Cloud Generation Online Subscription Agreement

Cloud Generation Online Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (“Agreement”) is a legal agreement between CLOUD GENERATION, LLC, a Delaware limited liability company (“Cloud Generation”) and Customer, governing Customer’s access to and use of the Cloud Generation Services. If Customer is using the Cloud Generation Services or creating an account on behalf of an entity, then “Customer” includes Customer and that entity, and Customer represents and warrants that the individual accepting this Agreement is an authorized representative of the entity with the authority to bind the entity to this Agreement. By (1) checking the box indicating Customer’s acceptance of this Agreement or (2) by executing an Order Form, Customer accepts this Agreement and acknowledges that: (a) Customer has read and understood this Agreement; and (b) Customer is legally competent to enter into and agree to this Agreement. If Customer does not check the box indicating acceptance of the terms of this Agreement or execute an Order Form, Customer may not access or use the Cloud Generation Services. THIS AGREEMENT INCLUDES (1) AN ARBITRATION PROVISION, AND (2) AN AUTOMATIC RENEWAL PROVISION. BY ACCESSING OR USING ANY OF THE CLOUD GENERATION SERVICES, CUSTOMER AGREES TO THESE PROVISIONS. AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

Chapter 1 Definitions

1.1. Affiliate shall mean any entity, whether incorporated or not, which is controlled by, under common control with, or controls another entity, where “control” means the ability, whether directly or indirectly, to direct the affairs of another by means of ownership, contract, or otherwise.

1.2. Authorized User means an authorized Customer client and its individual representatives who access and/or use the Cloud Generation Services.

1.3. Cloud Generation Platform means Cloud Generation’s hosted application, applications, script, code, structural hierarchies, interfaces, networks, equipment, processes, HTML code, graphics, multimedia files or text contained therein, to include any associated databases, algorithms, external data, calculations and other processes, methods or tools, together with any fixes, updates, enhancements and upgrades thereto.

1.4. Cloud Generation Services means (a) the provision and operation of the Cloud Generation Platform, [(b) Cloud Generation API, (c) any other services provided by Cloud Generation and (d) any support and professional services to which Customer subscribes and any applicable usage limitations, in each case as set forth in the applicable Order Form.

1.5. Customer Data means electronic data and information submitted or made available to the Cloud Generation Services by or on behalf of Customer or any Authorized User.

1.6. Derivative Data means any information or data resulting from the manipulation or analysis of Customer Data by or pursuant to the operation of the Cloud Generation Services.

1.7. Effective Date means the date Customer accepts the terms of this Agreement by checking the box indicating acceptance of this Agreement or by executing an Order Form.

1.8. [“Free Trial Period ” means the period of time specified by Cloud Generation for a free trial of the Cloud Generation Platform commencing on the Effective Date.]

1.9. Order Form means any mutually agreed order form between Cloud Generation, on one hand, and Customer and its Affiliates, on the other hand or a written confirmation of purchase provided by email to the Customer with respect to the purchase of the Cloud Generation Services.

1.10. Third-Party Software means any part of the Cloud Generation Services not owned by or licensed to Cloud Generation, including open source software.

1.11. Usage Data shall mean any data or metadata generated or created through the operation of the Cloud Generation Services that can be used to track, measure or evaluate the operation, performance or usage of the Cloud Generation Services by Cloud Generation or an Authorized User.

1.12. Updates means bug or error fixes, patches, modifications, enhancements, updates, upgrades, corrections, replacement and successor products, new versions, new releases, and derivative works (collectively, “Updates”).

2.0 LICENSE

2.1. LICENSE GRANT; SCOPE

2.1.1. License. Subject to Customer’s compliance with the terms of this Agreement and the Order Form, including, without limitation, the timely payment of Fees as described in Section 6 (“Fees and Payment”), Cloud Generation hereby licenses to Customer a worldwide, non­exclusive, non-transferable, revocable right (without the right to grant sublicenses) to access and use (and to enable its Authorized Users to use), during the Term, the Cloud Generation Services for Customer’s internal business purposes only in accordance with the terms of this Agreement and the Order Form. The foregoing license right shall include any Updates made by Cloud Generation to the Cloud Generation Services during the Term.

2.1.2. License Restrictions. Customer shall not, and shall not directly or indirectly permit any third party to: (a) license, sublicense, sell, resell, transfer, lease, rent, assign, distribute or otherwise make available to any third party, other than its Authorized Users, the Cloud Generation Services; (b) copy, modify or make derivative works of the Cloud Generation Platform; (c) reverse engineer, disassemble or reverse compile the Cloud Generation Platform; or (d) access or use the Cloud Generation Services in order to: (x) design, develop, build, market or support a competitive product or service; (y) design, develop, build, market or support a product using similar ideas, features, functions or graphics of the Cloud Generation Platform or Cloud Generation Services; or (z) copy any ideas, features, functions or graphics of the Cloud Generation Platform or Cloud Generation Services.

2.1.3. Data Usage License. Customer hereby grants to Cloud Generation a non-exclusive, non-transferable license to store, process and use Customer Data and Derivative Data solely for the purposes of providing, operating and improving the Cloud Generation Services. Customer hereby grants to Cloud Generation a royalty-free, exclusive, irrevocable, non-transferable license to process and use Derivative Data and Usage Data for internal business purposes and for the provision of services to Cloud Generation’s customers.

2.1.4. Third-Party Software. Third-Party Software shall be deemed to be incorporated within the Cloud Generation Services for the purposes of this Agreement and shall be licensed to Customer for use under the same license terms as set forth in Section 2.1.1, except to the extent (i) expressly provided to the contrary in this Agreement or an Order Form, or a written notification by Cloud Generation to Customer, or (ii) Customer or an Authorized User is required to enter into separate terms and conditions relating to such Third-Party Software. Customer acknowledges and agrees that Cloud Generation is not responsible for Customer’s use of, nor for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of, any Third-Party Software that Customer has elected to integrate into the Cloud Generation Services and/or that is subject to separate terms and conditions. Cloud Generation does not provide any warranties whatsoever for such Third-Party Software, and is not responsible for providing technical support therefor..

2.1.5. Updates, Upgrades and New Versions. Cloud Generation shall, from time to time at Cloud Generation’s discretion and at no additional charge, make available to Customer any Updates to the Cloud Generation Services as it releases, issues or otherwise makes available to its other customers.

2.1.6. Product Changes. Customer acknowledges and agrees that Cloud Generation may, at any time and for any reason, modify, discontinue, delete or restrict any aspect or feature of the Cloud Generation Services without consent from, or notice to, Customer; provided that (x) such modifications shall not constitute a waiver of any applicable Service Level obligation (except to the extent of scheduled maintenance) and (y) in the event any such modification materially adversely impacts the functionality or performance of the Cloud General Services, Customer may provide not less than sixty (60) days’ written notice of termination and, in the event Cloud Generation has not mitigated or cured such impact, this Agreement shall terminate.

2.2. PROFESSIONAL SERVICES

Cloud Generation shall perform professional services relating to the Cloud Generation Services (the “Professional Services”) in the form, type and manner provided in an Order Form, to include, without limitation, data integration services.

2.3. ACCEPTABLE USE POLICIES

Customer and its Authorized Users shall not, directly or indirectly, and shall not permit any third party to: (i) access or use the Cloud Generation Services, in whole or in part, except as expressly provided in this Agreement or in an Order Form; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Cloud Generation Services to harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (iv) use automated scripts to collect information from or otherwise interact with the Cloud Generation Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates of third party privacy rights; (vi) use the Cloud Generation Services to send or store material containing viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the Cloud Generation Services or the data contained therein; (viii) attempt to gain unauthorized access to the Cloud Generation Services or its related systems or networks; or (ix) use the Cloud Generation Services in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Cloud Generation Services. Customer acknowledges that, in the event of a violation of the foregoing restrictions, Cloud Generation shall have the right to suspend, restrict or terminate any Authorized User account associated with the restricted activity, or this Agreement, as appropriate; provided that such right or any such suspension by Cloud Generation shall not constitute a waiver of Customer’s responsibility for such user’s conduct.

3.0 SERVICE ACCESS AND AVAILABILITY

3.1. Cloud Generation shall provide Customer an administrator password and login code, and Customer shall permit Authorized User access through a browser interface with a user ID and password. Customer may establish such user accounts (“User Accounts”) as Customer sees fit subject to the terms of this Agreement. Customer will require each Authorized User to keep passwords used to access the Cloud Generation Services confidential and not authorize any third party to access or use the Cloud Generation Services on their behalf. Customer may, at Customer’s sole discretion, elect to configure the Cloud Generation Services to provide Cloud Generation personnel access to Customer’s platform.

3.2. During the Term, Cloud Generation will use its commercially reasonable efforts to ensure that the Software is available 99.5% monthly to the Customer; except for scheduled downtime for maintenance; and downtime caused by circumstances beyond the reasonable control of Cloud Generation. The parties understand and agree that the foregoing states Cloud Generation’s sole liability to Customer with respect to the availability of the Software. Cloud Generation contracts with third party service providers to provide network and internet services that provide the backbone for the Cloud Generation Services provided by Cloud Generation (the “Network Providers”). All bandwidth and performance levels and downtime for Cloud Generation Services are subject to the terms of any applicable service level agreement between Cloud Generation and the Network Providers.

4.0 CUSTOMER RESPONSIBILITIES

4.1. Customer acknowledges that Authorized Users may be subject to the terms of applicable click-through and other user licenses, privacy terms, terms of use, acceptable use policies (including as referenced at Section 2.3) and other policies imposed by Cloud Generation on all users of the Cloud Generation Services, as the case may be. Customer acknowledges that Cloud Generation shall be entitled to update and modify the terms of its policies from time to time; provided that such policies, except to the extent required by law or applied to all Cloud Generation Customers, shall not adversely impact the rights of Customer. In the event that a policy update or modification materially adversely impacts Customer’s rights, Customer shall provide not less than thirty (30) days’ written notice thereof, and, upon expiration of such thirty day period, Cloud Generation may elect to amend or waive Customer’s compliance obligation, and, if no such amendment or waiver is made, Customer may elect to terminate the Order Form or this Agreement.

4.2. Customer shall be solely responsible for: (i) all activity occurring under each User Account, (ii) the security and confidentiality of each User Account ID, (iii) all costs, fees, liabilities or damages incurred through use of each User Account ID, and (iv) all hardware, software and other equipment necessary for each Authorized User to connect to, access and use the Cloud Generation Services.

4.3. Customer acknowledges that operation of the Cloud Generation Service may rely upon the integration and interface of the Cloud Generation Services with data sources and applications supplied and maintained by Customer. In the event of any change to such data sources, applications or interfaces that have been supplied or maintained by Customer, Customer shall provide not less than sixty (60) days’ advanced, written notice of such change to Cloud Generation. Cloud Generation covenants and agrees to undertake commercially reasonable efforts to update, modify and/or adapt the Cloud Generation Services on the basis of any such data integration; provided that Cloud Generation may reasonably require Customer to enter into a new Order Form or other agreement and to pay additional, mutually agreeable fees pertaining to such work.

5.0 DATA RIGHTS; OWNERSHIP

5.1. CUSTOMER DATA

As between Customer and Cloud Generation, all Customer Data is and shall be the exclusive property of Customer. Without Customer’s prior written approval, except as otherwise expressly set forth herein, Customer Data shall not be: (i) used by Cloud Generation other than for the uses permitted at Section 2.1.3; (ii) disclosed, sold, assigned, leased or otherwise provided to third parties by Cloud Generation or its agents or subcontractors except as necessary to provide the Cloud Generation Services to Customer; or (iii) commercially exploited by or on behalf of Cloud Generation or its agents or subcontractors. Additionally, the parties understand and agree that Cloud Generation shall have the right to access and use Customer Data for the limited purpose of managing Cloud Generation’s data network and in order to support and update the Cloud Generation Services. The foregoing rights shall not limit Cloud Generation’s right to access and use Customer Data, Derivative Data and Usage Data as set forth herein.

5.2. ADDITIONAL DATA RIGHTS

5.2.1. Cloud Generation may generate or develop Derivative Data and/or Usage Data based upon its operation and provision of the Cloud Generation Services. Derivative Data and Usage Data shall be deemed to include aggregated, de-identified and statistical information collected by Cloud Generation from the operation of the Cloud Generation Services and the processing, manipulation and analysis of Customer Data; provided that the source of such data cannot be identified. All Derivative Data and Usage Data (and, in relation to Customer for purposes of this Agreement, all external data) is, or shall be, and shall remain the property of Cloud Generation. Cloud Generation understands and acknowledges that Customer may use, manage, modify, summarize, maintain, create derivative works of, and update Derivative Data and Usage Data. Customer acknowledges agrees that during and after the Term of an Order Form: (i) Cloud Generation may retain and use Derivative Data and Usage Data for purposes of providing the Cloud Generation Services to Customer and to third-party customers, and for conducting research, development and product improvement efforts; (ii) Cloud Generation may share Derivative Data and Usage Data with any third-party service providers providing services to Cloud Generation or collaborating with Cloud Generation, subject to obligations of confidentiality; and (iii) Cloud Generation may disclose Derivative Data and Usage Data if required under applicable law, regulation or court order, consistent with the requirements of Section 7 (Confidential Information). Customer acknowledges that Derivative Data and Usage Data may be commercially exploited by or on behalf of Cloud Generation for commercial purposes, subject to the restrictions set forth above and in this Agreement.

5.2.2. The parties understand and agree that Customer shall have sole responsibility for: (a) the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Customer Data; (b) Customer’s and each Authorized User’s deletion of, destruction of or failure to store any Customer Data; (c) ensuring Authorized Users do not provide Customer Data that contains any Sensitive Data (as defined at Section 7.3.1); and (d) enforcing the terms and conditions that govern each Authorized User’s use of the Cloud Generation Services, as applicable. In addition, Customer hereby represents, warrants and covenants that all Customer Data was and will be created, collected, used, disclosed, maintained, stored and transmitted by Customer in compliance with all applicable laws. Customer shall not, and shall cause each Authorized User to not, provide export-controlled material, provide export-controlled services, or engage with prohibited third parties pursuant to this Agreement.

5.2.3. If requested by Customer during the Term of this Agreement and to the extent available, Cloud Generation will make available to Customer, within thirty (30) days from receipt of Customer’s request and subject to payment by Customer of a reasonable charge, a file of Customer Data in an industry-standard format. Following the termination or expiration of this Agreement or an Order Form, Cloud Generation will delete any Customer Data not later than thirty (30) days following such expiration or termination.

5.3. OWNERSHIP BY CLOUD GENERATION

Cloud Generation shall own all right, title, and interest in the Cloud Generation Services, and, as between Customer and Cloud Generation, all right, title and interest in and to Derivative Data and Usage Data, notwithstanding anything in this Agreement purportedly to the contrary. Except for the rights and licenses expressly granted in Section 2, Cloud Generation, on behalf of itself and its licensors, reserves all rights in the Cloud Generation Services and does not grant or give Customer any rights whatsoever. 

6.0 PAYMENTS; TAXES

6.1. INVOICING AND PAYMENTS

6.1.1. Unless otherwise provided in an applicable Order Form, Cloud Generation shall invoice Customer annually in advance for any recurring amounts due pursuant to an Order Form. Customer shall pay all amounts owed to Cloud Generation hereunder (collectively, “Fees”) within thirty (30) days of the invoice date without setoff, counterclaim or deduction, except for amounts disputed in good faith by Customer pursuant to Section 6.1.2 below. Orders for additional Cloud Generation Services licenses or Professional Services shall be subject to additional Fees and may be subject to additional terms.

6.1.2. Customer must notify Cloud Generation in writing of any dispute within thirty (30) days of Customer’s receipt of an invoice, setting forth in reasonable details grounds for disputing the invoice. Cloud Generation will investigate and resolve any dispute raised by Customer within sixty (60) days. If Cloud Generation reasonably determine that Customer owes any portion of the disputed amount, Customer shall have thirty (30) days from the date of the resolution of the dispute to pay such amount, which will not bear interest or late charges until the expiration of the thirty (30) day period.

6.1.3. Customer understands and agrees that its failure to pay undisputed Fees when due shall give Cloud Generation the right to suspend access to the Cloud Generation Services and may be treated as a material breach of this Agreement pursuant to the terms of Section 7 (“Term and Termination”).

6.1.4. The Fees shall remain as stated for the initial term of this Agreement as set forth on the Order Form and any addenda. Upon the expiration of the initial term, Cloud Generation may increase such Fees by up to five percent (5%) annually from the prior standard Fees, exclusive of promotional or other discounts. Fees are calculated by Cloud Generation based upon certain system resource usage assumptions (“Service Limits”) set forth in the Order Form. In the event Cloud Generation determines that Customer has exceeded applicable Service Limits, Cloud Generation shall notify Customer, and Cloud Generation shall have the right to impose additional commercially reasonable fees as set forth in the Order Form corresponding to such excess use.

6.2. TAXES

If Cloud Generation has the legal obligation to pay or collect taxes for which Customer is responsible, which includes but is not limited to, sales, use, transfer, value added, goods, privilege, excise, and other similar taxes and duties (“Taxes”) that are levied or imposed by the reason of Customer’s receipt or use of Cloud Generation Services, , such Taxes shall be invoiced to and paid by Customer unless Customer provides Cloud Generation with a valid tax exemption certificate authorized by the appropriate taxing authority and Customer agrees to pay, and to indemnify and hold Cloud Generation harmless from, any such Taxes, excluding taxes based on Cloud Generation’s net income, employees or property. Any applicable Tax shall appear as separate additional items on the invoice from Customer. Cloud Generation shall take all actions that Customer reasonably requests to enable Customer to obtain any input or other tax credit to which it is entitled.

7.0 CONFIDENTIALITY

7.1. AGREEMENT AS CONFIDENTIAL INFORMATION

The parties shall treat the terms and conditions and the existence of this Agreement as Confidential Information. Each party shall obtain the other’s written consent prior to any publication, presentation, public announcement or press release concerning the existence or terms and conditions of this Agreement.

7.2. CONFIDENTIAL INFORMATION

7.2.1. Duty of Care. Each Party (the “Receiving Party”) shall maintain in confidence all Confidential Information received from the other (the “Disclosing Party”) and shall not to disclose or otherwise make available such Confidential Information to any third Party without the prior written consent of the Disclosing Party; provided, however, that each Party may disclose the other Party’s Confidential Information to their officers, employees, contractors and advisors to the extent they need access to such Confidential Information and are themselves bound by ta duty of confidentiality.

7.2.2. Exclusions. Confidential Information shall exclude all information, which (i) is at the time of disclosure, or thereafter becomes, a part of the public domain through no act or omission of the Receiving Party, its employees or agents; (ii) was in the Receiving Party’s possession as shown by written records without any obligation of confidentiality prior to the disclosure by the Disclosing Party and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; or (iii) was independently developed by the Receiving Party without use of the Confidential Information, as evidenced by contemporaneous written records.

7.2.3. Compelled Disclosure. Notwithstanding anything contained in the Agreement to the contrary, the Receiving Party shall be permitted to disclose Confidential Information if, and to the extent, such disclosure is required to be made pursuant to governmental authority, law, regulations, rules or valid subpoena, other administrative or legal process or court order, in which event the Receiving Party shall, to the extent permissible, provide prior notice of such requirement, permit the Disclosing Party to contest such requirement, and cooperate with the Disclosing Party in limiting the scope of the proposed disclosure and obtaining further means for protecting the confidentiality of the Confidential Information.

7.2.4. Injunctive Relief. In the event of an actual or threatened breach of the above confidentiality provisions, the Parties agree that the non-breaching Party will have no adequate remedy at law and shall be entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.

7.2.5. Feedback. Customer may, but is not obliged to, use knowledge or information gained while using Cloud Generation Services to provide to Cloud Generation suggestions, information, feedback, data, answers, questions, comments, suggestions, improvements, observations, evaluation information plans, ideas, or the like relating to the Cloud Generation Services (collectively, “Feedback”), either orally or in writing. Other than Customer’s Confidential Information included in such Feedback, Cloud Generation shall possess the right to use such Feedback, including for Cloud Generation’s implementation of same, and all Intellectual Property Rights covering or derived therefrom.

7.3. SENSITIVE DATA

7.3.1. Customer agrees that Customer Data shall not contain social security numbers, financial account information, public health information, driver’s license numbers, birthdates, payment card data or similarly sensitive information (collectively, “Sensitive Data”), and that any controls or inputs required by Customer will not solicit Sensitive Data. Further, by using the Cloud Generation Services, Customer confirms that it will not input, and will not solicit Authorized Users to input, Sensitive Data or otherwise use the Cloud Generation Services in a manner that could give rise to obligations under the Health Insurance Portability Act of 1996, the Gramm-Leach-Bliley Act or other applicable laws relating to Sensitive Data or personal information. All Customer Data is, or shall be, and shall remain the property of Customer. .

7.3.2. Customer acknowledges and agrees that any proprietary information and know-how, techniques, algorithms, and processes provided by or contained in the Cloud Generation Services, Derivative Data and/or Usage Data, or any modification, component or extraction thereof, constitute trade secrets, Confidential Information and other intellectual property rights of Cloud Generation or its suppliers and shall only be used by Customer in accordance with the terms and conditions of this Agreement. Therefore, Customer shall protect such trade secrets and confidential information in accordance with the requirements of this Agreement.

7.4. DATA SECURITY

7.4.1. Consents. Customer warrants and covenants that it has obtained or will obtain, as appropriate, any consents from Authorized Users or data subjects as necessary for Customer’s use of the Cloud Generation Services, to include, without limitation, (i) parental or guardian consent for Authorized Users under the age of 16, and (ii) consent to Cloud Generation’s collection, use, and disclosure of Customer Data (to the extent such data includes personal information), and (iii) Cloud Generation’s tracking, recordation, processing and use of Customer Data and other information relating to Authorized Users’ use of the Cloud Generation Services

7.4.2. Customer Configuration. Customer agrees that Cloud Generation shall have no obligation or liability to Customer for any unauthorized access to Customer Data or any other data security related claims arising out of or related to Customer’s election of a configuration option, when a more secure option not selected by Customer was made available by Cloud Generation. Customer certifies that any user designated by the Customer to have access and authority sufficient to elect configuration options is a duly authorized and competent representative of Customer, including to bind Customer for such purposes, pursuant to this Agreement. Configuration options that may enhance or decrease security features include, but are not limited to, whether to present terms of use or a privacy policy at log-in for other users of Customer, whether to enable an auto-log-on feature that allows any person with a link to access Customer Data without any log-on requirement, and whether to allow a Customer-designated user to “impersonate” another user.

7.4.3. Notification of Security Breach. If either party believes that a Security Breach (as defined below) has occurred, such party must promptly notify the other party as promptly as possible without undue delay, but in any event within forty-eight (48) hours following confirmation of the breach or any shorter period as may be required by law. Additionally, each party will reasonably assist the other party in mitigating any potential damage. As soon as reasonably practicable after any such Security Breach, Cloud Generation shall conduct an investigation and, upon request, will share the results of its investigation and its remediation plan with Customer. “Security Breach” means (i) the loss or misuse of Customer Data; or (ii) the inadvertent, unauthorized, and/or unlawful processing, disclosure, access, alteration, corruption, transfer, sale or rental, destruction, or use of any Customer Data.

8.0 WARRANTIES

8.1. CLOUD GENERATION SERVICES WARRANTY

Cloud Generation represents and warrants that, during the Term, the Cloud Generation Services will include the functionality and meet the performance requirements set forth in an Order Form and in the published specifications for the Cloud Generation Services. As Customer’s sole and exclusive remedy for any breach of the foregoing limited warranty, Cloud Generation will, in its sole discretion, either (i) use commercially reasonable efforts to remedy the nonconformity within a commercially reasonable period of time or (ii) terminate this Agreement and refund the prepaid fees for the unexpired remaining unused term. The Cloud Generation warranties set forth above shall not apply to any nonconformities resulting from Customer’s or its Authorized Users’ acts or omissions or noncompliance with this Agreement or the documentation for the Cloud Generation Services or resulting from any hardware, software, data, materials or other products or services not developed or provided by Cloud Generation.

8.2. DISCLAIMERS

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE CLOUD GENERATION SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” BASIS, AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, CLOUD GENERATION MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE CLOUD GENERATION SERVICES OR ANY MATTER WHATSOEVER. CLOUD GENERATION AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE CLOUD GENERATION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THE CLOUD GENERATION SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ERRORS OR DEFECTS IN THE CLOUD GENERATION SERVICES WILL BE CORRECTED; OR (D) THE CLOUD GENERATION SERVICES OR THE SERVER(S) THAT HOST THE CLOUD GENERATION SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

9.0 INDEMNITY

9.1. INTELLECTUAL PROPERTY INDEMNIFICATION

Cloud Generation will indemnify, defend, and hold harmless Customer from and against any losses, liabilities, damages or expenses (including reasonable attorneys’ fees) that are finally awarded by a court of competent jurisdiction or agreed to by Cloud Generation in settlement in connection with Customer’s defense of any third party claims, demands, suits or proceedings alleging that Customer’s use of the Cloud Generation Services, in whole or in part, when used in accordance with documentation or other instructions from Cloud Generation, directly infringes any copyright or trade secret right arising under United States law (a “Claim”) and, provided that: (a) Customer promptly notifies Cloud Generation in writing of such Claim with reasonable details setting forth why Customer believes that Cloud Generation has an indemnity obligation; (b) Customer accords Cloud Generation, at Cloud Generation’s choice, sole control of the defense and/or settlement of the Claim; and (c) Customer furnishes to Cloud Generation, at Cloud Generation’s request, all relevant information available to Customer and reasonable cooperation and assistance in defense and settlement of the Claim.

9.2. MITIGATION EFFORTS

If Customer is enjoined from using the Cloud Generation Services or Cloud Generation reasonably believes it will be enjoined, Cloud Generation shall have the right, at its sole option, to obtain for Customer the right to continue use of the Cloud Generation Services or to replace or modify the Cloud Generation Services so that they are no longer infringing. If neither of the foregoing options is reasonably available to Cloud Generation, then use of the Cloud Generation Services may be terminated at Cloud Generation’s option and Cloud Generation’s sole liability shall be to refund any prepaid fees for the Cloud Generation Services that were to be provided after the effective date of termination.

9.3. EXCEPTIONS TO INDEMNIFICATION OBLIGATION

Cloud Generation shall not be required to indemnify Customer to the extent a Claim relating to subsection (b)(i) above arises out of, and would not have occurred but for, any of the following exclusions: (a) modification of the Cloud Generation Services by Customer or its employees, consultants, contractors or other representatives in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (b) use of the Cloud Generation Services in a manner inconsistent with Cloud Generation’s documentation or the rights granted herein; or (c) use of the Cloud Generation Services in combination with any hardware, software or other products or services not provided or otherwise authorized by Cloud Generation.

This Section 9 constitutes the Customer’s sole and exclusive remedy and Cloud Generation’s only liability in respect of claims of intellectual property infringement.

10.0 LIMITATION OF LIABILITY

10.1. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES WHICH ARISE FROM OR RELATE TO THIS AGREEMENT, WHETHER CLAIMED TO HAVE RESULTED FROM A BREACH OF CONTRACT, THE COMMISSION OF ANY TORT, INCLUDING NEGLIGENCE, EITHER PARTY’S STRICT LIABILITY, OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY. NOTHING IN THIS SECTION SHALL LIMIT EITHER PARTY’S LIABILITY FOR BODILY INJURY TO A PERSON, DEATH, OR FOR PHYSICAL DAMAGE TO OR DESTRUCTION OF PERSONAL PROPERTY. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER OF CONSEQUENTIAL AND OTHER DAMAGES REFLECTS THE ALLOCATION OF RISKS BETWEEN THEM AND FORMS AN ESSENTIAL PART OF THE BARGAIN BETWEEN THEM.

10.2. EXCEPT FOR (A_ CLAIMS ARISING PURSUANT TO SECTION 10 (INDEMNITY), OR (B) A PARTIES’ CONFIDENTIALITY OBLIGATION, IN NO EVENT SHALL THE TOTAL LIABILITY OF A PARTY EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO CLOUD GENERATION HEREUNDER DURING THE TWELVE MONTH PERIOD PRECEDING THE CLAIM, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.

11.0 TERM AND TERMINATION

11.1. TERM

The initial term of this Agreement shall commence upon the signature date of the Order Form to which this Agreement is attached and shall be co-terminus with the term set forth in the Order Form (the “Initial Term”). Following expiration of the Initial Term, this Agreement and the applicable Order Form shall thereafter automatically renew and continue in one (1) year increments (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party gives the other party at least sixty (60) days’ written notice of non-renewal prior to the expiration of the Initial Term or Renewal Term, as the case may be.

11.2. TERMINATION FOR CAUSE

Either party may terminate this Agreement immediately for cause by delivering not less than thirty (30) days’ written notice to the other party in accordance with the following:

11.2.1. INSOLVENCY EVENT

Either may terminate this Agreement upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within 60 days; or (iv) either party is liquidating or dissolving.

11.2.2. DEFAULT

Either party may terminate this Agreement if the other party violates any covenant, agreement, representation or warranty contained herein in any material respect or defaults or fails to perform any of its obligations or agreements hereunder in any material respect (to include non-payment of any amounts owed hereunder or pursuant to an Order Form), which violation, default or failure is not cured within thirty (30) days after notice of the breach from the non-breaching party stating its intent to terminate this Agreement for cause. Notwithstanding the foregoing, if the nature of any breach is such that a cure would be impossible in the non-breaching party’s reasonable judgment, then the non-breaching party may terminate this Agreement immediately without allowing for a cure period. Further, Cloud Generation may elect to immediately suspend the Cloud Generation Services during the pendency of any material breach; provided that any such suspension shall not constitute a waiver of Cloud Generation’s right to terminate the Cloud Generation Services or Order Form in accordance with the terms hereof.

11.3. EFFECT OF TERMINATION

In the event of any expiration or termination of this Agreement, all Order Forms and all licenses granted to Customer shall immediately terminate. Customer agrees and acknowledges that in such case Cloud Generation has no obligation to retain any Customer Data and may delete such Customer Data in accordance with the requirements of Section [5.2.3]. The termination of this Agreement, whether for breach or otherwise, shall not affect any obligations or liabilities of the parties arising prior to the date of termination, including, without limitation, Customer’s obligation to pay Fees. Sections 5 (Data Rights; Ownership), 6 (Payment Terms), 7 (Confidential Information; Data Security), 9 (Indemnification); 10 (Limitation of Liability) and 12 (Miscellaneous) shall survive termination or expiration of this Agreement. .

12.0 MISCELLANEOUS

12.1. FORCE MAJEURE

Neither party shall be liable to the other for delays or failures in performance (other than an obligation to pay fees arising hereunder or pursuant to an Order Form) resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, riots, acts of war, governmental regulations, communication or utility failures. The party seeking relief from the force majeure event shall promptly notify the other of the occurrence of such event.

12.2. COMPLIANCE WITH LAWS.

Each Party will, at its own expense, (i) obtain and maintain any authorizations, approvals, licenses, filings or registrations necessary to its performance of the terms hereof, and (ii) comply with all local, state, federal and foreign laws that are applicable to it.

12.3. IMPORT AND EXPORT

Each party shall comply with all applicable laws and regulations governing use, export, re-export, and transfer of the software and data and shall obtain all required U.S. and local authorizations, permits, or licenses.

12.4. NO AGENCY

This Agreement does not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of this Agreement. Each party hereto is an independent contractor. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

12.5. NO THIRD PARTY BENEFICIARIES

Unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Cloud Generation, Cloud Generation’s Affiliates, and Customer any rights, remedies or other benefits under or by reason of this Agreement.

12.6. EQUITABLE RELIEF

Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation and the non-breaching party is therefore entitled to seek prompt injunctive relief to enjoin the breaching party from any and all acts in violation of those provisions. Such injunctive relief remedy shall be cumulative and not exclusive and the non-breaching party is entitled to seek any other relief available to such party at law or in equity.

12.7. ATTORNEY’S FEES

In addition to any other relief awarded, the prevailing party in any action arising out of this Agreement shall be entitled to recover its reasonable fees (including attorneys, accountants and other professionals) and costs.

12.8. NOTICES

Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service or by first class mail (certified or registered), or by electronic mail confirmed by first class mail (registered or certified), to the designated address of record of the other party. Notices will be deemed effective: (i) three (3) business days after deposit, postage prepaid, if mailed, (ii) the next day if sent by overnight mail, or (iii) the same day if sent by electronic mail and confirmed as set forth above.

12.9. ENTIRE AGREEMENT; ORDER OF PRECEDENCE

12.9.1. This Agreement, including all Order Forms and exhibits which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written communications between the parties relating in any way to the subject matter hereof. This Agreement is intended by the parties to be a complete and wholly integrated expression of their understanding and agreement. This Agreement may only be modified by a written document executed by the parties hereto.

12.9.2. The terms and conditions of an Order Form, and any adjustments thereto, are and shall be incorporated herein by reference. In the event of any conflict between the terms of this Agreement and the terms of an Order Form, the terms of the Agreement shall control unless the Order Form indicates the specific provision(s) of this Agreement that it overrides.

12.10. ASSIGNMENT

Neither party may assign this Agreement or any of its rights or interests hereunder or thereunder, without the prior written consent of the other party. Notwithstanding the foregoing, a party may, with notice to the other party, assign this Agreement or any of its rights or interests hereunder, or delegate any of its obligations hereunder, to (1) an Affiliate, (2) its successor pursuant to a merger, reorganization, consolidation or sale, or (3) an entity that acquires all or substantially all of that portion of its assets or business. This Agreement shall be binding upon, and shall inure to the benefit of, the legal successors and permitted assigns of the parties.

12.11. WAIVER

The failure by either party to enforce any provision of this Agreement will not be deemed a present or future waiver of that or any other provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by the parties.

12.12. SEVERABILITY

If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

12.13. GOVERNING LAW

The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the Commonwealth of Virginia, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of laws. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. Notwithstanding anything to the contrary set forth herein, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.

12.14. ARBITRATION

12.15. In the event of any dispute, potential claim, question, or disagreement arising from or relating to this Agreement or the breach thereof (collectively, a “Dispute”), the aggrieved Party shall notify the other of the aggrieved Party’s intent to address and resolve the Dispute, and the specific terms of such Dispute. The Parties shall use their commercially reasonable efforts to promptly settle the Dispute. Such efforts will include, at a minimum, that executives of each Party consult, meet in person, and negotiate with each other in good faith. If the Parties do not resolve the Dispute pursuant to the foregoing paragraph within a period of 30 days following the aggrieved Party’s notice, then, upon notice by either Party to the other, the Parties agree to confidentially mediate the Dispute in good faith according to the American Arbitration Association (“AAA”) Commercial Mediation Procedures in Fairfax County, Virginia or another location agreed to by the Parties. The Parties shall work in good faith with the mediator to attempt to complete the mediation within 30 days of such notice.

12.16. If the parties do not resolve the Dispute pursuant to the foregoing paragraph, then, upon notice by either Party to the other, the Dispute shall be finally settled by binding arbitration administered by the AAA in accordance with the provisions of its rules applicable to commercial disputes. The arbitration shall be conducted on a confidential basis in Fairfax County, Virginia, or another location agreed to by the Parties. The arbitration shall be conducted before a single arbitrator experienced in contract, finance and technology law; except that any dispute involving claims in excess of [$150,000] may be, at the election of either party, conducted before a panel of three such arbitrators. Any decision or award shall be in writing and shall provide an explanation for all conclusions of law and fact. The arbitrator may award the prevailing Party on each claim or defense, if any, as determined by the arbitrator, some or all of its Costs, in the arbitrator’s sole discretion. “Costs” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, out-of-pocket expenses such as copying and telephone, witness fees, and reasonable attorneys’ fees.

12.17. HEADINGS

Headings used in this Agreement are for ease of reference only and shall in no way define, limit, or construe the scope or extent of such provision or in any way affect the construction or interpretation of such provision or this Agreement.