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Master Service Agreement

January 9, 2019 - March 7, 2019

The terms contained in this Master Service Agreement (“Agreement”) governs the purchase and use of products, content and services (“Services”) provided by Cloudability Inc. (“Cloudability”, “Us”, “We” or “Our”), located at 334 NW 11th Avenue, Portland, OR 97209, United States to you (“You”, “Your”, or “Customer”).

By accepting this Agreement, You are agreeing to these terms. You agree that You are executing this Agreement on behalf of Your entity, and represent and warrant that You have the right and authority to do so. All other Users (defined below) from Your organization will be subject to the terms of this Agreement.

This Agreement is effective as of the date You accept the Agreement (the “Effective Date”).

Our Services are diverse and sometimes additional terms may be required for new Services that We introduce. If additional terms are required, those terms will be presented to You for approval in a separate agreement (“Supplemental Services Agreement”) which upon both parties’ acceptance will become part of this Agreement.

Description of Services

Cloudability retrieves, stores and analyzes data for a variety of third party cloud infrastructure, platform and software providers. Services include but are not limited to analytics, data, reporting and optimization tools made available from Our websites. Such Services will be further detailed in a Service Order (defined below). We reserve the right to change the Services (including the content, appearance, design, functionality and all other aspects thereof), access procedures, and documentation at any time for any reason as long as the overall functionality of the Services do not materially decrease.

Use of Services, Your Responsibilities

Account Creation. In order to access and use the Services, You will need to open an account with Us (“Account”). When creating an Account, You will be required to provide certain personal information about Yourself and establish a user identification and password (“Registration Information”). Please see Our privacy policy, available at https://www.cloudability.com/privacy/, which governs Our handling and use of data and information (including Registration Information and Account Service Information) that You may provide Us. You are responsible for maintaining the confidentiality, accuracy, and truthfulness of Your and Your Users’ Registration Data.

Additional Users. You may choose to allow Your employees, contractors or other agents access to Your Account (“Users”) by supplying them with their own user identifications and passwords. You will be responsible for the actions of all Users added to Your Account, including their compliance with this Agreement and any Supplemental Services Agreement, applicable laws and regulations.

Account Notifications. All Account notifications will be sent electronically to the email address provided in Your Registration Information. These communications are considered part of the Services and You may not be able to opt-out from receiving them.

Cloud Service Account Information. By submitting information, data, passwords, usernames, PINs, other log-in information, materials and other content (including Registration Information) through the Services about Your use of third-party cloud services (“Cloud Service Account Information”), You grant to Us a worldwide, non-exclusive, royalty-free, license to use, distribute, reproduce, and store the Cloud Service Account Information solely for the purposes expressly authorized herein. This license may also be exercised on behalf of Us by third parties acting on Our behalf (e.g., technology partners, service providers and independent contractors). You are responsible for the accuracy, quality, integrity and legality of Your Cloud Service Account Information (and of the means through which it was acquired by You or Your Users).

Service Data. You are responsible for authorizing and enabling Us to submit Your Cloud Service Account Information (including usernames and passwords) to third party services, websites or APIs that You designate, for the purposes of retrieving cost, usage, billing, and other data, statistics, or information necessary for providing the Services (“Service Data”). Such access will be read-only, and You acknowledge and agree that when We access and retrieve Service Data from third parties, We do so at Your request.

Acceptable Use. You are responsible for Your and Your Users’ compliance with the acceptable use of Our Services as defined in Our Acceptable Use Policy located at https://cloudability.com/terms/acceptable-use-policy/.

Suspension of Services. We may suspend the provision of Services in the event You violate the terms of this Agreement (including any Supplemental Services Agreement or Service Order), including failure to pay amounts due. We may also temporarily suspend Your access to the Services in the event that We deem it necessary to prevent harm to Your data or the Services. Any suspension will only be for the scope and duration necessary to limit harm to You, Cloudability, the Services or third parties.

Our Responsibilities

Operation of Purchased Services. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week except for (i) planned downtime for routine maintenance or periodic updating, or (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), equipment failures, denial of service attacks, periodic updating or any service provider failures or delays.

Support. We will provide Our standard level of technical support for the Services free of charge during Our regular business hours.

Data Protection. Cloudability will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Your Cloud Service Account Information, in accordance with applicable industry standards. Cloudability may access Cloud Service Account Information or Service Data as necessary to identify or resolve technical problems or to provide Users with support.

Beta Services. You may be invited or granted access to new and not-yet released features or functionality (“Beta Services”). Beta Services are for evaluation only and are not considered “Services” under this Agreement. We may discontinue Beta Services at any time or may choose to never make them fully available. We will have no harm or damage arising out of or in connection with any Beta Services.

License Grant

License to You. So long as You comply with the terms of this Agreement, We grant You and Your authorized Users a limited, royalty-free, non-exclusive, non-transferable license to use, access, input data into, process data through and display the Services for Your internal business purposes. Your (nor Your Users) may not use, copy, modify, rent, loan, lease, sublicense, create derivative works or distribute the Services for any other purposes or make the Services available to non-authorized users. You will not, and will not authorize Users to: (i) sell, resell, lease, lend, or the functional equivalent thereof, the Services in whole or in part, to a third party, (ii) alter, change, modify, adapt, translate or make derivative works of the Services, (iii) transmit any viruses or malware through the Services, or (iv) decompile, disassemble, or reverse engineer the Services or any elements thereof, or otherwise derive source or object code from the Services or any elements thereof. Client agrees not to access the Services by any means other than through the interfaces that We provide.

Fees and Payment for Purchased Services

Purchased Services. Cloudability offers access to the Services for a fee. To enable and use the Services, You are required to execute an order for such Services (“Service Order”), and pay the fees detailed in the Service Order. The Subscription Term and fees for the Services can be found in the Service Order executed when procuring the Service.

Usage Limits. Some of Our Services are subject to usage limits specified in the Service Order. Subscriptions to the Cloudability platform contain a limit on the aggregate amount You have elected to be monitored by the Services for a specific period of time (“Monitored Costs Plan Limit”). “Monitored Costs” are gross charges from third-party cloud providers. Your Monitored Costs Plan Limit may be increased by executing an updated Service Order that will include any resulting changes in fees and the Subscription Term. The changes will become effective on the billing period following execution of the Service Order.

Fees. Subscriptions to the Cloudability platform include a flat fee for use of the Services up to the Monitored Costs Plan Limit specified in the Service Order (“Subscription Fee”). Unless otherwise specified in the Service Order, Subscription Fees are billed and payable annually in advance of the Subscription Term. Subscriptions also include fees for additional usage above and beyond the Monitored Costs Plan Limit (“Additional Usage Fees”). Unless otherwise specified in the Service Order, Additional Usage Fees are billed (i) as a percentage of the Monitored Costs, and (ii) in each month as they occur. Unless otherwise specified in the Service Order, all fees are quoted, billed and payable in U.S. Dollars.

Invoicing and Payments. Invoices for Services are presented and delivered electronically to You. All payment obligations are non-cancelable and all amounts paid are nonrefundable. If payment is made via credit card or electronic money transfer, such payment shall be chargeable upon invoice date and no receipt will be provided. Cloudability reserves the right to charge You directly via another method if reasonable efforts made to obtain a valid credit card or electronic payment authorizations fail. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

Payment Terms and Overdue Charges. Payment terms are net thirty (30) days from the date the invoice is presented to You, without offsets or deductions of any kind. Late payments will bear interest at 1.5% per month or the maximum rate permitted by law (whichever is less), and are calculated from the date such amount was due until the date that payment is received by Cloudability.

Taxes. Cloudability's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You are responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Cloudability's income. You are responsible for paying all taxes associated with Your purchase of any Services. If Cloudability has the legal obligation to pay or collect taxes for which You are responsible, the appropriate amount shall be invoiced to and paid by You unless You provide Cloudability with a valid tax exemption certificate authorized by the appropriate taxing authority.

Billing Disputes. If You believe Your bill is incorrect, You must contact Cloudability in writing within thirty (30) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

Functionality. You agree that Your purchases are not contingent on the delivery of any future release of new features, functionality, nor are Your purchases dependent on any oral, written or public comments made by Cloudability regarding such features, functionality or services.

Changes to Pricing and Fees. We reserve the right to modify Our prices and fees and to introduce new fees upon thirty (30) days prior notice to You. Any such changes will only become effective upon renewal of a Subscription Term.

Free Trials

Free Trial. We offer free trials of Our Services as a way for You to conduct an evaluation. Trials may be extended or terminated by Us for any reason at any time. If You are using Our Services as part of a free trial, any data or information You enter into the Services, and any customizations made to the Services by or for You during Your trial period will be permanently lost unless You purchase a Subscription to the same Service as those covered by the trial before the end of the trial period. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, DURING THE FREE TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY SUPPORT, REPRESENTATIONS, WARRANTIES OR INDEMNITIES.

Indemnification

Indemnification by Us. We agree to defend You (and Your affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, “Your Indemnified Parties”) against any claim or suit made or brought against any of Your Indemnified Parties by a third party arising out of: (i) Our willful, negligent, tortious or criminal acts or omissions, and (ii) Our infringement of any third party’s intellectual property rights or other proprietary right (including of publicity and privacy) rights (“Claim Against You”), and will indemnify You from damages and reasonable attorney fees finally awarded against You or for amounts paid by You under a court-approved settlement of a Claim Against You. If We receive notice of any infringement, We may (a) modify Our Services so that it no longer infringes (without substantively diminishing the features or functionality of the Services You have subscribed to) or, (b) procure a license that enables You to continue to use the Services, or (c) terminate Your Service Order(s) with 30 days’ notice and provide You a refund of any prepaid fees covering the unused portion of the Monitored Costs Plan Limit of those terminated Service Order(s).

Indemnification by You. You agree to defend, indemnify and hold harmless Cloudability (and its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, “Cloudability Indemnified Parties”), from and against all claim or suit made or brought against any of the Cloudability Indemnified Parties by a third party, to the extent such claim arises from: (i) Your access or use of the Services in violation of this Agreement, or (ii) Cloudability’s use, in accordance with this Agreement, of Your Cloud Service Account Information, Registration Information, or other data You provide Us under this Agreement violates applicable law or the intellectual property rights or other proprietary right (including rights of publicity and privacy) (“Claim Against Us”), and will indemnify Us from any damages and reasonable attorney fees finally awarded against Us or for amounts paid by Us under a court-approved settlement of a Claim Against Us.

Procedure. The indemnification and duties to defend described in this section are subject to the indemnified party: (i) promptly providing the indemnifying party with written notice of any claim, (ii) giving the indemnifying party sole control over the defense and settlement of the claim (provided that any settlement fully releases the indemnified party from all liability), and (iii) providing the indemnifying party with all reasonably necessary assistance to prepare and execute a defense, at its expense.

Representations

Representations. Each party to this Agreement represents and warrants to the other party that: (i) such party has the full corporate right, power and authority to enter into this Agreement and to perform that acts required of it hereunder, and (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which such party is otherwise bound.

Warranties. The Services are provided “AS IS” and on an “AS AVAILABLE” basis. We do not warrant that the Services will be provided without interruption or be completely error free. We do warrant that We will use commercially reasonable efforts to ensure that the Services are free of infection from any viruses or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, surreptitiously intercept or expropriate any system, data or personal information.

Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CLOUDABILITY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

Proprietary Rights

Proprietary Rights. Cloudability owns all worldwide right, title and interest in and to the Services including the underlying software platform including all worldwide intellectual property rights therein, that Cloudability uses to provide the Services (“Cloudability IP”). This Agreement does not convey any proprietary interest in or to any Cloudability IP or rights of entitlement to the use thereof except as expressly set forth herein.

Feedback. You may voluntarily provide feedback, comments and suggestions regarding improvements to the Services (“Feedback”). Cloudability will be free to use, disclose, reproduce, license or otherwise distribute and exploit such Feedback as it sees fit, on a royalty-free irrevocable basis, entirely without obligation or restriction of any kind.

Trademarks. The Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

Use of Your Logo and Trademarks by Us. You agree that Cloudability may display Your company name, and logo or trademark on Our websites and in connection with routine marketing of the Services.

Confidentiality

Definition of Confidential Information. Each party understands that it will have access to or be directly or indirectly exposed to certain non-public information relating to the disclosing party’s business that is marked as “confidential” at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure in connection with the use and/or performance of the Services (“Confidential Information”). Confidential Information does not include any information that the receiving party can show: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the disclosing party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the disclosing party.

Protection of Confidential Information. The receiving party agrees: (i) to use reasonable measures and reasonable efforts to provide protection for each other’s Confidential Information, including measures at least as strict as those each party uses to protect its own Confidential Information, and (ii) not to use (except as expressly permitted herein) or disclose to any third person any such Confidential Information.

Compelled Disclosure. Notwithstanding any other provision, the receiving party may disclose Confidential Information it receives if compelled to do so by law, regulatory requirement or legal process. Unless prohibited by law or legal process, the receiving party will use its commercially reasonable efforts to give the disclosing party prior notice of the request for such disclosure and a reasonable period of time to respond to such request.

Anonymized Data. Cloudability may collect aggregate or anonymous usage data with respect to the use of the Services to measure and analyze response rates and performance of the Services. Cloudability will use this usage data and Service Data for internal business purposes only, including improving, testing and providing the Services and may only disclose such usage data or Service Data in anonymous aggregate form (e.g. data aggregated from multiple customers’ use of the Services, but without specifically identifying You or any other customer).

Limitation of Liability

Limitation of Liability. EXCEPT FOR ANY INDEMNITY OBLIGATIONS OR BREACH OF CONFIDENTIALITY OBLIGATIONS ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO OR USE OF THE SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR BREACH OF CONFIDENTIALITY AND INDEMNITY OBLGATIONS ABOVE, EACH PARTY’S LIABILITY FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE SUM OF ALL PAYMENTS YOU HAVE MADE TO CLOUDABILITY UNDER ALL SERVICE ORDERS IN THE LAST TWELVE (12) MONTHS OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER.

Non-Cloudability Content and Services

Links to Third Parties. The Services may contain links to third-party sites or resources. Cloudability provides these links as a convenience and does not endorse the companies or contents of any such sites. Cloudability is not responsible for the content of such sites or resources. If You decide to access any of the third-party web sites linked to the Services, You do this entirely at Your own risk.

Term and Termination

This Agreement commences on Effective Date and continues until all Service Orders hereunder have expired or have been terminated (the “Term”). The term of each Service Order is specified in the applicable Service Order (the “Subscription Term”).

A Subscription Term will automatically renew for a subsequent renewal term of the same length, unless either party notifies the other party of its intent not to renew. In the case of Service Orders where the Subscription Term is greater than sixty (60) days, notice of non-renewal must be given at least sixty (60) days prior to the end of the then-current Subscription Term.

Termination for cause. Either party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach unless the breaching party cures such breach within thirty (30) days of the date of such notice, or (ii) the other party becomes insolvent, enters into receivership, files a petition for bankruptcy, or any other proceeding related to the liquidation or assignment for the benefit of creditors.

Data Portability and Deletion. Upon any termination of Service Order, the Services and/or Your Account (whichever is applicable) will no longer be accessible and all Cloud Service Account Information will be scheduled for deletion as soon as possible, in accordance with applicable laws. Any cancellation request to Us will be handled within thirty (30) days of receipt of such request, and in accordance with this Agreement. Upon any termination, Cloudability will have no obligation to maintain any Cloud Service Account Information, data or any related information that was stored in Our database related to Your use of the Services, delete any Service Data, or forward any information to You (or to any third party).

Refund Upon Termination. If You choose to terminate this Agreement for cause as defined herein, We will refund to You any prepaid fees covering the unused portion of the Monitored Costs Plan Limit for Service Orders with active subscriptions. If this Agreement, or any individual Service Order, is terminated for any other reason, You will pay any and all unpaid fees covering the remainder of the current Subscription Term(s).

In no event will any termination relieve You of any obligation to pay fees owed to Us for the unused portion of the Monitored Costs Plan Limit as of the effective date of termination.

Surviving Provisions. Any termination will not affect Your obligations, licenses to Cloudability under this Agreement or either party’s rights and obligations concerning certain terms (including, without limitation, proprietary rights, confidentiality, indemnification, and limitation of liability), which by their nature are intended to survive such termination.

Notices, Jurisdiction and Miscellaneous

Modification. Cloudability may periodically modify or revise these terms, with notice to you in accordance with the Notices section below or by posting the modified Agreement on Our website. We will specify the effective date of the modifications.

Jurisdiction. This Agreement, and Your relationship with Cloudability, shall be governed by the laws of the State of State of Oregon without regard to its conflict or choice of law provisions. Any dispute with Cloudability, or its officers, directors, employees, agents or affiliates, arising under or in relation to this Agreement shall be resolved exclusively through the state and federal courts in Multnomah County, Oregon.

Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between Us regarding its subject matter and supersedes all prior or contemporaneous Agreements (other than Service Orders) or understandings, written or oral, relating to its subject matter.

Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except in connection with a merger, acquisition, or sale of all or substantially all of such party’s assets.

Relationship of the Parties. Nothing expressed by the acceptance of this Agreement is intended imply or create a partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship.

Severability. If any portion of this Agreement is found to be void or unenforceable, the remaining provisions will remain in full force and effect.

Order of Precedence. To the extent that conflicts occur between terms contained in this Agreement and those defined in a Service Order or a Supplemental Service Agreement, the order of precedence shall be: Service Order, then Supplemental Service Agreement, then Master Service Agreement.

Notices. Other than for termination, an indemnifiable claim, or as expressly stated otherwise herein, all notices may be made via email. Notices shall be deemed made upon: a) personal delivery, b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid, or c) the first business day after sending by email. All written notices not sent via email should be addressed to:

Cloudability, Inc.
Attn: Legal
334 NW 11th Avenue
Portland, OR 97201
United States

All Customer notices will be sent to via email to the administrative users of Your Account.

Last Updated: January 9, 2019