Master Subscription Services Terms and Conditions
Last Updated: 2 October 2018
These Master Subscription Services Terms and Conditions (“Agreement”) apply to your (“Customer”) use of CloudSAFE Services.
- Services. CloudSAFE will provide to Customer subscription services (“Subscription Services”) as defined in a quote signed by Customer and CloudSAFE (the “Quote”). CloudSAFE may from time to time change, modify or discontinue any of the Services provided to Customer under this Agreement, including without limitation, changes to any underlying technology, in CloudSAFE’s sole and complete discretion. CloudSAFE may provide additional services not included in the Quote (“Out of Plan Services”). “Services” includes the Subscription Services and any Out of Plan Services. Out of Plan Service Rates can be found in the Customer Subscription Agreement.
- Term and Termination.
- Term. This Agreement shall commence on the Effective Date of the Quote and remain in effect for the number of months identified in the Quote. Thereafter, this Agreement will automatically renew, on each anniversary date of the Effective Date of the Quote, for an additional twelve (12) month term (each, a “Renewal Term”) at then current rates. “Term” includes the Initial Term and any Renewal Term.
- Termination for Cause. Either Party may terminate this Agreement for cause based upon: (i) a Party’s failure to perform or observe any material term or condition of this Agreement and failure to correct within thirty (30) days after receipt of written notice from the other Party of such failure; or (ii) a Party’s insolvency, bankruptcy, inability to pay debts as they become due, an assignment for the benefit of creditors or the appointment of a receiver for all or a substantial part of a Party’s business or property
- Early Termination. Either Party may terminate this Agreement without cause prior to the stated term expiration date (“Early Termination”). Should either Party wish to terminate without cause, the terminating Party shall provide a signed letter to that effect to the other Party no less than sixty (60) days prior to the desired termination date. Termination shall be effective on the date sixty (60) days after receipt of the termination letter, or such other later date specified in the termination letter. If Customer is terminating under this provision, the termination letter must be sent and addressed to the CEO of CloudSAFE, 24700 Northwestern Highway, Suite 103, Southfield MI 48075
- Effect of Termination. Upon the termination or expiration of this Agreement, CloudSAFE will assist Customer in the orderly termination of Services including timely transfer of the Services to another designated provider. Customer shall permit and assist CloudSAFE in removing all equipment owned by CloudSAFE from Customer’s sites within twenty-one (21) days from the termination date. CloudSAFE shall assist Customer in transferring and/or deleting Customer data from CloudSAFE owned equipment. Customer shall pay all unpaid and outstanding fees through the effective termination date including, but not limited to, subscription service fees, early termination fees, late fees, and end of service data transfer fees.
- Early Termination Fee. Customer may exercise its right of Early Termination, without fee or penalty, if the reason for termination is either (a) Upon CloudSAFE’s failure to perform or observe any material term or condition of this Agreement and failure to correct within thirty (30) days after receipt of written notice from Customer of such failure; or (b) in the event CloudSAFE imposes a rate increase of more than 15% over the previous month’s products and services during the term, not including any incremental products and services added to the agreement since the prior month, and where such increase is determined to be unacceptable to Customer. In the event Customer exercises its right of Early Termination for any other reason, then Customer shall be obligated to immediately pay an Early Termination Fee based upon the following terms:
In the event Customer opts to terminate Services early, CloudSAFE shall be owed an Early Termination Fee equal to Ninety Percent (90%) of all fees due under this Agreement for remainder of the Term.
- Subscription Services Fees and Payment Schedule. Customer agrees to pay all fees and charges in accordance with the payment schedule set forth in the Quote. All amounts are payable in U.S. dollars.
- Price Adjustment. CloudSAFE reserves the right to adjust the prices charged for Services during any term or Renewal Term, upon thirty (30) days written notice to Customer, when CloudSAFE determines that an adjustment is necessary due to price increase or to adequately deliver the Services to Customer.
- Failure to Pay. Customer acknowledges that its failure to pay any of the fees or charges payable hereunder, or any portion thereof, within fifteen (15) days of the due date will be a material breach of this Agreement for which CloudSAFE may, in addition to pursuing all other remedies, suspend Customer’s access to all Services and Customer data until payment in full is received from Customer. CloudSAFE shall also be entitled to a 1.5% late fee per month on any outstanding balances and any associated collection costs attributed to the Customer’s failure to pay.
- Taxes. It is understood that any federal, state or local taxes applicable shall be added to each invoice for Services or materials rendered under this Agreement. Customer shall pay any such taxes unless a valid exemption certificate is furnished to CloudSAFE for the state of use.
- Customer Authorized Contact. Customer will identify one primary and one secondary individual to be the CloudSAFE Customer authorized contacts. Customer authorized contact must notify CloudSAFE in writing when a primary and/or secondary authorized contact needs to be added or removed.
- Proprietary Rights of CloudSAFE. Customer acknowledges and agrees that CloudSAFE may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, produces, ideas, skills, designs, know-how or other intellectual property (each, a “Work”) owned by or licensed to CloudSAFE and CloudSAFE may also create additional Works based thereon in the performance of the Services, Managed Services or any other delivery of services and products (all of the foregoing, the “CloudSAFE Intellectual Property”). All such Works and CloudSAFE Intellectual Property, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and all derivative works thereto shall remain the sole and exclusive property of CloudSAFE or its Customer may not (i) download, copy, reproduce, prepare derivative works of, distribute, or publish any code, content or other resource used by CloudSAFE to provide Customer with any of the Services or with training or support for any of the Services (each of the foregoing, a “Service Resource”); (ii) reverse engineer, disassemble or decompile any Service Resource; or (iii) take any action to interfere with the operation of any of the Services. Except as specifically provided herein, nothing in this agreement provides Customer with any license or rights of use in or to any of the Services, Works or any other intellectual property of CloudSAFE or its licensors; and (c) nothing herein transfers to Customer and rights, title or interests in or to any Service or component thereof.
- Customer Content and Restrictions on the Use of the Services. Customer assumes sole responsibility for its proprietary data; the accuracy of materials hosted on CloudSAFE’s server(s), including, without limitation, all content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted (“Customer Content”); ensuring that Customer Content does not infringe or violate any right of any third party; and ensuring that the Customer Content complies with Customer’s obligations under this Agreement.
- Customer agrees that it will not use, or attempt to use, any of the Services in any manner:
- that in CloudSAFE’s sole judgment, causes or threatens to cause: (i) damage to systems or data owned by CloudSAFE or any of its customers, including without limitation, by uploading any virus, malware, harmful code, or other like functionality; or (ii) interference with, or the impairment of, the ability of CloudSAFE or its vendors to provide any of the Services to the Customer or other customers including without limitation, the use of recursive processes or robots;
- with any defamatory, obscene, threatening, malicious, or otherwise unlawful or inappropriate content;
- that violates or infringes the intellectual property or other legal rights of any person or entity;
- that is inconsistent with or prohibited by law;
- to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, and/or electronic checks; or
- to permit or allow any person or entity acting on your behalf to do any of the foregoing.
- Customer is prohibited, by itself or through any third party, from performing any vulnerability or security assessment of CloudSAFE or any component thereof, without first obtaining the written approval of CloudSAFE authorized personnel. A written request to obtain such authorization must include parameters on the type of assessment that may be performed, the identity of any third party that may be involved in performing the assessment, the tools that may be used to perform the assessment, and the specific date and time that the assessment may occur. CloudSAFE may approve or deny such requests, in CloudSAFE’s sole and complete discretion. If the request is approved, Customer agrees to adhere to the parameters and other limitations set forth by CloudSAFE.
- CloudSAFE reserves the right, in its sole discretion, immediately and without notice to Customer, to exclude or remove from its server(s), any Customer Content that violates this Agreement, or which otherwise may expose CloudSAFE to civil or criminal liability, public ridicule, or injury to business reputation. Such violation shall be deemed a material breach of this Agreement. CloudSAFE may, in its sole discretion, contact and report to legal authorities any illegal activity or content.
- Because the very nature of CloudSAFE’s services grants them the access to the Customer’s data, CloudSAFE agrees that Customer Content is confidential and CloudSAFE will take reasonable measures to prevent unauthorized access or transmission of Customer Content.
- Customer agrees that it will not use, or attempt to use, any of the Services in any manner:
- Insurance. CloudSAFE agrees to maintain, at its own expense, sufficient insurance coverage to enable it to meet its obligations created by this Agreement. CloudSAFE will maintain at least the following insurance policies: (a) Commercial General Liability, including bodily injury, property damage and personal injury; (b) Business Automobile Liability; and (c) Workers Compensation Insurance. Such insurance shall cover any CloudSAFE owned equipment placed at Customer’s location(s), and for coverage of any CloudSAFE personnel that may be onsite at Customer’s location(s).
- Indemnification. Customer agrees to indemnify, defend, and hold CloudSAFE, its directors, officers, employees and agents (“Indemnitees”) harmless, and defend any action brought against Indemnitees with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, that: (i) if true, would constitute a breach of any of Customer’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Customer; or (iii) any of the Customer Content infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
- Limitation of Liability. CLOUDSAFE SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. CLOUDSAFE SHALL HAVE NO LIABILITY WITH RESPECT TO CLOUDSAFE’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF CLOUDSAFE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE FOREGOING LIMITATION IS DETERMINED TO BE UNENFORCEABLE PURSUANT TO APPLICABLE LAW, THE LIABILITY OF CLOUDSAFE TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO CLOUDSAFE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT AND BREACH OF WARRANTY.
- CloudSAFE Representations and Disclaimer.
- Services. CloudSAFE represents that the Services under this Agreement shall be performed in a professional, workmanlike manner. See Service Level Objectives set forth in the Customer Subscription Agreement.
- Disclaimer. CloudSAFE makes no warranties, and CloudSAFE expressly disclaims all other warranties, express or implied, REGARDING THE SERVICES including, without limitation, warranties of merchantability and fitness for a particular purpose.
- Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter (and, as to trade secrets of each Party, for such longer time as such information remains a trade secret of such Party without unauthorized disclosure by the receiving Party hereunder), each Party will keep in confidence all Confidential Information (as defined below) of the other Party and neither Party will use or disclose to any person or entity, directly or indirectly, without the prior written approval of the other, any Confidential Information relating to the other Party obtained by virtue of this Agreement or the Services performed pursuant to the Agreement, except on a confidential basis to its business, legal and financial advisors or as required to be disclosed under applicable law or by legal process.
“Confidential Information” means information that a Party possesses or to which such Party has legal rights (for example, third party confidential information in such Party’s lawful possession) and includes, but is not limited to, technical processes and formulas, source and object code, product designs, fees, quotes and selling price and other unpublished financial information, product and business plans, marketing data, the terms and conditions of this Agreement, documents, copies of documents, data, summaries, reports and all other information of all kinds, whether oral, electronic or written.
Confidential Information does not include any information that is: (i) generally known or available to the public through no act of the receiving Party, (ii) already known to the receiving Party at the time of receiving such Information, (iii) independently developed by the receiving Party; or (iv) furnished to the receiving Party by a third party with the right to do so. Customer and CloudSAFE agree to use all reasonable precautions and take any action necessary to prevent the Confidential Information from being acquired, accessed or used by unauthorized persons.
- Authority. Each Party represents and warrants that, during the Term, such Party has the power and authority to enter into and fully perform its obligations under this Agreement. Customer further warrants that it will continue to have the legal right and authority during the term of this Agreement, to operate, configure, provide, place, install, upgrade, add, maintain and repair (and is authorized to do any of the foregoing to the extent the same are included in the Services) Customer’s hardware, software and data that comprises any of Customer’s information technology system upon which or related to which provides Services under this Agreement.
- Survival. Except as otherwise provided, any rights and duties of the Parties which by their nature extend beyond the expiration or termination of this Agreement, including but not limited to, limitation of liability, indemnity, confidentiality, ownership of work product, and survival of obligations, shall survive the termination of this Agreement.
- Assignment. Neither this Agreement nor any right or obligation hereunder shall be assigned or delegated, in whole or part, by either party without the prior express written consent of the other which shall not be unreasonably withheld, conditioned or delayed and for which no additional consideration shall be necessary; provided, however, that either party may, without the written consent of the other, assign this Agreement and its rights and delegate its obligations hereunder in connection with the transfer or sale of all or substantially all of its business related to this Agreement, or in the event of its merger, consolidation, change in control or similar transaction. Any permitted assignee shall assume all assigned obligations of its assignor under this Agreement. Any purported assignment in violation of this section shall be void and of no effect.
- Notice. Any notice required or provided for under this Agreement will be in writing and sent by overnight courier, or by registered or certified mail, postage prepaid, to the address of the receiving Party. Either Party may change its address for notice purposes by notifying the other Party in this manner.
- Export Compliance. Customer shall not, directly or indirectly, export, re-export or transship Services or other technology in violation of any applicable U.S. export control laws and regulations or any other applicable export control laws of any country having jurisdiction over the parties or the transaction contemplated by this Agreement.
- Governing Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without reference to its conflict of laws provision. Any legal action arising out of or relating to this Agreement shall be brought in the state courts of Oakland County, Michigan, to the exclusion of any other court or forum, and the prevailing Party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that Party may be entitled. This provision shall be construed as applicable to the entire No Party may commence an action under this Agreement more than one (1) year after the occurrence of the breach, or, in the event the breach is not discovered by the injured Party when it has occurred, more than one (1) year after the breach would have been discovered by a reasonably diligent person.
- Publicity and Customer Reference. Either Party may advertise the relationship created pursuant to this Agreement. Notwithstanding anything to the contrary in this Agreement, CloudSAFE may request that Customer periodically serve as a Customer reference, and agrees to allow its name, logo and specific Product and Service offerings to be used on CloudSAFE’s corporate website, social media and on sales presentations where it, in the ordinary course of business, identifies some customers from time to Customer also agrees to allow CloudSAFE to create, with customer’s support and collaboration, and publicize a new customer acquisition message and/or press release and/or case study, including comments from customer, which will include customer name, logo and specific Product and Service offerings for which customer has contracted.
- No Waiver; Severability. The failure of either Party at any time to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of either Party thereafter to enforce each and every provision thereof in accordance with its In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
- Force Majeure. No liability shall result to Customer or CloudSAFE from delay in performance or nonperformance caused by circumstances beyond the reasonable control of Customer or CloudSAFE including, but not limited to, acts of God, acts of terrorism, fire, war, embargo, any law or governmental regulations or labor dispute, and the period of performance shall be deemed extended to reflect such delay as agreed upon by the Parties.
- Carrier Services. Customer understands that CloudSAFE does not own or control any of the Carrier Services utilized in its services and agrees that CloudSAFE is not responsible or liable for performance or non-performance of the Carriers.
- Suitability of Existing Environment. Client represents and warrants that, during the Term, all Client owned equipment, software, data connections and any other component that is required to connect to the CloudSAFE network is and shall remain suitable for such purpose. CloudSAFE may from time to time update the minimum specifications and requirements to connect to the systems.
- Standard Maintenance. CloudSAFE’s standard maintenance windows are Friday 8:00PM ET until 2:00AM ET; Saturday 8:00PM ET until 2:00AM ET; and/or Sunday 6:00PM ET until 2:00AM ET. CloudSAFE will communicate planned maintenance with Customer Authorized Contacts.
- Emergency Maintenance. CloudSAFE may interrupt the Services outside the standard maintenance windows in the event of an emergency or as CloudSAFE deems necessary, in its sole and complete discretion in an effort to prevent an incident or emergency. CloudSAFE will use commercially reasonable efforts to notify Customer Authorized Contacts of any emergency or unplanned maintenance.
- Entire Agreement. This Agreement together with the Exhibits provided in the Customer Subscription Agreement contain all the agreements, representations and understandings of the Parties and supersedes any previous understandings, commitments, or agreements, oral or written, with respect to the subject matter of this Agreement and shall prevail over any inconsistent terms or conditions contained in any other document, or implied by law, trade custom, practice or course of dealing. This Agreement may be modified by CloudSAFE from time to time; CloudSAFE will provide notification of such changes via email to the Customer Authorized Contacts.