These standard partner terms ( Partner Terms) together with the Order Form (as defined below) and any other terms referred to in these Partner Terms constitute the agreement between the legal entity named as “Customer” in the Order Form (Partner) and CloudM Inc., a Delaware corporation, whose registered office is at 251 Little Falls Drive, Wilmington 19808, Delaware 19808 (CloudM) for the provision of the CloudM Products (as defined below) (Agreement).

1 Definitions and Interpretation

The following definitions and rules of interpretation apply in these Partner Terms.

1.1 Definitions:

Affiliate: any person or entity that directly or indirectly controls, is controlled by, or is under common control with another entity. For purposes of this definition, the term control(s), means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise;

Business Day: a day other than a Saturday, Sunday or federal holiday in the United States;

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day;

Charges: the amounts payable by the Partner to CloudM for the CloudM Products as indicated in the relevant Order Form and/or Statement of Work; 

CloudM Brand Guidelines: the brand guidelines available in the “Content Hub > Marketing > Listing Pack” section of the Partner Portal or from CloudM upon request; 

CloudM Migrate: CloudM’s proprietary tool allowing users to migrate user and file data from one domain or environment to another cloud-hosted domain, as further described in the Documentation, and available as downloadable software (Migrate (Self-Hosted)) or hosted software-as-a-service (Migrate (Hosted));

CloudM Products: the Modules and/or Services, as the context requires;

Confidential Information: information that is proprietary or confidential and is either clearly identified as such or would be regarded as confidential by a reasonable business person;

Consulting Services: guided training sessions prepared and delivered by a CloudM specialist to give the End User the resources, knowledge and confidence to use one or more Module as further described in the applicable End User Terms;

Consumer Prices Index: the U.S. Consumer Price Index for All Urban Customers, U.S. City Average – All Items published by the U.S. Bureau of Labor Statistics;

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: have the meaning given in the Data Protection Legislation;

Data Protection Legislation: all legislation and regulatory requirements of the United States and its states and any other jurisdictions in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) under this Agreement; and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party; Data Protection Legislation may include, without limitation, the California Consumer Privacy Act, and/or the Data Protection Act 2018, the retained EU law version of the GDPR, as it forms part of the laws of England and Wales,  Scotland and Northern Ireland by virtue of section 3 of the European (Withdrawal) Act 2018 as amended by Schedule 1 of the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419) (UK GDPR), and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426);

Documentation: the documentation for each Module set out at https://support.cloudm.io/hc/en-us (as may be amended from time to time) and any additional user guides or other technical information made available to the Partner by CloudM in relation to the Modules;

Domain(s): the Microsoft 365 or Google Workspace domain(s) in relation to which the End User intends to migrate or manage data using the CloudM Products;

Effective Date: the earlier of (i) the date of execution of the Order Form; or (ii) the date on which CloudM commences supplying CloudM Products to the End User or the Partner, as applicable. 

End User: the final purchaser that has acquired the CloudM Product from the Partner for its internal use and not for resale, remarketing or distribution, as indicated in the Order Form;

End User Terms: the end user and/or services terms applicable to each CloudM Product, being:

• for the SaaS Modules and Migrate (Hosted): the SaaS Subscription Agreement available at https://www.cloudm.io/legal/saas-subscription-agreement/;
• for Migrate (self-Hosted): the Migrate EULA available at https://www.cloudm.io/legal/migrate-self-hosted-eula/;
• for Consulting Services, the Consulting Services Terms available at https://www.cloudm.io/legal/consulting-terms/; and
• for Migrations Services and Implementations Services, the terms set out in the applicable Statement of Work.

Implementation Services: the implementation services delivered by CloudM’s professional services team as further described in the relevant Statement of Work;

Insolvency Event: an insolvency event arises when: (i) a party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; (ii) a party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors, or makes or seeks to make a general assignment for the benefit of its creditors; (iii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for voluntary or involuntary bankruptcy or otherwise for or in connection with the winding up of a party; (iv) an application is made to court, or an order is made, for the appointment of an administrator, receiver, trustee, custodian, or similar agent to take charge of or sell any material portion of its property or business (Administrator) or if a notice of intention to appoint an Administrator is given or if an Administrator is appointed, over the other party; (v) the holder of a qualifying floating charge over the assets of a party (being a company) has become entitled to appoint or has appointed an administrative receiver; (vi) a person becomes entitled to appoint a receiver over all or any of the assets of a party or a receiver is appointed over all or any of the assets of a party; (vii) a creditor or encumbrancer of a attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of a party’s assets and such attachment or process is not discharged within 14 days; (viii) any event occurs, or proceeding is taken, with respect to a party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in sections (i) to (vii) (inclusive); or (ix) a party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and similar and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Legislation: any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party;

License Pool: a bulk order of licenses and/or subscriptions (as applicable) to one or more of the Modules as further described at clause 5.4;

Migrate-as-a-Subscription (MaaS): an annual subscription program available to authorized resellers under which the Partner will be granted access to a portal (MaaS Portal) allowing them to access a CloudM Migrate (Self-Hosted) License Pool for onward allocation to End Users, either as standalone licenses, or as part of wider services provided by the Partner;

Modules: CloudM Migrate, CloudM Automate, CloudM Archive, CloudM Backup and CloudM Email Signature, together with any other modules developed by CloudM which the Partner may purchase from CloudM;

Order Form: the order form executed by CloudM and the Partner, the order form completed by the Partner on the Partner Portal, or any other document agreed between CloudM and the Partner and detailing the CloudM Products purchased by the Partner, as applicable;

Partner Portal: CloudM’s partner portal accessible at https://portal.cloudm.io; 

Renewable Products: the SaaS Modules and Migrate-as-a-Subscription (MaaS); 

SaaS Modules: CloudM’s software-as-a-service Google Workspace user & data management tools, including Automate, Archive, Backup and Email Signatures, as further described in the End User Terms;

Services: the Implementation Services, Migration Services and/or Consulting Services, as the context requires;

Statement of Work: the statement of work for Migration Services, Implementation Services, or any other professional services as agreed between CloudM and the Partner; 

Trademarks: the registered trademark and trademark applications and all unregistered trademarks and logos of CloudM or its Affiliates anywhere in the world, including CloudM and the CloudM logo, together with any further trademarks which CloudM may permit or procure permission for the Partner by notice in writing to use in respect of the CloudM Products.

1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.2 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.3 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

1.4 A reference to writing or written includes e-mail, but not fax. 

1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

2 How this Agreement works

2.1 This Agreement is formed upon the Order Form being executed by the parties, and each validly executed Order Form forms a separate agreement between the parties subject to these Partner Terms. The Partner may opt to purchase all or only certain CloudM Products, and only the terms of this Agreement relevant to the CloudM Products indicated in the Order Form apply.

2.2 The Agreement only grants to the Partner a license to resell the CloudM Products, and does not transfer any right, title or interest in the same to the Partner or its customers. Use of the terms “sell”, “license”, “purchase”, “license fees” and “price” will be interpreted in accordance with this clause.

2.3 The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of the Partner’s general terms and conditions contained in any purchase order or other document issued by the Partner unless otherwise agreed between the parties.

3 Warranties

3.2 Each party represents, warrants and undertakes that (i) it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and to grant the rights and licenses referred to in this Agreement and that these Partner Terms are accepted by its duly authorized representative and represents a binding commitment on it; (ii) without affecting its other obligations under this Agreement, it shall comply with all applicable Legislation in the performance of its obligations under this Agreement; and (iii) this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

3.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL CLOUDM PRODUCTS ARE PROVIDED “AS-IS” AND “AS-AVAILABLE” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUDM DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

4 Partner’s undertakings

4.1 The Partner undertakes not to sell either directly or indirectly, or assign or transfer, any CloudM Product to any person or entity if the Partner knows or has reason to suspect that the person or entity may resell any or all of the CloudM Products to a third party without the express written permission of CloudM. Where CloudM agrees to any such appointment, the Partner shall ensure that it enters into a written contract with such sales agent or sub-reseller on terms which provide at least the same level of protection to CloudM as set out in this Agreement. 

4.2 The Partner undertakes not to resell Modules or Services to any federal, provincial, local or foreign government or political division thereof, any court or arbitrator without CloudM’s written consent. 

4.3 The Partner warrants and represents to CloudM that it will (i) employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Partner’s obligations under this Agreement; (ii) within 14 days of a written request from CloudM, provide such information as is reasonably requested by CloudM about the Partner’s processes and controls to confirm compliance with this Agreement; and (iii) inform CloudM immediately of any changes in ownership of the Partner and of any change in its organisation or method of doing business which might affect the performance of the Partner’s obligations under this Agreement. 

4.4 The Partner undertakes that, on receipt of a request from CloudM and subject to the provisions of clause 11 (Confidentiality), it will provide CloudM with such information about End Users as is required by CloudM for the purposes of confirming compliance and/or enforcing the End User Terms.

4.5 Without prejudice to all other remedies of CloudM, the Partner shall defend, indemnify and hold harmless CloudM, its Affiliates, and their respective officers, directors and employees (each, an Indemnitee) against all claims, actions and proceedings, losses, damages, fines, charges and penalties (financial and otherwise), expenses and costs directly or indirectly arising out of or in connection with: (a) a breach by the Partner of the terms of this Agreement; and (b) the Partner’s marketing, installation, sale, payment and/or support in connection with the Modules; and (c) any fraud, gross negligence or willful misconduct by Partner or its personnel. CloudM will promptly give written notice of the such a claim to Partner, provided, however, that the omission of such notice shall not relieve Partner of its obligations with respect to such claim, except to the extent that Partner can establish actual prejudice as a result thereof. Partner will have the right to control the defense of an indemnified claim at Partner’s expense; however CloudM shall have the right to monitor the defense undertaken by Partner and to participate in any litigation, negotiations, and/or settlements related to a claim at Partner’s expense and with counsel of its choosing. Partner shall not agree to any settlement that requires Indemnitee to incur liability (other than the payment of a monetary amount, which is to be paid by Partner), admit liability or fault, or otherwise suffer any adverse consequence without CloudM’s prior written consent. In addition, Partner shall not settle a claim unless the settlement fully releases the affected Indemnitee. If Partner does not promptly assume control over the defense of an indemnified claim, then CloudM may defend the claim with counsel of its choosing or settle the claim, each at Partner’s expense pursuant to Partner’s obligations under this clause 4.5.

5 Product-specific terms

5.1 End User Terms – The Modules and Services are subject to the applicable End User Terms, and the Partner shall ensure that the End Users are aware of such terms, and of the requirement to accept them, prior to placing an order for any CloudM Product. 

5.2 Modules – CloudM warrants to the Partner that the Modules will operate substantially in accordance with, and perform, the material functions and features as set out in the applicable part(s) of the Documentation (as may be amended from time to time). CloudM may update or modify the Modules at any time, provided that such update or modification does not materially diminishes the core functionalities of the Modules.  CloudM reserves the right to monitor End User’s usage of the Modules, and in the event that an End User’s usage exceeds the number of licenses or subscriptions to Modules set out in the relevant Order Form, or accesses additional Modules not included in the Order Form (Additional Licenses),  the Additional Licenses shall be charged to the Partner at CloudM’s then-current list price (or such other pricing as agreed between the parties). 

5.3 Renewable Products – Each subscription or license to a Renewable Product will renew automatically at the end of the term indicated in the Order Form (Initial Term) for consecutive additional terms of 12 months (each a Renewal Term), unless and until terminated by either party on 30 days’ prior notice to the other party, such notice to expire at the end of the Initial Term or then current Renewal Term, as the case may be. CloudM shall be entitled to amend the Charges for the Renewable Products on 60 days’ prior notice to the Partner, such notice to expire at the end of the Initial Term or then current Renewal Term. 

5.4 License Pool – License Pools shall expire on the date falling 12 months after the date of execution of the Order Form (License Pool Term), save that all license keys which have been validly allocated to an End User during the License Pool Term will remain valid until (a) in the case of CloudM Migrate, the earliest of (i) completion of a one-off migration per license, or (ii) 12 months from the date of issue of the relevant license key(s);  and (b) in respect of the SaaS Modules, 12 months from the date of issue of the relevant license key. 

5.5 Migrate-as-a-Subscription (MaaS) – Where the partner subscribes to MaaS (as indicated in the Order Form), CloudM grants the Partner the non-exclusive, non-transferable right to access a License Pool for Migrate (Self-Hosted) licenses via the MaaS Portal at any time during the subscription period indicated in the Order Form. License Pools accessed via the MaaS Portal expire on the date falling 12 months after the Effective Date in accordance with the provisions of clause 5.4(a). For the avoidance of doubt, any license not allocated or used within that period will not be carried over to the next subscription period. If the Partner allocates more licenses than included in its MaaS subscription, CloudM shall invoice the Partner for such additional licenses at the overage rate indicated in the Order Form, unless the Partner upgrades its MaaS subscription to a higher tier plan covering  its actual license consumption. 

6 Charges and payment

6.1 Unless otherwise indicated in the Order Form, the Charges are payable annually in advance,  and CloudM will issue the initial invoice on execution of the Order Form. All payments due to CloudM shall be made in full in the currency and manner indicated in the invoice within 30 days of the date of the same, unless otherwise agreed in writing between CloudM and the Partner. CloudM cannot accept payments by check.

6.2 Any and all expenses, costs and charges incurred by the Partner in the performance of its obligations under this Agreement shall be paid by the Partner unless CloudM has expressly agreed beforehand in writing to pay such expenses, costs and charges. 

6.3 The Partner shall not be entitled by reason of any set-off, counterclaim, abatement, or other similar deduction to withhold payment of any amount due to CloudM.

6.4 The Partner shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of the CloudM Products. All amounts payable by the Partner exclude amounts in respect of value added tax (VAT) or any equivalent taxes in the relevant jurisdiction, which the Partner may additionally be liable to pay to CloudM where applicable.

6.5 If the Partner fails to make any payment due to CloudM under this Agreement by the due date for payment, then, without limiting CloudM’s remedies under clauses 6.7 and 14.2, the Partner shall pay interest on the overdue amount at the rate of 4% per annum above the Federal Reserve’s base rate from time to time (or the highest amount permitted by law). Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Partner shall pay the interest together with the overdue amount.

6.6 The Partner shall reimburse CloudM for all costs incurred by CloudM in collecting any late payments or interest, including legal fees, court costs and collection agency fees.

6.7 If payment remains overdue for 30 days, CloudM may disable, or withhold, suspend or revoke its grant of a license of, or performance of service in relation to the CloudM Products for which payment is so overdue until all overdue amounts and interest have been paid.

6.8 If increases in the Consumer Prices Index exceed 5% over any consecutive twelve-month period, CloudM shall have the right to adjust the Charges to reflect that increase for any future invoicing periods. CloudM shall give the Partner no less than one month’s prior notice in writing of the proposed changes to the Charges. and it is the responsibility of the Partner to ensure it is able to pass such increase on to the End-User. CloudM shall give the Partner not less than one month’s prior notice in writing of the proposed changes. 

6.9 CloudM may in the future request payment by credit or debit card, on a recurring basis, for the Renewable Products. The Partner agrees to provide and maintain valid credit or debit card details upon request from CloudM and authorizes CloudM to automatically charge the card on a recurring basis within 5 days of receipt of the relevant invoice. In the event that CloudM has exercized its right to request card payments, the Partner may cancel the recurring card payments at any time by notifying CloudM in writing and the cancellation will take effect from the next payment due date.

7 Advertising and promotion

7.1 The Partner shall (i) be responsible for the advertising, promotion and reselling of the CloudM Products in accordance with good business practice, provided that the use by the Partner of any advertising materials and promotional literature containing the Trademarks or other references to the CloudM Products shall be subject to the prior written consent of CloudM (notwithstanding any consent of CloudM, the Partner shall remain responsible for compliance with all applicable Legislation related to its advertising and promotion and reselling of the CloudM Products); (ii) observe all directions and instructions given to it by CloudM, including complying with the CloudM Brand Guidelines, in relation to the promotion and advertisement of the CloudM Products to the extent that such promotions or advertisements refer to the CloudM Products or otherwise use the TradeMarks, and shall not make any written statement as to the quality or manufacture of the CloudM Products without the prior written approval of CloudM; (iii) have sufficient knowledge, of the industry and products competitive with each CloudM Product (including specifications, benefits and features) so as to explain them in detail to End Users; (iv) conduct its business in a manner that reflects favorably at all times on CloudM and the good name, good-will and reputation of CloudM and not enter into any contract or engage in any practice detrimental to the interests of CloudM in the CloudM Products; and (v) avoid deceptive, misleading or unethical practices that are, or might be, detrimental to CloudM, the CloudM Products or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to CloudM or the CloudM Products.

8 Compliance with laws and regulations

8.1 The CloudM Products may be subject to United States and foreign export controls. The Partner agrees that it shall comply with all applicable laws, regulations, codes and sanctions relating to import and export in connection with its performance under this Agreement. Without limiting the foregoing:

a. the Partner shall be responsible for obtaining any necessary import licenses or permits necessary for the entry of the CloudM Products in the Partner’s territory, or their delivery to the Partner, and the Partner shall be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the CloudM Products.

b. the Partner acknowledges and agrees that the CloudM Products shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (Embargoed Countries), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (Designated Nationals). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Partner represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.

8.2 The Partner warrants to CloudM that it has informed CloudM of all legislation affecting the sale of the CloudM Products which are in force in the territory in which the Partner operates or any part of it (Local Regulations) at the date of this Agreement.

8.3 The Partner shall give CloudM as much advance notice as reasonably possible of any prospective changes in the Local Regulations.

8.4 On receipt of notification from the Partner under clause 8.3, CloudM shall ensure that the CloudM Products comply with any change in the Local Regulations by the date of implementation of that change or as soon as is possible thereafter where reasonably practicable, or cease to provide the Partner with any CloudM Product which does not comply with the Local Regulations as amended.

9 Anti-bribery

9.1 The parties shall:

a. comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption or any similar laws, regulations, code and sanctions in any relevant jurisdiction, including but not limited to the U.S. Foreign Corrupt Practices Act (Relevant Requirements);

b. not engage in any activity, practice or conduct which would constitute an offense under the U.S. Foreign Corrupt Practices Act or under sections 1, 2 or 6 of the UK Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

c. have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including but not limited to adequate procedures to ensure compliance with the Relevant Requirements and clause 9.1(b) and will enforce them where appropriate;

d. promptly report to the other party any request or demand for any undue financial or other advantage of any kind received in connection with the performance of this Agreement; and

e. immediately notify the other party (in writing) if a foreign public official becomes an officer or employee of the relevant party (and the parties warrant that they have no foreign public officials as officers or employees or direct or indirect owners at the date of this Agreement).

9.2 Without prejudice to clause 9.1 the parties shall ensure that any person associated with it who is performing services in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the parties in this clause 9 (Relevant Terms). The parties shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to the other party for any breach by such persons of any of the Relevant Terms howsoever arising.

9.3 For the purpose of this clause 9, (i) the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with any Relevant Requirements; and (ii) a person associated with a party includes any subcontractor of such party.

10 Intellectual Property Rights

10.1 Unless otherwise agreed between the parties, all Intellectual Property Rights in and to the CloudM Products belong, and shall belong, to CloudM and/or its licensors.

10.2 The Partner shall, at the expense of CloudM, take all such steps as CloudM may reasonably require assisting CloudM in maintaining the validity and enforceability of the Intellectual Property Rights of CloudM during the term of this Agreement.

10.3 Without prejudice to the right of the Partner or any third party to challenge the validity of any Intellectual Property Rights of CloudM, the Partner shall not do or authorize any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of CloudM and shall not omit or authorize any third party to omit to do any act which, by its omission, would have that effect or character.

10.4 CloudM makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the CloudM Products and the Trademarks.

10.5 CloudM grants to the Partner a non-exclusive, revocable, personal license (subject to the terms and conditions of this Agreement and during its term and solely for the purpose of performing the Partner’s obligations under this Agreement) to (i) use such reasonable copies of the Modules and Documentation as may reasonably be required for the purposes of demonstrating, marketing and selling the CloudM Products to prospective End Users; (ii) use and copy the documentation supplied by CloudM in connection with the CloudM Products (whether in electronic, hard copy or otherwise) for the purposes of complying with its obligations under this Agreement; and (iii) use the Trademarks for the purpose of the promotion, advertisement and sale of the CloudM Products.

10.6 The Partner shall not:

1. copy the Modules or any part of any of them except to the extent and for the purposes expressly permitted by this Agreement;
2. modify, adapt, develop, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in the Modules except and only to the extent that it is expressly permitted by applicable law. The Partner is granted no rights under this Agreement except as expressly stated and CloudM expressly reserves all Intellectual Property Rights and its other rights in and to the Modules.

10.7 The Partner shall ensure that each reference to, and use of, any of the Trademarks by the Partner is in a manner from time to time approved by CloudM and accompanied by an acknowledgement in a form approved by CloudM that the same is a trademark (or registered trademark) of CloudM.

10.8 The Partner shall not:

1. use any of the Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of CloudM therein;
2. use in relation to the CloudM Products any trademarks other than the Trademarks without obtaining the prior written consent of CloudM; or
3. use any trademarks or trade names so resembling any trademark or trade names of CloudM as to be likely to cause confusion or deception.

10.9 Other than the license expressly granted under this Agreement, neither party grants any license of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this Agreement, the Partner shall have no rights in respect of any trade names or trademarks used by CloudM in relation to the CloudM Products or their associated goodwill, and the Partner hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, CloudM.

10.10 At the request of CloudM, the Partner shall do or procure to be done (at CloudM’s reasonable cost) all such further acts and things (including the execution of documents) as CloudM shall reasonably require to give CloudM the full benefit of this Agreement.

10.11 The Partner shall promptly give notice in writing to CloudM in the event that it becomes aware of:

1. any infringement or suspected infringement of the Trademarks or any other Intellectual Property Rights in or relating to the CloudM Products; and
2. any claim that any CloudM Product or the manufacture, use, sale or other disposal of any CloudM Product, whether or not under the Trademarks, infringes the rights of any third party.

10.12 In the case of any matter falling within clause 10.11(a):

1. CloudM shall determine what action, if any, shall be taken in respect of the matter; and
2. CloudM shall have sole control over and shall conduct any consequent action as it shall deem necessary; and
3. the costs of any such action shall be borne, and all damages and other sums which may be paid or awarded as a result of any such action shall be shared, by the parties equally.

10.13 In the case of any matter falling within clause 10.11(b):

1. CloudM and the Partner shall consult to decide what steps shall be taken to prevent or terminate the infringement and the proportions in which they shall share the cost of those steps and any damages and other sums which may be awarded in their favour or against them; and
2. failing agreement between the parties, either party shall be entitled to take all action as it shall consider to be necessary or appropriate at its own expense to defend such a claim and shall be entitled and subject to all damages and other sums which may be recovered or awarded against it as a result of any such action.

10.14 The foregoing states the Partner’s sole and exclusive rights and remedies, and CloudM’s entire obligations and liability, in the case of any matter falling under clause 10.12(b)

10.15 Each party shall, at the request and expense of the other, provide all reasonable assistance to the other (including but not limited to the use of its name in or being joined as a party to proceedings) in connection with any action to be taken by the other party, provided that that party is given such indemnity as it may reasonably require against any damage to its name.

11 Confidentiality

11.1 Each party may have access to Confidential Information of the other party under this Agreement. A party’s Confidential Information shall not include information that (i) is or becomes publicly known through no act or omission of the receiving party; (ii) was in the other party’s lawful possession prior to the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party, which independent development can be shown by written evidence.

11.2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

11.3 Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. 

11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

11.5 This clause 11 shall survive termination of this Agreement, however arising.

12 Protection and processing of personal data

12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

12.2 The parties acknowledge that the Partner (or its sub-contractors, as applicable) is the controller of personal data relating to its employees, workers or agents that is shared with CloudM as part of the fulfilment of its obligations under this Agreement.

12.3 The parties also acknowledge that (i) either the Partner will be the processor of the End User’s personal data and CloudM will be the sub-processor; or (ii) no personal data will be shared between the Partner and CloudM, such details to be confirmed between the parties before any data is transferred.

12.4 Without prejudice to the generality of clause 12.1, the Partner will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to CloudM for the duration and purposes of this Agreement.

12.5 Without prejudice to the generality of clause 12.1, in relation to any personal data processed in connection with the performance by CloudM of its obligations under this Agreement, the parties agree that, to the extent that the California Consumer Privacy Act (CCPA) applies to the parties’ processing of personal data, CloudM is a “service provider” as defined in the CCPA and shall process such personal data in accordance with the requirements of the CCPA for a “service provider”. CloudM shall process the personal data only as reasonably necessary and proportionate to achieve the Business Purpose for which the personal data is provided.  CloudM shall not Sell any personal data.  CloudM is also prohibited from: (a) from retaining, using, or disclosing personal data for any purpose other than for the specific purpose of performing the services specified in the Agreement; (b) further collecting, selling, or using personal data except as necessary to perform such services; and (c) from retaining, using or disclosing any personal data other than performing the services specified in the Agreement.  For purposes of this clause, the terms “Business Purpose,” “Consumer,” “Sell” (and its derivatives) “Process” and “Service Provider,” shall have the meanings ascribed to them in the CCPA. If CloudM, directly or indirectly, receives a request submitted by a Consumer to exercize a right it has under Applicable Data Protection Laws, it shall promptly provide a copy of the request to Partner who will handle the verification and response to such requests. Partner acknowledges that CloudM may receive and share personal data with its Affiliates or service providers in order to provide the services under this Agreement; and CloudM shall enter into written agreements with such entities that contain CCPA terms substantially equivalent to this clause 12.5.

12.6 The Partner consents to CloudM appointing the sub-processors of personal data listed at www.cloudm.io/legal/sub-processors. 

12.7 The parties acknowledge that applicable Data Protection Legislation are subject to change; and the parties shall reasonably cooperate with each other to amend the terms of this Agreement, including executing any applicable data processing addenda, to the extent necessary for compliance with amended and/or additional applicable Data Protection Legislation.

13 Limitation of liability

13.1 THE FOLLOWING PROVISIONS SET OUT THE ENTIRE FINANCIAL LIABILITY OF THE PARTIES (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS AND SUB-CONTRACTORS) TO THE Partner IN RESPECT OF (I) ANY BREACH OF THIS AGREEMENT HOWSOEVER ARISING; AND (II) ANY REPRESENTATION, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), STATEMENT, BREACH OF STATUTORY DUTY, OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.

13.2 THE LIMITATIONS OF LIABILITY OF THIS CLAUSE 13 SHALL NOT APPLY TO THE LIABILITY OR OBLIGATIONS OF EITHER PARTY:

a. FOR DEATH OR PERSONAL INJURY CAUSED NEGLIGENCE; 

b. FOR FRAUD OR FRAUDULENT MISREPRESENTATION; OR

c. UNDER THE INDEMNITY AT CLAUSE 4.5.

13.3 OTHER THAN IN RELATION TO ANY LIABILITY UNDER CLAUSE 13.2, NEITHER PARTY SHALL IN ANY CIRCUMSTANCES BE LIABLE, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY HOWSOEVER ARISING), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE FOR: 

a. LOSS OF PROFITS; OR

b. LOSS OF BUSINESS; OR

c. DEPLETION OF GOODWILL OR SIMILAR LOSSES; OR

d. LOSS OF ANTICIPATED SAVINGS; OR

e. LOSS OF GOODS; OR

f. LOSS OF USE; OR

g. LOSS OR CORRUPTION OF DATA OR INFORMATION; OR

h. ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES.

13.4 OTHER THAN IN RELATION TO ANY LIABILITY UNDER CLAUSES 13.2, 13.5 AND 13.6, THE PARTIES’ TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY HOWSOEVER ARISING), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL IN ALL CIRCUMSTANCES BE LIMITED TO 150% OF THE AMOUNT ACTUALLY PAID BY THE PARTNER TO CLOUDM UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE (OR IN THE EVENT OF LIABILITY RELATED TO NON-PAYMENT BY THE PARTNER, 150% OF THE AMOUNT PAYABLE BY PARTNER TO CLOUDM, IF HIGHER). 

13.5 EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR BREACH OF CLAUSES 11 (CONFIDENTIALITY) AND 12 (PROTECTION AND PROCESSING OF PERSONAL DATA) SHALL IN ALL CIRCUMSTANCES BE LIMITED TO $3,000,000. 

13.6 In the event of any breach of CloudM’s warranty in clause 5.3 (whether by reason of defective materials, production faults or otherwise) the Partner’s sole and exclusive remedy and CloudM’s only obligation and liability to the Partner shall be, at CloudM’s option, to provide either (i) a replacement of the relevant Module; or (ii) a refund of the Charges paid for the relevant CloudM Module.

14 Term and termination

14.1 The Agreement shall commence on the Effective Date and continue for as long as the relevant Order Form remains in force, unless terminated earlier in accordance with this clause 14.

14.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability in any circumstances to the other if (i) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (ii) the other party is subject to an Insolvency Event. 

14.3 Without prejudice to any other rights or remedies to which CloudM may be entitled, CloudM may terminate the Agreement without liability in any circumstances to the Partner if (i) there is a Change of Control of the Partner to which CloudM reasonably objects (for purposes of this clause, Change of Control means (i) an acquisition, reorganization, merger, or consolidation of Partner by or with a third party in which the holders of the voting securities of Partner outstanding immediately before such transaction cease to beneficially own at least fifty percent (50%) of the combined voting power of the surviving entity, directly or indirectly, immediately after such transaction; (ii) a transaction or series of related transactions in which a third party, together with its Affiliates (if applicable), becomes the beneficial owner of fifty percent (50%) or more of the combined voting power of the outstanding securities of Partner; or (c) the sale or other transfer to a third party of all or substantially all of Partner’s assets; and “beneficial owner” (together with the correlative terms “beneficially owned” and “beneficially own” shall meanings correlative to that of “beneficial owner”) shall be determined in accordance with Rule 13d-3 of the U.S. Securities Exchange Act of 1934); or (ii) the Partner purports to assign any of its rights or obligations under this Agreement.

15 Effects of termination

15.1 Upon termination or expiry of this Agreement however arising, the Partner shall (i) at its sole cost, return (or at CloudM’s option, destroy) all media on which the Modules are held and the Partner shall stop selling the Modules; (ii) promptly return to CloudM, or otherwise dispose of as CloudM may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the Partner and relating to CloudM’s business (other than correspondence which has passed between the parties) which the Partner may have in its possession or under its control; and (iii) immediately cease to represent itself as an authorized reseller of CloudM Products, and otherwise cease from all conduct or representations that might lead the public or trade to believe that Partner is authorized by CloudM to sell the CloudM Products. 

15.2 In addition to the provisions of clause 15.1, (i) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry shall not be affected or prejudiced; (ii) the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced; and (iii) all rights and licenses granted to the Partner under this Agreement shall terminate. 

15.3 The termination of this Agreement shall not of itself give rise to any liability on the part of CloudM to pay any compensation to the Partner for loss of profits or goodwill, to reimburse the Partner for any costs relating to or resulting from such termination, or for any other loss or damage howsoever arising.

16 Publicity

16.1 Each party grants the other a non-exclusive license to the other’s name and logo in sales and marketing material for the duration of this Agreement. 

16.2 In exercising its rights under clause 16.1, the Partner shall comply with the CloudM Brand Guidelines, and CloudM will comply with the brand guidelines provided by the Partner, if any.

17 General

17.1 Force majeure – Neither party shall be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this Agreement by giving 7 days’ written notice to the affected party.

17.2 Assignment and other dealings – CloudM may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement provided that CloudM will only assign, subcontract or novate this Agreement to a CloudM Affiliate. The Partner may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.

17.3 Entire agreement – This Agreement constitutes the entire agreement between CloudM and the Partner. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

17.4 Amendment– No amendment or modification of this Agreement shall be valid unless it is made in writing and signed by the parties (or their representatives), save that CloudM may amend the End User Terms, where applicable in accordance with their terms.

17.5 Waiver – A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

17.6 Severance – If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this clause 17.6, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.7 Notices

a. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be (i) delivered by hand or by pre-paid first-class mail (United States Postal Service certified mail, return receipt requested) or by nationally recognized courier service (next working day delivery) at its registered office (if a company) or its principal place of business (in any other case); or (ii) sent by email to the following addresses (or an address substituted in writing by the party to be served):

Partner: the address indicated in the Order Form.  

CloudM: legal@cloudm.io, with copy to the Partner’s account manager as indicated on the Partner Portal; or

(iii) in the case of notices given by CloudM, posted on the Partner Portal or CloudM’s website (accessible at www.cloudm.io). 

b. Any notice shall be deemed to have been received (i) if delivered by hand, at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class mail or nationally recognized courier service, at 9.00 am on the second Business Day after posting; or (iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume; or (iv) if posted on the Partner Portal or CloudM’s website, on the next Business Day following the day the notice was posted. 

c. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

17.8 No third party beneficiaries – Unless it expressly states otherwise, this Agreement is intended for the benefit of the parties hereto and their successors and permitted assigns and does not give rise to any rights or remedies, nor may any provision hereof be enforced by, any other person. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other entity.

17.9 Governing law – This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of the State of Delaware, without regard to conflict of law principles.

17.10 Jurisdiction – Each party irrevocably agrees that the state and federal courts of the State of Delaware shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.