Master Subscription Agreement
(Last Updated May 2016)
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S PURCHASE AND USE OF SERVICES FROM CLOUD CONVERSION, LLC (“Cloud Conversion”).
Access to the Salesforce.com system is governed by the Salesforce Customer Agreement:http://www2.sfdcstatic.com/assets/pdf/misc/salesforce_MSA.pdf
All Salesforce.com related agreements may be found here: http://www.salesforce.com/company/legal/agreements.jsp
This Agreement is effective as of the date Customer executes a Customer Services Agreement and may change from time to time. The most current version will be hosted at www.cloudconversion.com/msa
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Law” means all applicable statutes, laws, regulations, ordinances, executive orders, rules, judgments, orders, decrees, directives, guidelines (to the extent mandatory), policies (to the extent mandatory) and other similar directives, whether now or hereafter in effect, of any federal, state, or local government, any political subdivision, and any governmental, quasi-governmental, judicial, public, or statutory instrumentality, administrative agency, authority, body, or other entity having jurisdiction over Cloud Conversion, Customer or the Purchased Services, including without limitation, any laws and regulations relating to access, use, disclosure, storage or transmission of any personal information in connection with the Services.
“Cloud Conversion” means Cloud Conversion, LLC a Utah limited liability company.
“Customer” means the individual or entity defined as a “Customer” under an applicable Customer Services Agreement.
“Customer Data” means any information that Cloud Conversion or its agents may have access to, receive, create, transmit, store or maintain on behalf of Customer under this Agreement, including without limitation any information relating to an identified individual (or an individual whose identity could be discovered based on such information).
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, programs, including, without limitation, any code that is intended to cause undesired effects, security breaches or damage to a system.
“Customer Services Agreement” means the supplemental contract for purchases hereunder, including addenda thereto, that are entered into between Customer and Cloud Conversion from time to time. Customer Services Agreements shall be deemed incorporated herein by reference. Unless otherwise specified, the Customer Services Agreement is included on the order form and is approved electronically by the customer..
“Purchased Services” means Services that Customer purchases under a Customer Services Agreement.
“Services” means the online, Web-based applications and platform provided by Cloud Conversion pursuant to this Agreement and any applicable Customer Services Agreements executed by Customer and Cloud Conversion.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Cloud Conversion at Customer’s request). Users may include but are not limited to Customer’s employees, consultants, contractors and agents; or third parties with which Customer transacts business.
“User Subscriptions” shall have the same meaning as “Licenses” under the Customer Services Agreement.
“We,” “Us” or “Our” if used herein, means Cloud Conversion, LLC.
“You” or “Your” if used herein, means the Customer as defined in a duly executed Customer Services Agreement.
2. PURCHASED SERVICES
2.1. Provision of Purchased Services. Cloud Conversion shall make the Purchased Services available to Customer pursuant to this Agreement and the relevant Customer Services Agreement during the term provided for in a duly executed Customer Services Agreement.
2.2. User Subscriptions. Unless otherwise specified in the applicable Customer Services Agreement, (i) Services are purchased as User Subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User Subscriptions may be added during the Term at the same pricing as that for the original User Subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User Subscriptions are added, and (iii) the added User Subscriptions shall terminate on the same date as the pre-existing subscriptions. User Subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
3. USE OF THE SERVICES
3.1 Cloud Conversion’s Responsibilities. Cloud Conversion shall provide the Purchased Services described herein, and in the Order Form and Customer Services Agreement executed by the Parties.
3.2. Customer’s Responsibilities. Customer shall (i) be responsible for compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of the Customer’s Data and of the means by which Customer acquired the Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Purchased Services, and notify Cloud Conversion promptly of any such unauthorized access or use, and (iv) use the Purchased Services only in accordance with applicable laws and government regulations. You shall not (a) sell, resell, rent, lease or loan the Purchased Services, (b) use the Purchased Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Purchased Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Purchased Services or third-party data contained therein, or (e) attempt to gain unauthorized access to the Purchased Services or their related systems or networks.
3.3. Usage Limitations. Purchased Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls Customer is permitted to make against Cloud Conversion’s application programming interface (“API”), and, for Services that enable Customer to provide public websites, on the number of page views by visitors to those websites.
3.4. Data Storage Limits. Each Salesforce.com account provisioned by Cloud Conversion includes 1GB of data storage. This storage limit applies to all data records stored inside the company’s Salesforce org. Any overages of this data storage may require the Customer to purchase additional data space from Cloud Conversion or archive older data. If a Salesforce account executive contacts you about data storage, please contact Cloud Conversion support.
4. FEES AND PAYMENT FOR PURCHASED SERVICES
4.1. User Fees. Customer shall pay the fees specified in all Customer Services Agreement(s) hereunder. Except as otherwise specified herein or in a Customer Services Agreement, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Fees are based on monthly periods that begin on the subscription start date and each mensiversary thereof; therefore, fees for services added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Term.
4.2. Invoicing and Payment. Customer is responsible to provide Cloud Conversion with valid payment methods. If the Order Form specifies a credit card payment, customer will provide valid and updated credit card information. If Customer provides credit card information to Cloud Conversion, Customer authorizes Cloud Conversion to charge such credit for all Purchased Services listed in the Customer Services Agreement for the initial Term and any renewal subscription term(s) as set forth in Section 10.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Customer Services Agreement. If the Customer Services Agreement specifies that payment will be by a method other than a credit card, the Customer will provide Cloud Conversion with a valid purchase order or alternative document reasonably acceptable to Cloud Conversion. Cloud Conversion will invoice Customer in advance and otherwise in accordance with the terms relevant Customer Services Agreement. Unless otherwise stated in the Customer Services Agreement, invoiced charges are due Net 30 days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information.
4.3. Overdue Charges. If any charges are not received from Customer by the due date, then at Cloud Conversion’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Cloud Conversion may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Cloud Conversion’s services is 60 or more days overdue (or 30 or more days overdue in the case of amounts Customer has authorized Cloud Conversion to charge to Customer’s credit card are declined), Cloud Conversion may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend services to Customer until such amounts are paid in full.
4.5. Payment Disputes. Cloud Conversion shall not exercise its rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
4.6. Taxes. Unless otherwise stated, Cloud Conversion’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, ” Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Cloud Conversion has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Cloud Conversion with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Cloud Conversion reserves all rights, title and interest in and to the Purchased Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2. Restrictions. Customer shall not (i) permit any third party to access the Purchased Services except as permitted herein or in a Customer Services Agreement, (ii) create derivate works based on the Purchased Services, (iii) copy, frame or mirror any part or content of the Purchased Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer the Purchased Services, or (v) access the Purchased Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Purchased Services.
5.3. Ownership of Customer Data. Customer is the exclusive owner of all rights, title and interest in and to all Customer Data. Upon expiration or termination of this Agreement for any reason, or at any time upon request, Cloud Conversion shall deliver all Customer Data to Customer and destroy any and all copies of the same.
5.4. Suggestions. Cloud Conversion shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Purchased Services.
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (” Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer Data; Cloud Conversion’s Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Customer Service Agreements, as well as business and marketing plans and strategies, financial information and projections, technology and technical information, product plans and designs, prices or quotes for services, customer lists and customer information, and all business processes or other information to which a party has access as a result of this Agreement. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes known to the public without breach by the other party of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. It is specifically acknowledged and understood that Confidential Information may consist of (i) information transmitted in written, oral, digital, or any other medium, (ii) all copies and reproductions, in whole or in part, of such information and (iii) all summaries, analyses, compilations, studies, notes or other records which contain, reflect, or are generated from such information.
6.2. Protection of Confidential Information. Except as otherwise expressly permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care and consistent with industry practices and standards); (ii) the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3. Protection of Customer Data.
(a) In addition to and without limiting its obligations under Section 6.2 above, Cloud Conversion agrees as follows:
(i) Cloud Conversion shall comply with all applicable industry practices and standards (including without limitation the Payment Card Industry (“PCI”) security standards as set forth at www.pcisecuritystandards.org) and Applicable Law relating to the protection of Customer Data.
(ii) Except to the extent necessary to carry out Cloud Conversion’s express obligations under this Agreement, Cloud Conversion shall not use Customer Data for any purpose.
(iii) Except to the extent necessary to carry out Cloud Conversion’s express obligations under this Agreement, Cloud Conversion shall not disclose any Customer Data to any person or entity, including, but not limited to, any of Cloud Conversion’s employees, agents, or contractors.
(iv) If Cloud Conversion proposes to disclose Customer Data to any person or entity to assist Cloud Conversion to perform its duties under this Agreement, Cloud Conversion shall first notify Customer in writing of such disclosure and enter into a written confidentiality agreement containing the same confidentiality provisions as are set forth herein with such person or entity under which that person or entity would be restricted from disclosing, using or duplicating such Customer Data, except as contemplated under this Agreement. Notwithstanding any such confidentiality agreement, Cloud Conversion shall remain liable for any failure of such person or entity to comply with such confidentiality agreement.
(v) Cloud Conversion represents and warrants that it has established and shall maintain and comply with a written information security program that is consistent with industry standards and that includes reasonably appropriate administrative, technical and physical safeguards designed to meet the following objectives: (1) protect the security and confidentiality of Customer Data; (2) protect against any anticipated threats or hazards to the security or integrity of Customer Data; and (3) protect against unauthorized access to or use of Customer Data (collectively, such safeguards referred to as an “Information Security Program”). Cloud Conversion shall provide Customer with copies of its written policies and procedures relating to its Information Security Program upon request, and shall notify Customer of any material changes to its Information Security Program. As part of its Information Security Program, Cloud Conversion shall take appropriate measures not to retain Customer Data for longer than it needs such information to perform its obligations hereunder, and that it properly disposes of Customer Data, whether such information is in paper, electronic or other form.
(vi) Cloud Conversion shall not modify Customer Data.
(b) In the event Cloud Conversion knows or reasonably believes that there has been any unauthorized access, use or disclosure (or attempted unauthorized access, use or disclosure) to or of any Customer Data, (A) the occurrence of which arises out of any act or omission of Cloud Conversion, or (B) while such Customer Data is in the possession, custody or control of, Cloud Conversion or Cloud Conversion’s employees or agents (collectively, a “Data Security Breach”), Cloud Conversion shall, at its sole cost and expense and without limiting Customer’s rights and remedies in law or at equity, take the following actions:
(i) immediately notify Customer of such Data Security Breach;
(ii) promptly report to Customer, to the extent possible the following information: (1) a description of the affected Customer Data; (2) a description of the facts pertaining to the Data Security Breach, including without limitation, the date of the breach and the date of discovery of the breach, (3) the names of the individuals who committed or were involved in the Data Security Breach, (4) the names of the unauthorized individuals or entities to whom Customer Data has been disclosed, and (5) such other information as Customer may reasonably request including, without limitation, the information, data and documentation required by Customer to timely comply with Applicable Law;
(iii) take reasonable steps to remedy the circumstances that permitted any the Data Security Breach to occur and to prohibit further Data Security Breaches of Customer Data and provide Customer with notice thereof;
(iv) share with Customer the results of any computer forensics analysis of any Data Security Breach conducted by Cloud Conversion or any expert retained by Cloud Conversion;
(v) permit Customer (at its expense) to conduct an investigation, during normal business hours upon prior written notice, and in a manner that does not unduly interfere with Cloud Conversion’s operations, of the scope and content of any unauthorized access;
(vi) cooperate with Customer as reasonably necessary to facilitate compliance with any Applicable Law regarding unauthorized access, use or disclosure of Customer Data; and,
(vii) pay reasonable costs and expenses incurred by Customer in responding to the Data Security Breach, including, without limitation. Any notice sent concerning a Data Security Breach shall be mutually agreed upon by the parties, such agreement not to be unreasonably withheld, conditioned or delayed.
6.4. Compelled Disclosure. If the Receiving Party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation demand, or similar process) to disclose any of the Confidential Information, the Receiving Party shall immediately notify the Disclosing Party in writing of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions hereof. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.5. Remedies for Breach of Confidentiality/Customer Data Obligations. The parties agree that any breach or threatened breach of this Section 6 of this Agreement by a party could cause not only financial harm, but also irreparable harm to the other party; and that money damages may not provide an adequate remedy for such harm. In the event of a breach or threatened breach of this Section 6 of this Agreement by a party, the other party shall, in addition to any other rights and remedies it may have at law or in equity, be entitled to seek equitable relief, including, without limitation, an injunction (without the necessity of posting any bond or surety) to restrain such breach.
7. WARRANTIES AND DISCLAIMERS
7.1. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
7.2. Cloud Conversion is not Responsible for Outages Caused by Third Parties. Cloud Conversion is not responsible for downtimes or unplanned outages caused by Salesforce.com, eBay, Amazon.com, Google Apps, or any other third-party. Cloud Conversion shall use commercially reasonable efforts to work with such third parties to minimize any such downtimes or outages.
7.3. Cloud Conversion represents and warrants that: (i) it will perform the Services in a professional and worker-like manner; (ii) the Services will conform in all material respects to any published documentation relating to such Services and any functional/performance requirements or specifications agreed to by the parties in writing.
7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1. Indemnification. Customer shall defend Cloud Conversion against any claim made or brought against Cloud Conversion by a third party alleging that Cloud Conversion’s authorized use of any Customer Data hereunder infringes or misappropriates the intellectual property rights of a third party or violates Applicable Law, and shall indemnify Cloud Conversion for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Cloud Conversion in connection with any such Claim; provided, that Cloud Conversion (a) promptly give Customer written notice of the claim; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim unless the settlement unconditionally releases Cloud Conversion of all liability); and (c) provide to Customer all reasonable assistance. This provision shall survive the term of this Agreement.
8.2. Exclusive Remedy. This Section 8.1 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
9. LIMITATION OF LIABILITY
9.1. Exclusion of Consequential and Related Damages. WITHOUT LIMITING EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the date Customer executes an Order Form and/or a Customer Services Agreement wherein Customer agrees to all terms and conditions contained within this Agreement and continues throughout the term of Customer’s contractual relationship with Cloud Conversion unless stated otherwise within this Agreement.
10.2. Term of Purchased Services. Services purchased by Customer commence on the start date specified in the applicable Customer Services Agreement and continue for the subscription term specified therein. Except as otherwise specified in the applicable Customer Services Agreement, all services shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least forty-five (45) days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Cloud Conversion has given Customer written notice of a pricing increase at least 90 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Cloud Conversion may increase the per-unit pricing not more than once annually and such increases shall not exceed 5%.
10.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party for a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors which is not stated or dismissed within 30 days.
10.4. Surviving Provisions. Section 4 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 7 (Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (Notices, Governing Law and Jurisdiction) and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1. Notices. All notices, requests, demands and other communications required to or permitted to be given under this Agreement shall be in writing and shall be conclusively deemed to have been delivered when: (i) hand delivered to the other Party; or (ii) upon deposit in the U.S. Post Office to the other party; or (iii) electronic mail transmission as set forth below:
11.1.1 If to Cloud Conversion:
Cloud Conversion, LLC
2140 Webster Drive, Park City, Utah 84060.
11.1.2 If to Customer:
To the address provide by Customer in the Customer Services Agreement.
11.2. Agreement to Governing Law. Each party agrees to the application of Utah law.
11.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. GENERAL PROVISIONS
12.1. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.6. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Customer Services Agreements executed in accordance with this Agreement, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Customer Services Agreement, the terms of such exhibit, addendum or Customer Services Agreement shall prevail.
13. ADDITIONAL TERMS
13.1 General Audit. Cloud Conversion shall keep accurate books and records relating to financial, operational and security matters relating to the Services. Customer and its agents, at Customer’s own cost, are entitled to inspect and audit Cloud Conversion’s records, operations and facilities relating to the Services upon reasonable prior written notice during normal business hours (or such other time as may be required under the circumstances) to ensure Cloud Conversion’s compliance with this Agreement, compliance with its Information Security Program (defined above) or any other security controls, policies and procedures required hereunder and in connection with any regulatory requirements of Customer relating to the Services.
13.2 Force Majeure. Neither Cloud Conversion nor Customer shall be held liable for failure of or delay in performing its obligations under this Agreement if such failure or delay is the result of an act of God, such as earthquake, hurricane, tornado, flooding, or other natural disaster, or in the case of war, action of foreign enemies, terrorist activities, labor dispute or strike, government sanction, blockage, embargo, or failure of electrical service. The non-performing party must make every reasonable attempt to minimize delay of performance. In the event force majeure continues longer than 120 days, either party may terminate the Agreement.
13.3 Insurance Coverage.
(a) During the term of the Agreement, and at its own cost, Cloud Conversion shall obtain and maintain the following insurance coverage. With respect to claims-made policies, coverage will be maintained for at least an additional 2 years after completion of all Purchased Services. The amounts as specified are minimums only. The actual amounts above the minimums shall be determined by Cloud Conversion. In addition, for any Services that are authorized to be subcontracted, Cloud Conversion shall require each subcontractor to procure and maintain all insurance as outlined herein.
(i) Professional Errors & Omissions insurance covering financial losses suffered by Customer due to error, omission or negligence of Cloud Conversion including its employees and agents in the performance of the Services with a minimum per claim limit of not less than one million dollars ($1,000,000) and five million dollars ($5,000,000) in the aggregate.
(ii) Technology errors and omissions insurance covering any failure of Cloud Conversion’s Deliverables or Services to perform as promised under the Agreement, including, without limitation, (1) replacement or restoration of electronic data, (2) intellectual property endorsement, and (3) cyber risk, privacy breach and/or network security damages and mitigation costs with limits of not less than $1,000,000 per claim and combined annual aggregate liability limit of not less than $1,000,000.
(iii) Commercial General Liability coverage including coverage for Premises/Operations, Contractual Liability, Products/Completed Operations, and Personal Injury and Advertising Injury, with limits of not less than $1,000,000 per claim and $1,000,000 per occurrence. Cloud Conversion shall maintain Products/Completed Operations coverage for a period of at least three (3) years after completion of all Services provided under this Agreement.
(iv) Umbrella or Excess Liability coverage with limits of not less than $1,000,000 per claim and limits of not less than $1,000,000 per occurrence.
(v) Workers’ Compensation Insurance for its employees in accordance with the statutory requirements of the state where the work is being performed.
(vi) Fidelity and computer crime insurance in an amount of not less than one million dollars ($1,000,000) per occurrence and in the aggregate, such insurance to extend to loss Cloud Conversion or Customer might suffer as a result of fraudulent or dishonest acts of Cloud Conversion’s employees, agents or subcontractors in performing any or all of the Services under this Agreement. Cloud Conversion will ensure that such insurance covers its subcontractors.
(vii) If Cloud Conversion will be using motor vehicles in the performance of Services, then Automobile Liability insuring any auto, including hired autos, and non-owned autos with limits of not less than $1,000,000 per claim and $1,000,000 per occurrence.
(b) Each insurance policy shall be placed with an insurance company that has an A.M. Best’s Rating of not less than “A” and a policyholder surplus of at least $100,000,000.
(c) Any Commercial General Liability policy and Umbrella or Excess Liability policy, shall be endorsed to add Customer as an additional insured and contain a standard separation of insured clause.
(d) Each policy shall be endorsed to provide that the insurer will give Customer a minimum of thirty (30) days prior written notice of cancellation and intent not to renew. If Cloud Conversion intends to make a material change in policies from that listed in this Exhibit, Cloud Conversion shall give Customer a minimum of thirty (30) days prior written notice of the change, including without limitation any material reduction in the policy limits of any policy or material reduction in the scope of coverage.
(e) With respect to policies written on a “claims-made” basis, such insurance shall provide for a retroactive date not later than the commencement of Services under this Agreement. Cloud Conversion and/or subcontractors shall provide evidence of renewals of any claims made policies each year, including for two (2) years after the completion of services. If an event occurs, arising from the performance of this Agreement, which is covered under the claims made policy, Cloud Conversion and/or subcontractor shall promptly notice the carrier and provide a copy of the notice of claim to Customer. Customer may, with notice to Cloud Conversion and/or subcontractor, provide notice of claim under any claims made policy if Cloud Conversion and/or subcontractor fail to do so within a reasonable time. All of the insurance required hereunder will be primary to any or all other insurance coverage in effect for Customer.
(f) In addition to, but not in place of, the indemnification obligations outlined in this Agreement, it is the intent of the parties that any claims against Customer arising out of the Agreement will be paid, up to the limits of liability, by the insurance policies listed in this Exhibit.
13. 4 Publicity: Cloud Conversion will not, without Customer’s prior written approval, cause or permit to be released any publicity, including press releases, advertisements, news/web releases, announcements, customer lists that include any name or trademark of Customer, or any other form of public communication that relate to the Services hereunder (including any use of third party platforms), Cloud Conversion’s relationship with Customer or this Agreement, or denial or confirmation of same.