disclose such usage data or Service Data in anonymous aggregate form (e.g. data aggregated from multiple customers' use of the Services, but without specifically identifying You or any other customer).
Limitation of Liability. EXCEPT FOR ANY INDEMNITY OBLIGATIONS OR BREACH OF CONFIDENTIALITY OBLGATIONS ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO OR USE OF THE SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR BREACH OF CONFIDENTIALITY AND INDEMNITY OBLGATIONS ABOVE, EACH PARTY'S LIABILITY FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE SUM OF ALL PAYMENTS YOU HAVE MADE TO CLOUDABILITY UNDER ALL SERVICE ORDERS IN THE LAST TWELVE (12) MONTHS OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER.
Links to Third Parties. The Services may contain links to third-party sites or resources. Cloudability provides these links as a convenience and does not endorse the companies or contents of any such sites. Cloudability is not responsible for the content of such sites or resources. If You decide to access any of the third-party web sites linked to the Services, You do this entirely at Your own risk.
Advertisements. The Services may include advertisements, which may be targeted to the content or information on the Services, queries made through the Services, or other information.
This Agreement commences on Effective Date and continues until all Service Orders hereunder have expired or have been terminated (the "Term").
The term of each Service Order is specified in the billing section of Your Account or in the relevant Service Order (the "Subscription Term").
A Subscription Term will automatically renew for a subsequent renewal term of the same length, unless either party notifies the other party of its intent not to renew. In the case of Service Orders where the Subscription Term is greater than 60 days, notice of non-renewal must be given at least sixty (60) days prior to the end of the then-current Subscription Term.
Termination for cause. Either party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach unless the breaching party cures such breach within 30 days of the date of such notice; or (ii) the other party becomes insolvent, enters into receivership, files a petition for bankruptcy, or any other proceeding related to the liquidation or assignment for the benefit of creditors.
Data Portability and Deletion. Upon any termination by You, the Services and/or Your Account (whichever is applicable) will no longer be accessible and all Account Information will be scheduled for deletion as soon as possible. Any cancellation request will be handled within 30 days of receipt of such request. Upon any termination or suspension, Cloudability will have no obligation to maintain any Account Information, data or any related information that was stored in Our database related to Your use of the Services, delete any Service Data, or forward any information to You (or to any third party).
Refund Upon Termination. If You choose to terminate this Agreement for cause as defined herein, We will refund to You any prepaid fees covering the remainder of the Subscription Term for all Service Orders. If this Agreement, or any individual Service Order, is terminated for any other reason, You will pay any and all unpaid fees covering the remainder of the current Subscription Term(s).
In no event will any termination relieve You of any obligation to pay fees owed to Us for the period prior to the effective date of termination.
Surviving Provisions. Any suspension or termination will not affect Your obligations or licenses to Cloudability under this Agreement (including, without limitation, ownership, confidentiality, indemnification, Service Data, and limitation of liability), which are intended to survive such suspension or termination.
Modification. Cloudability may modify or revise these Terms. In the event that Cloudability does so, Cloudability will notify You and provide You with the opportunity to accept the new terms, at which point Services will be provided under the new terms.
Jurisdiction. This Agreement, and Your relationship with Cloudability, shall be governed by the laws of the State of State of Oregon without regard to its conflict or choice of law provisions. Any dispute with Cloudability, or its officers, directors, employees, agents or affiliates, arising under or in relation to this Agreement shall be resolved exclusively through the state and federal courts within the county of Multnomah County, Oregon.
Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between Us regarding its subject matter and supersede all prior or contemporaneous Agreements (other than Service Orders) or understandings, written or oral, relating to its subject matter.
Assignment. You may not assign this Agreement, in whole or in part, without Cloudability's prior written consent, except in connection with a merger, acquisition, or sale of all or substantially all of Your assets, provided that You provide Cloudability with prior notice.
Relationship of the Parties. Nothing expressed by the acceptance of this Agreement is intended imply or create a partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship.
Severability. If any portion of this Agreement is found to be void or unenforceable, the remaining provisions will remain in full force and effect.
Order of Precedence. To the extent that conflicts occur between terms contained in this Agreement and those defined in a Service Order or a Supplemental Service Agreement, the order of precedence shall be: Service Order, then Supplemental Service Agreement, then Master Service Agreement.
Notices. All other notices under this Agreement other than Termination or an indemnifiable claim may be made via email. Notice shall be deemed made upon: a) personal delivery, b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid, or c) the first business day after sending by email. All notices should be addressed to:
Attn: Legal Department
718 SW Alder Street, Suite 300
Portland, OR 97205