CloudCover Standard Terms & Conditions
1. TERM: This Agreement shall become effective as of the commencement date or date of digital signature, whichever is earlier, and shall remain in effect until terminated per the terms of this Agreement. Coverage listed on this Agreement will begin as of the Commencement date listed on the Agreement and remain in effect through the term as specified on the Agreement.
2. SCOPE OF AGREEMENT: SUPPLIER shall provide Coverage which may include maintenance services, technical support, monitoring, equipment, and/or software to CUSTOMER in accordance with the Quote and/or Agreement and/or Statement of Work (SOW). Upon coverage setup, if there is a variance between actual equipment and covered equipment, the covered equipment and the price of coverage will be adjusted accordingly. This price adjustment will be effective upon the commencement of coverage.
3. CUSTOMER RESPONSIBILITIES: CUSTOMER agrees to: (1) provide the proper environment, electrical and telecommunications/network connections, (2) provide remote access as required by the Agreement and/or Statement of Work, and/or a work space for covered equipment, (3) maintain a procedure external to the software program(s) and host equipment for reconstruction of lost or altered files, data, and/or programs (4) provide SUPPLIER a list of any covered equipment with pre-existing conditions, that is, equipment suspected or known to have problems or issues in the past, (5) provide passwords necessary to access CUSTOMER equipment covered under this Agreement, and (6) authorize SUPPLIER and its employees/affiliates agency to act on CUSTOMER’S behalf on non-financial or contractually obligating matters, with related 3rd party providers/vendors as necessary to fulfill Agreement services. CUSTOMER is responsible for notifying SUPPLIER of the presence of any hazardous material (e.g., asbestos) on CUSTOMER premises prior to the commencement of any Coverage. CUSTOMER is also responsible for removal of any such hazardous material or correction of any hazardous condition that affects SUPPLIER’S performance of Coverage. Applicable Service Level Agreements will be put on hold until CUSTOMER provides written notification of removal or corrections of the hazardous condition; SUPPLIER shall not be liable to CUSTOMER as a result of any related delays. CUSTOMER is responsible for ensuring that CUSTOMER’S covered equipment is adequately secured against unauthorized intrusion, and backing up CUSTOMER’S data and files.
4. WARRANTY: SUPPLIER services will be in compliance with applicable laws and performed according to accepted industry standards. Any purchased products will be free of defect in materials, workmanship and design as warranted by the manufacturer of each product. IN THE EVENT OF A DEFECTIVE PURCHASED PRODUCT, CUSTOMER’S EXCLUSIVE REMEDY IS FOR SUPPLIER TO MAKE REPAIRS OR PROVIDE REPLACEMENTS OF THE DEFECTIVE PURCHASED PRODUCT WITH NEW OR REFURBISHED PRODUCT AT SUPPLIER’S DISCRETION.
5. WARRANTY AND MAINTENANCE SERVICE EXCLUSIONS: Warranty of purchased Products or Coverage service does not cover repair for damages, or malfunctions, or performance characteristics caused by: (1) use of non-SUPPLIER or ORIGINAL EQUIPMENT MANUFACTURER furnished equipment, software, or facilities with the covered equipment. (2) Use of equipment, software, or facilities not covered by SUPPLIER Coverage. (3) CUSTOMER failure to follow SUPPLIER installation, operation or maintenance instructions, including CUSTOMER failure to permit SUPPLIER timely remote access to covered equipment. (4) Failure or malfunction of equipment, software, or facilities not under SUPPLIER Coverage. (5) Actions of non-SUPPLIER personnel. (6) Power surge and/or electrical storm. (7) Equipment misuse, abuse or mishandling. (8) Force Majeure conditions as stated in Article 10. Unless otherwise specified, Coverage does not include batteries, tapes, and/or other consumables SUPPLIER does not warrant uninterrupted or error free operation of the covered equipment. In addition, SUPPLIER is not obligated to provide warranty or Coverage if CUSTOMER modifies or uses the covered equipment outside of manufacturer’s specifications or for any equipment with a pre-existing condition. During initial setup, any maintenance issues discovered by SUPPLIER or brought to SUPPLIER’s attention by the CUSTOMER will be considered preexisting until the coverage setup process is completed by SUPPLIER. CUSTOMER initiated system additions, product moves, or system programming changes or additions are not included under maintenance coverage. SUPPLIER will perform repair or other services not covered by this Agreement at SUPPLIER’S standard rates for such service. SUPPLIER does not warrant merchantability, express or implied, of fitness for a particular purpose of any purchased Products. Products are reasonably secured by design, and SUPPLIER will maintain procedures to safeguard CUSTOMER’S data and files from unauthorized access or disclosure. However, SUPPLIER makes no warranty, express or implied, that covered equipment is immune from fraudulent intrusion, unauthorized use or disclosure or loss of proprietary information. By using covered equipment with certain features or separately using such features, CUSTOMER assumes all responsibility for assuring their proper and lawful use. CUSTOMER agrees to notify SUPPLIER prior to relocating covered equipment to a different physical address. Additional charges will apply if SUPPLIER incurs costs as a result of relocation of covered equipment. If the covered equipment supports Telephony or Internet Protocol (IP) facilities, CUSTOMER may experience certain compromises in performance, reliability and security, even when the covered equipment performs as warranted and within manufacturer specifications. These compromises may become more acute if CUSTOMER fails to follow SUPPLIER recommendations for configuration, operation and use of the covered equipment. CUSTOMER acknowledges these risks as acceptable.
6. INDEMNITY: Each Party (at its own expense) will defend the other Party and its Affiliates, and their employees, directors, and officers against or settle at its own expense any third-party claims, suits, actions or proceedings asserted against such Party and its Affiliates, and their employees, directors, and officers (collectively, the “Indemnified Party”) arising out of or relating to bodily injury to or death of any person, or loss of or damage to real or tangible personal property; to the extent that such claim, suit, damage, or expense was proximately caused by any negligent or intentional act or omission on the part of the Party from whom indemnity is sought, its agents or employees (“Indemnifying Party”). The Indemnifying Party will defend, indemnify and hold harmless the Indemnified Party from and against any and all finally awarded damages, costs and expenses, including costs of investigation, court costs and reasonable outside attorneys’ fees in connection with the indemnified claim.
7. EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY: The entire liability of SUPPLIER and its subsidiaries, affiliates and subcontractors, (and the directors, officers, employees, agents, representatives, subcontractors, and supplier of all of them) and CUSTOMER’S exclusive remedies for any damages arising from the performance or non-performance of any work or service, regardless of the form of action, whether in contract, tort including negligence, strict liability or otherwise shall be: (1) for SUPPLIER’S failure to perform any material term of this Agreement (e.g., SUPPLIER Coverage obligations), CUSTOMER’S sole remedy shall be to cancel this Agreement without incurring cancellation charges if SUPPLIER fails to correct such failures within thirty (30) days of receipt of CUSTOMER’S written notice; (2) for damages to real or tangible personal property for which SUPPLIER’S sole gross negligence was the proximate cause, CUSTOMER’S right to proven damages to property or person, not to exceed the current year’s total contract value. Neither Party shall be liable for indirect or incidental damages, or special or consequential damages, including but not limited to: lost profits, savings or revenues of any kind; lost, corrupted, misdirected or misappropriated data or messages; and charges for common carrier telecommunication services or facilities accessed through or connected to covered equipment. Neither Party shall be liable for the types of damages enumerated above whether or not the other Party has been advised of the possibility of such damages. This paragraph shall survive the failure of any exclusive remedy. Notwithstanding the foregoing, nothing in this Section 7 shall limit (a) an Indemnifying Party’s liability to indemnify an Indemnified Party as set forth in Section 6 above or (b) any party’s liability for fraud or willful misconduct.
8. CANCELLATION: CUSTOMER shall have the right to cancel all or portions of non-coverage orders prior to shipment of product or the delivery of services, by providing SUPPLIER with written notice to cancel, and by paying applicable cancellation charges. Cancellation charges shall equal fifteen percent (15%) of the applicable products or unfulfilled service order. CUSTOMER shall remain liable for the complete price of Products already shipped to CUSTOMER, and for all services already performed and for any applicable cancellation charges. CUSTOMER shall not have the right to cancel any portion of software, licenses, and/or software development orders.
9. CONSUMER PRICE INDEX ADJUSTMENTS: If the Consumer Price Index, All Urban Consumers (“CPI-U”), as published by the Bureau of Labor Statistics of the U.S. Department of Labor, increases by more than five percent (5%) in the previous calendar year, then SUPPLIER may raise the contracted rate for Coverage by the CPI-U percentage of increase. To take this option SUPPLIER will give CUSTOMER ninety (90) days written notice of the pending rate increase. Once CUSTOMER receives notice, CUSTOMER will have thirty (30) days to cancel the affected Coverage by providing SUPPLIER sixty (60) days written notice. Under this circumstance CUSTOMER may cancel affected Coverage without cancellation fees as listed in Article 8.
10. FORCE MAJEURE: Neither Party shall be liable for any failure to perform its obligations under this Agreement if prevented from doing so by a cause or causes including acts of God, or the public enemy, fires, floods, storms, earthquakes, riots, strikes, lockouts, wars or war operations, restraints of government or other cause or causes which could not with reasonable diligence be controlled or prevented by the Party; provided that the Party suffering such force majeure event shall provide the other Party with notice thereof as promptly as practicable together with a reasonable estimate of when such party may resume performing its obligations under this Agreement.
11. TERMS OF PAYMENT: Payments for Coverage listed on the Quote/Agreement or on future Quotes/Agreements along with applicable Sales and/or Use taxes are due before the first day of the applicable period’s Coverage start date (the “Due Date”). Coverage is billed/invoiced up-front for the duration of coverage, with the Due Date being thirty (30) days after invoice date. Coverage change requests will be effective upon completion of the billing cycle that fulfills the written notification requirement. Software subscription charges are in full month increments. The CUSTOMER past due unpaid balance will be considered delinquent and subject to a late payment fee equal to twenty five dollars ($25) per month or one percent (1%) per month, whichever is greater. A handling fee may be charged for special billing and invoicing requests. Acceptable methods of payment are EFT and check.
12. CUSTOMER DEFAULT AND MATERIAL TERMS: CUSTOMER Material Terms include but are not limited to the following: (1) Failure to make payment by Due Date as described in Article 11. (2) Failure to perform CUSTOMER non-monetary obligations listed in Article 3. If CUSTOMER fails to perform any Material Term or condition of this Agreement, SUPPLIER shall notify CUSTOMER of the breach in writing, and CUSTOMER has thirty (30) days to cure the breach. If breach is not cured in thirty (30) days, CUSTOMER will be in default and SUPPLIER may cancel this Agreement immediately and exercise any available rights. Upon cancellation by SUPPLIER due to CUSTOMER default, the SUPPLIER may exercise any or all of the following non-exclusive remedies: (1) Bill cancellation charges outlined in Article 8 along with any other applicable charges. (2) Suspend Coverage and/or terminate performance. (3) Repossess equipment provided by SUPPLIER. (4) Suspend and/or terminate licenses. (5) Revoke CUSTOMER credit. (6) Offset monies due CUSTOMER.
13. DISPUTE RESOLUTION: In the event that either Party initiates litigation, then the prevailing Party shall be entitled to an award of third party collection fees, reasonable attorneys’ fees and expenses of litigation (arbitration), including without limitation the reasonable fees of expert witnesses. The Parties waive trial by jury.
14. CHOICE OF LAW AND VENUE: To resolve all disputes related to or arising from the Parties’ Agreement (the “Disputes”), the Parties consent to and agree to the jurisdiction of those courts (state or federal) located in New York County, New York and that those courts have exclusive venue over all Disputes. The Parties further agree that New York State law governs the resolution of all Disputes.
15. CUSTOMER OFFSET RESTRICTION: CUSTOMER agrees that it shall not offset any funds owed to SUPPLIER under this Agreement for any reason, including without limitation refunds and performance.
16. BILLING AND NOTICES: All billing and notices required or permitted to be given hereunder shall be in writing and delivered in person or sent by mail or email and given to or made upon the respective Parties as listed hereunder. Address changes must be submitted to the other Party with sixty (60) days written notice prior to the effective date.
17. NON-SOLICITATION OF SUPPLIER EMPLOYEES: SUPPLIER personnel are valuable resources for SUPPLIER and SUPPLIER will be harmed if a CUSTOMER hires SUPPLIER personnel to provide, without limitation, maintenance or installation services or advice, or both, for the CUSTOMER. Therefore, CUSTOMER will not knowingly solicit the hiring or hire a SUPPLIER employee of whom CUSTOMER became aware through the services provided under this Agreement, as an employee, agent, or independent contractor, during the term of this Agreement and for two (2) years after the expiration of the term. Should CUSTOMER violate this provision, then CUSTOMER is liable to SUPPLIER in the amount of Fifty Thousand U.S. Dollars ($50,000.00), as a non-exclusive remedy, and that sum is a reasonable forecast of the loss to SUPPLIER and because such loss, including the need for a substitute performance, is difficult to estimate accurately.
18. ASSIGNMENT – SUCCESSORS AND ASSIGNEES: With written notice this AGREEMENT shall be binding upon and inure to the benefit of the Parties hereto, their respective successors and assignees.
19. SEVERABILITY: In the event that any term and/or condition is held to be illegal, invalid, or unenforceable, then such term and/or conditions shall be deemed to be separate from the remaining terms and conditions of this Agreement and such remaining terms and conditions shall remain in full force and effect as legal, valid, and enforceable terms and conditions.
20. SUBSEQUENT ALTERATIONS: No change, modification, alteration or rescission of this Agreement shall be valid unless it is made in writing and signed by the Parties, and no course of dealing or performance between the Parties, and no usage of trade, shall be construed to alter the terms hereof.
21. INTEGRATED AGREEMENT: This Agreement and the associated Quote delivered with this Agreement constitutes the entire, final, complete and fully integrated Agreement of the Parties relating to its subject matter and shall supersede and supplant the terms and conditions of any quotations, proposals, negotiations, representations, promises, acknowledgments, invoices or other alleged understandings, written or oral. To the extent that any terms and conditions set forth in any purchase order issued in connection with performance under this Agreement are inconsistent with this Agreement or any of its Exhibit(s)/Proposal(s), this Agreement and its Exhibit(s)/Proposal(s) shall control.
22. SURVIVAL CLAUSE: ARTICLES 4, 5, 7, 13, 14, 15, 16, 18, 19, and 22 shall survive cancellation of this Agreement for a period of seven (7) years. Article 17 shall have a two (2) year survival period. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns.