CloudM Inc. Standard Terms and Conditions for Direct Customers
|v1||2 May 2023|
|v2||27 October 2023|
These terms and conditions only apply to direct customers of CloudM Inc. – if you have purchased CloudM Products from an authorized CloudM Inc. reseller, please refer to the terms of your agreement with your reseller.
If you are a CloudM Inc. reseller, please refer to the CloudM Inc. Standard Reseller Terms.
These standard terms and conditions (STCs) together with your Order Form and any other terms referred to in these terms and conditions constitute your agreement with CloudM for the provision of Software and/or Services (as defined below) (“Agreement”).
This Agreement is made between the legal entity named in the Order Form (Customer or you) and CloudM, Inc., a Delaware corporation, whose registered office is at 251 Little Falls Drive, Wilmington 19808, Delaware 19808 (CloudM, we or us).
1. Definitions and interpretation
The following definitions and rules of interpretation in this clause apply in this Agreement.
Actual Usage: the combined Onboarding Count, Offboarding Count, Migrate Count, Signature Count, Backup Count and Archive Count for the relevant Billing Period;
Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party (For purposes of this definition, the term control, 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);
Archive Count: the number of users whose data has been archived using CloudM Archive, calculated on the basis of the highest number of such users during the relevant Billing Period;
Backup Count: the number of users whose data is being backed up using CloudM Backup, calculated on the basis of the highest number of such users during the relevant Billing Period;
Billing Period: a calendar month, the first such period to be the calendar month in which the relevant Order Form has been executed by the parties (First Billing Period) (for PAYG Modules only);
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 Customer to CloudM for the CloudM Products as indicated in the relevant Order Form;
CloudM Archive: CloudM’s software-as-a-service module allowing Google Workspace and Microsoft Office 365 to archive leavers’ data to customer owned cloud storage environment;
CloudM Automate: CloudM’s software-as-a-service module assisting customers with their personnel on-boarding and off-boarding management;
CloudM Backup: CloudM’s software-as-a-service module assisting Customers with their workplace productivity data backup and recovery requirements;
CloudM Email Signature: CloudM’s software-as-a-service module assisting customers with their email signature management;
CloudM Migrate (Hosted): CloudM’s proprietary hosted software-as-a-service module for data and user migration;
CloudM Migrate (Self-Hosted): CloudM’s proprietary self-hosted software for data and user migration;
CloudM Migrate EULA: the end user license agreement for CloudM Migrate (Self-Hosted) as set out at https://www.cloudm.io/legal/cloudm-migrate-self-hosted-eula or such other URL as indicated by CloudM to the Reseller from time to time; ;
CloudM Modules: CloudM’s proprietary modules including CloudM Migrate (Hosted), CloudM Migrate (Self-Hosted), CloudM Automate, CloudM Archive and CloudM Email Signature, together with any other modules developed by CloudM from time to time;
CloudM Products: the CloudM Modules, Serviced Migrations, Smart Starts and any other product or service developed by CloudM from time to time;
CloudM Subscription Agreement: the software-as-a-service subscription agreement setting out the end user terms for CloudM Migrate (hosted), CloudM Automate, CloudM Archive, CloudM Backup and CloudM Email Signature as set out at https://www.cloudm.io/legal/cloudm-saas-subscription-agreement or such other URL as indicated by CloudM to the Customer from time to time;
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, including the Charges and any bespoke terms agreed between CloudM and the Customer;
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;
Data Processing Agreement (DPA): the data processing agreement set out at https://www.cloudm.io/legal/data-processing-agreement, or such other data processing agreement as agreed between the parties, which forms part of this Agreement;
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 Customer;
Enterprise Starter Edition: a promotional subscription to CloudM Automate including the following:
(a) free subscription to CloudM Automate for an unlimited number of users;
(b) access to CloudM Support by email only (no telephone calls); and
(c) 3 months of support from a dedicated CloudM Success Manager.
Insolvency Event: an insolvency event arises when:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) 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 (a) to (g) (inclusive);
(i) 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 CloudM Modules, which can be activated by the Customer at any time during the 12 months following execution of the Order Form;
Migrate Count: the number of CloudM Migrate (Hosted) licences requested by the Customer;
Offboarding Count: the number of users that have been successfully offboarded using CloudM Automate;
Onboarding Count: the number of users that have been successfully provisioned into the domain using CloudM Automate;
Order Form: the order form agreed by CloudM and the Customer which sets out the CloudM Products purchased by the Customer;
PAYG Modules: CloudM Migrate (Hosted), CloudM Automate, CloudM Email Signature, CloudM Backup and CloudM Archive, together with any other modules developed by CloudM, when supplied on a “pay-as-you-go” (PAYG) basis as indicated in the Order Form;
Serviced Migrations: the migration of Customer data from one data system to another data system managed and performed by CloudM, its agents or contractors using CloudM Migrate (Self-Hosted) in accordance with the Statement of Work agreed with the Customer;
Signature Count: the number of users that have an email signature applied via CloudM Email Signature calculated on the basis of the highest number of such users during the relevant Billing Period;
Smart Starts: advice and support from CloudM to the Customer in connection with the implementation of the CloudM Modules, as more specifically described at https://www.cloudm.io/resources/support/smart-starts;
Smart Start Terms: the terms and conditions for Smart Starts set out at https://www.cloudm.io/legal/smart-starts-terms or such other terms as may be indicated by CloudM from time to time;
Statement of Work (SoW): means the statement of work for Serviced Migrations and other ancillary services or products agreed between CloudM and the Customer;
Trademarks: the registered trademark and trademark applications and all unregistered trademarks and logos of CloudM or its Affiliates anywhere in the world, including CloudM, Cloud Technology Solutions and CTS together with any further trademarks which CloudM may permit or procure permission for the Customer by notice in writing to use in respect of the CloudM Products;
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.8 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.
1.9 A reference to writing or written includes e-mail, but not fax.
1.10 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.11 This Agreement is made up of the following and in the event of any conflict or inconsistency among the following documents, the order of precedence shall be as follows: (a) the Order Form; (b) the Statement of Work, if any; (b) these STCs; (c) the DPA; (d) the CloudM Migrate EULA and/or CloudM Subscription Agreement as applicable; (e) the Smart Start Terms, if applicable.
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 on the terms of these STCs.
2.2 The Customer 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.
2.3 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 Customer’s general terms and conditions contained in any purchase order or other document issued by the Customer unless otherwise agreed between the parties.
3. Customer’s undertakings
3.1 The Customer warrants and represents to CloudM that it will:
(a) where applicable install the CloudM Products solely in accordance with the instructions supplied by CloudM from time to time in writing;
(b) accept the CloudM Migrate EULA and/or CloudM Subscription Agreement (without amendments) prior to accessing the relevant CloudM Modules;
(c) accept the DPA prior to accessing the relevant CloudM Products;
(d) within 14 days of a written request from CloudM, provide such information as is reasonably requested by CloudM about the Customer’s use of the CloudM Products to confirm compliance with this Agreement;
(e) keep all copies of the CloudM Modules (on whatever media) in conditions appropriate for their storage and provide appropriate security for the CloudM Modules all at its own cost;
(f) comply with all applicable Legislation.
4. Ordering CloudM Products
4.1 The CloudM Products to be supplied to the Customer by CloudM shall be indicated in the Order Form.
4.2 Where the CloudM Products listed on the Order Form include a Serviced Migration:
(a) The Customer shall provide CloudM with as much information as CloudM reasonably requests to prepare a draft Statement of Work;
(b) Following receipt of the information requested from the Customer, CloudM and the Customer shall work together to prepare and execute a Statement of Work detailing the scope of the Serviced Migration, a risk/assumptions/issues/dependencies (“RAID”) analysis, the approach to project delivery and management and any further commercial or legal terms that may apply to the Serviced Migration.
4.3 Each Statement of Work shall be incorporated in the Order Form and this Agreement and will not form a separate agreement.
4.4 Once accepted by CloudM, orders for CloudM Products are final and may not be cancelled by the Customer, and no refund shall be due in the event of early termination, except for Serviced Migrations which may be cancelled in accordance with the provisions of clause 7.7.
4.5 Order Forms for CloudM Products shall continue in full force and effect until:
(a) in respect of Serviced Migration, completion of the project in accordance with the Statement of Work;
(b) in respect of Smart Starts, the earliest of (i) completion of the delivery of the Smart Start package selected in the Order Form, or (ii) 6 months from the date of the first scheduled Smart Start meeting;
(c) in respect of CloudM Migrate (Self-Hosted) and CloudM Migrate (Hosted), the earliest of (i) completion of a one-off migration per licence, or (ii) 12 months from the date of issue of the relevant licence key(s);
(d) in respect of CloudM Automate, CloudM Email Signature, CloudM Backup and CloudM Archive, the duration of the term indicated in the Order Form (Initial Term), thereafter renewing automatically for consecutive periods 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;
(e) in respect of Licence Pools, the date falling 12 months after the date of the Order Form (Licence Pool Term), save that all licence keys which have been validly allocated during the Licence Pool Term will remain valid until:
(i) in the case of CloudM Migrate, the earliest of (i) completion of a one-off migration per licence, or (ii) 12 months from the date of issue of the relevant licence key(s);.
(ii) in respect of CloudM Automate, CloudM Email Signature, CloudM Archive and CloudM Backup, 12 months from the date of issue of the relevant licence key.
4.6 CloudM shall be entitled to amend the Charges for CloudM Automate, CloudM Email Signature, CloudM Backup and/or CloudM Archive (as the case may be) upon 60 days’ notice to the Customer, such notice to expire at the end of the Initial Term or then current Renewal Term.
5. Adding additional licences or modules to an existing order
5.1 CloudM reserves the right to monitor the Customer’s usage of the CloudM Modules, and in the event that the Customer’’s usage exceeds the number of licences or subscriptions to CloudM Modules set out in the relevant Order Form, or accesses additional CloudM Modules not covered in the Order Form (Additional Licences), the Additional Licences shall be charged to the Customer on a PAYG-basis in accordance with clause 9.2, based on CloudM’s then-current PAYG pricing, which is available upon request.
6. Supply of CloudM Modules
6.1 Where the Customer purchases CloudM Modules, CloudM shall supply on the agreed form of media:
(a) within a reasonable period following the Effective Date, the latest version of the CloudM Modules; and
(b) during the term of this Agreement, such updates or new releases to the CloudM Modules as indicated in the Order Form as such updates or new releases become generally available.
6.2 The terms of the CloudM Migrate EULA and/or CloudM Subscription Agreement shall apply to the provision of the CloudM Modules by CloudM to the Customer.
7. Serviced Migrations
7.1 Where the Customer purchases Serviced Migrations, CloudM shall:
(a) perform the Serviced Migration with all reasonable care and skill and in accordance with applicable industry standards and substantially in accordance with the Statement of Work;
(b) use reasonable efforts to meet any performance dates specified in the Statement of Work, but any such dates shall be estimated only and time shall not be of the essence for performance of the Agreement;
(c) appoint a CloudM representative in respect of the Serviced Migration to be performed, as identified in the Order Form or Statement of Work. That person shall have authority to contractually bind CloudM on all matters relating to the relevant Statement of Work;
(d) deliver the Serviced Migration remotely from CloudM offices unless otherwise set out in the Statement of Work in which case CloudM shall use reasonable efforts to observe all health and safety and security requirements that apply at the Customer’s premises and that have been communicated in writing to CloudM within a reasonable period of time prior to any commencement of the Serviced Migration provided that CloudM shall not be liable under this Agreement if, as a result of such observation, CloudM is in breach of any of its obligations under this Agreement; and
(e) ensure that personnel and subcontractors (if any) used by CloudM in the performance of the Serviced Migration are adequately skilled or experienced for the activities they are required to perform.
7.2 In the event that the Serviced Migration does not conform to the SoW as agreed between CloudM and the Customer, CloudM will use commercially reasonable efforts to correct the non-conforming results (Fault) at no additional charge to the Customer and in the event CloudM fails to successfully correct the Fault within a reasonable time of receipt of a written notice from the Customer detailing the Fault, then the Customer shall be entitled to terminate the applicable Serviced Migration set out in the relevant Order Form and receive a prompt refund of any prepaid, unused Charges for the non-conforming resultsServiced Migration. This clause 7.2 sets out the Customer’s sole and exclusive remedy and CloudM’s entire liability in the event of a Fault and/or breach of that CloudM breaches the provisions of clause 7.1 above.
7.3 If CloudM’s performance of a Serviced Migration is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation (Customer Default), CloudM shall give the Customer written notice of such Customer Default (Default Notice).
7.4 If, 5 Business Days after receipt of a Default Notice (Remediation Period) the Customer has not remedied the Customer Default:
(a) CloudM (without limiting or affecting any other right or remedy available to it), shall be entitled tosuspend performance of the Serviced Migration until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve CloudM from the performance of any of its obligations, in each case to the extent the Customer Default prevents or delays CloudM’s performance of the Serviced Migration;
(b) CloudM shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer Default; and
(c) the Customer shall reimburse CloudM on written demand for any costs or losses sustained or incurred by CloudM arising directly or indirectly from the Customer Default.
7.5 If the Customer fails to remedy a Customer Default within 30 days of expiry of the Remediation Period, CloudM shall, in addition to any other remedies it may have under this Agreement, be entitled to terminate the relevant Order Form. In the event of such termination, the Customer shall not be entitled to any refund of the sums due under the relevant Order Form.
7.6 The Customer may request a change to the CloudM Migration Services via the change control procedure set out in the Statement of Work.
7.7 The Customer may cancel a Serviced Migration prior to the project start date set out in the SoW (Start Date) subject to the payment by the Customer of a cancellation charge equivalent to:
(a) if the cancellation takes effect more than 5 Business Days prior to the Start Date, a payment equal to twenty-five percent (25%) of the Charges relating to the Serviced Migration; or
(b) If the cancellation takes effect within 5 Business Days of the Start Date, a payment equal to forty percent (40%) of the Charges relating to the Serviced Migration.
8. Smart Starts
8.1 Where the Customer purchases Smart Starts, the Smart Start Terms shall be incorporated into this Agreement.
9. Charges and payment
9.1 Subject to the provisions of clause 4.6, the Charges shall be indicated in the Order Form.
9.2 For PAYG Modules, CloudM shall invoice the Customer monthly in arrears for the Charges calculated based on Actual Usage during the relevant Billing Period (and for the First Billing Period, the Charges shall be calculated pro-rata to the number of days in the First Billing Period, on the basis of a 30-days calendar month) as determined by CloudM, within 5 days of the end of the relevant Billing Period.
9.3 For all CloudM Products (except for PAYG Modules), CloudM shall invoice the Customer upon execution of the relevant Order Form.
9.4 The Customer shall pay the full amount invoiced to it by CloudM in the currency indicated in the Order Form within 30 days of the date of the invoice unless otherwise agreed in writing between CloudM and the Customer.
9.5 The Customer 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.
9.6 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT) or any equivalent taxes in the relevant jurisdiction, which the Customer may additionally be liable to pay to CloudM where applicable.
9.7 If the Customer fails to make any payment due to CloudM under this Agreement by the due date for payment, then, without limiting CloudM’s remedies under clause 17.2:
(a) the Customer 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 applicable 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 Customer shall pay the interest together with the overdue amount;
(b) CloudM may suspend the Customer’s access to the CloudM Products, including suspending the performance of a Serviced Migration where applicable, until payment has been made in full; and
(c) CloudM may recover its reasonable costs, expenses and charges (including legal costs and expenses) in collecting the late payment.
9.8 If payment remains overdue for 30 days, CloudM may terminate this Agreement. In the event of such termination, the Customer shall not be entitled to a refund of any amounts previously paid under this Agreement.
9.9 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 Customer not less than one month’s prior notice in writing of the proposed changes to the Charges.
9.10 CloudM may in the future request payment by credit or debit card, on a recurring basis, for the CloudM Modules. The Customer 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 invoice issued under clauses 9.2 or 9.3 above. In the event that CloudM has exercized its right to request card payments, the Customer 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.
10. Compliance with laws and regulations
10.1 The Customer shall be responsible for obtaining any necessary import licenses or permits necessary for the entry of the CloudM Modules in the Customer’s territory, or their delivery to the Customer, and the Customer 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 Modules.
10.2 The Customer acknowledges and agrees that the CloudM Products and services 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. Customer also 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.
11.1 The Customer 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 11.1(b) and will enforce them where appropriate;
(d) promptly report to CloudM any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this Agreement; and
(e) immediately notify CloudM (in writing) if a foreign public official becomes an officer or employee of the Customer (and the Customer warrants that it has no foreign public officials as officers or employees or direct or indirect owners at the date of this Agreement).
11.2 Without prejudice to clause 11.1 the Customer shall ensure that any person associated with the Customer 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 Customer in this clause 11 (Relevant Terms). The Customer 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 CloudM for any breach by such persons of any of the Relevant Terms howsoever arising.
11.3 Breach of this clause 11 shall be deemed a material breach, which is not capable of being remedied, under clause 17.2(a).
11.4 For the purpose of this clause 11, 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. For the purposes of this clause 11 a person associated with the Customer includes any subcontractor of the Customer.
12. Intellectual Property Right
12.1 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.
12.2 The Customer 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.
12.3 Without prejudice to the right of the Customer or any third party to challenge the validity of any Intellectual Property Rights of CloudM, the Customer 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.
12.4 CloudM makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the CloudM Products and the Trademarks.
12.5 The Customer shall not:
(a) use any of the Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of CloudM therein;
(b) use in relation to the CloudM Products any trademarks other than the Trademarks without obtaining the prior written consent of CloudM; or
(c) use any trademarks or trade names so resembling any trademark or trade names of CloudM as to be likely to cause confusion or deception.
12.6 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 Customer 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 Customer hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, CloudM.
12.7 At the request of CloudM, the Customer 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.
12.8 The Customer shall promptly give notice in writing to CloudM in the event that it becomes aware of:
(a) any infringement or suspected infringement of the Trademarks or any other Intellectual Property Rights in or relating to the CloudM Products; and
(b) 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.
12.9 In the case of any matter falling within clause 12.8(a):
(a) CloudM shall determine what action, if any, shall be taken in respect of the matter; and
(b) CloudM shall have sole control over and shall conduct any consequent action as it shall deem necessary; and
(c) 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.
12.10 In the case of any matter falling within clause 12.8(b):
(a) CloudM and the Customer 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 favor or against them; and
(b) 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.
12.11 The foregoing states the Customer’s sole and exclusive rights and remedies, and CloudM’s entire obligations and liability, in the case of any matter falling under clause 12.8(b).
12.12 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.
13.1 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:
(a) is or becomes publicly known through no act or omission of the receiving party; or
(b) was in the other party’s lawful possession prior to the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
13.2 Subject to clause 13.4, 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.
13.3 Subject to clause 13.4, 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.
13.4 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.
13.5 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 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.6 This clause 13 shall survive termination of this Agreement, however arising, indefinitely (or such other time period as permitted by applicable law).
14. Protection and processing of personal data
14.1 The terms of the DPA are incorporated into this Agreement by reference and shall apply to the processing of personal data under this Agreement.
15.1 Each party represents, warrants and undertakes that:
(a) 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 this Agreement is executed by its duly authorized representative and represents a binding commitment on it;
(b) 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
(c) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
15.2 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL CLOUDM PRODUCTS AND SERVICES 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 USE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CLOUDM MAKES NO WARRANTY OF ANY KIND THAT THE CLOUDM PRODUCTS OR SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. CLOUDM IS NOT RESPONSIBLE OR LIABLE FOR THE DELETION OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH THE USE OF THE CLOUDM PRODUCTS. THE CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATIONS, PROJECTS AND DATA.
16. LIMITATION OF LIABILITY
16.1 THE FOLLOWING PROVISIONS SET OUT THE ENTIRE FINANCIAL LIABILITY OF CLOUDM (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS AND SUB-CONTRACTORS) TO THE CUSTOMER IN RESPECT OF:
(a) ANY BREACH OF THIS AGREEMENT HOWSOEVER ARISING; AND
(b) 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.
16.2 THE LIMITATIONS OF LIABILITY OF THIS CLAUSE 16 SHALL NOT APPLY TO CLOUDM’S LIABILITY:
(a) FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; OR
(b) FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
16.3 OTHER THAN IN RELATION TO ANY LIABILITY UNDER CLAUSE 16.3, CLOUDM SHALL IN NO CIRCUMSTANCE 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.
16.4 OTHER THAN IN RELATION TO ANY LIABILITY UNDER CLAUSES 16.3 AND 16.6, CLOUDM’S 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 CUSTOMER TO CLOUDM UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
16.5 CLOUDM’S TOTAL AGGREGATE LIABILITY FOR BREACH OF CLAUSES 13 (CONFIDENTIALITY) AND 14 (PROTECTION AND PROCESSING OF PERSONAL DATA) SHALL IN ALL CIRCUMSTANCES BE LIMITED TO $3,000,000 IN AGGREGATE.
17. Term and termination
17.1 This Agreement shall commence on the Effective Date and continue for as long as the relevant Order Form remains in force in accordance with the provisions of clause 4.5, unless terminated earlier in accordance with this clause 17.
17.2 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:
(a) 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
(b) The other party is subject to an Insolvency Event.
17.3 Without prejudice to any other rights or remedies to which CloudM may be entitled, CloudM may terminate the Agreement immediately on notice, without liability in any circumstances to the Customer if:
(a) the Customer commits a breach of the CloudM Migrate EULA or the CloudM Subscription Agreement, where applicable;
(b) there is a Change of Control of the Customer to which CloudM reasonably objects (for purposes of this clause, Change of Control means (i) an acquisition, reorganization, merger, or consolidation of Reseller by or with a third party in which the holders of the voting securities of Reseller 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 Reseller; or (c) the sale or other transfer to a third party of all or substantially all of Reseller’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
(c) the Customer purports to assign any of its rights or obligations under this Agreement;
(d) The provisions of clause 9.7 apply.
18. Effects of termination
18.1 Upon termination or expiry of this Agreement however arising:
(a) the Customer shall (at its sole cost) return (or at CloudM’s option, destroy) all media on which the CloudM Modules are held and the Customer shall stop accessing the CloudM Modules;
(b) the Customer shall promptly return to CloudM, or otherwise dispose of as CloudM may instruct, all samples, technical pamphlets, catalogues, specifications and other materials, documents or papers whatsoever sent to the Customer and relating to the CloudM’s Products (other than correspondence which has passed between the parties) which the Customer may have in its possession or under its control;
(c) 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 this Agreement which existed at or before the date of termination or expiry shall not be affected or prejudiced;
(d) the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced; and
(e) subject to the provision of clauses 18.1(a) to (d), all rights and licenses of the Customer under this Agreement shall terminate.
18.2 The termination of this Agreement shall not in itself give rise to any liability on the part of CloudM to reimburse the Customer for any costs relating to or resulting from such termination, or for any other loss or damage howsoever arising..
19.1 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.
19.2 Assignment and other dealings – we 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 our rights and obligations under this Agreement save that we will only assign or novate this Agreement to one of our Affiliates, and we shall give you prior written notice of such dealings. You may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under this Agreement without our prior written consent.
19.3 Entire agreement – This Agreement constitutes the entire agreement between CloudM and you. 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.
19.4 Amendment – No amendment or modification of these STCs shall be valid unless agreed in writing (excluding email) and signed by the parties, save that CloudM may vary the Smart Start Terms, CloudM Migrate EULA and CloudM Subscription Agreement at any time on notice to the Customer in accordance with their respective terms. Any variation to the Order Form or Statement of Work shall only be valid if made in writing and signed by the parties (or their representatives).
19.5 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.
19.6 Severability – 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 19.6, 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.
(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):
CloudM: firstname.lastname@example.org, with copy to the Customer’s account manager as indicated in the Order Form;
Customer: the email address indicated in the Order Form.
(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 by 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.
(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.
19.8 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 person.
19.9 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.
19.10 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.