Cloudhouse Agreement

 

CLOUDHOUSE TECHNOLOGIES LTD.

END-USER LICENSE AGREEMENT

 

 

This End-User License and Support Agreement ("EULA" or “Agreement”), made and entered into as of the Effective Date, is a legal agreement between you, either an individual or an entity (“Licensee”) and Cloudhouse Technologies Ltd., with its principal place of business at 56 Wood Lane, London W12 7SB (“Cloudhouse”) and sets forth the terms and conditions under which Cloudhouse licenses certain of its software products and provides related support to Licensee.

 

UNLESS THERE IS A SEPARATE LICENSE AGREEMENT BETWEEN lICENSEE AND CLOUDHOUSE (A) BY EXPRESSLY ACCEPTING THESE TERMS IN A WRITTEN AGREEMENT OR BY DOWNLOADING, INSTALLING, ACTIVATING AND/OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES THAT IT HAS READ AND WILL COMPLY WITH AND IS BOUND BY THE TERMS AND CONDITIONS OF THIS EULA AND ALL APPLICABLE LAWS AND REGULATIONS; OR (B) IF LICENSEE DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, THEN LICENSEE MAY NOT DOWNLOAD, INSTALL, ACTIVATE OR OTHERWISE USE ANY OF THE SOFTWARE. IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO DO SO.

 

DEFINITIONS

1.1 Confidential Information” means all non-public information provided by or relating to a Discloser or its affiliates and includes, without limitation, source and object code, customer lists, products, product roadmaps, financial information, business information and marketing strategies disclosed in written or other tangible form (including on magnetic media) or by electronic, oral, visual or other means.

1.2 Delivery Date” means the date the Licensee is allowed to download the Licensed Software for electronic delivery.

1.3 Discloser” means a party, including its Representatives, that discloses Confidential Information to the other party.

1.4 Documentation” means explanatory and informational materials concerning the Licensed Software, in printed or electronic format. Documentation does not include software source or object code.

1.5 Effective Date” means the Delivery Date or the date of the Purchase Order for the Licensed Software, whichever date is earlier.

1.6 End-User” means the employees or independent contractors of Licensee who are authorized by Licensee to access or use the Licensed Software.

1.7 Error” means any material error or defect in the Licensed Software that causes the Licensed Software not to substantially conform to the Documentation.

1.8 Intellectual Property” means Cloudhouse’s intellectual property including without limitation all: (a) inventions (whether patentable or unpatentable and whether or not reduced to practice) and all improvements thereto; (b) copyrightable works; (c) trade secrets; (d) source and object code, (e) know-how and feedback concerning the Licensed Software and (f) copies and tangible embodiments thereof (in whatever form or medium), as well as any and all rights to any modifications or enhancements to the foregoing made by or on behalf of Licensee.

1.9 Intellectual Property Rights” means all patents (including reissues, divisions, continuations and extensions thereof), utility models, and registered and unregistered designs including mask works, copyrights and any other form of protection afforded by law to inventions, models, designs or technical information, trademarks and applications.

1.10 License Fees” means the Licensed Software fees for the Licensed Software as listed in a Purchase Order.

1.11 Licensed Software” means Cloudhouse’s proprietary software products in object code form made generally available for resale or license, including Documentation and Updates.

1.12 Maintenance and Support Services” means support and maintenance services for the Licensed Software as set forth in a Service Level Agreement or SLA.

1.13 Partner” means an authorized Cloudhouse Licensed Software reseller or distributor.

1.14 Professional Services Agreement” or “PSA” means the then-current Cloudhouse agreement for installation or other professional services. An example of the PSA in place as of the date of this Agreement is shown in Appendix 2.

1.15 Purchase Order” means a written document, executed by the parties or by Licensee and Partner which identifies the Licensed Software including Quantity, License Fees, payment terms and other terms and conditions.

1.16 Quantity” means the number of copies of the Licensed Software licensed to Licensee as listed in each Purchase Order.

1.17 Recipient” means a party, including its Representatives, that receives Confidential Information from the other party.

1.18 Representatives” means the employees, affiliates, affiliates’ employees, directors, officers, attorneys, accountants, financial advisors and agents of a party.

1.19 Support Fees” means the fees charged by Cloudhouse to Licensee for Maintenance and Support Services, which are bundled within the Licenced Software subscription.

1.20 Support Period” means any twelve (12) month period as measured from the Effective Date, or the anniversary of the Effective Date, of this Agreement during which Licensee is entitled to receive Maintenance and Support Services from Cloudhouse.

1.21 Service Level Agreement” or “SLA” means the then-current Cloudhouse agreement for Maintenance and Support Services (as changed from time-to-time) for the Licensed Software. An example of the SLA in place as of the date of this Agreement is shown in Appendix 1.

1.22 Updates” means maintenance releases that are made generally available to licensees who are eligible to receive Maintenance and Support Services.

LICENSE GRANT

2.1 License Grant. Subject to the terms of this EULA, Cloudhouse hereby grants to Licensee, a non-exclusive, non-transferable, non-assignable, world-wide, fee-bearing term-limited license without rights to sublicense to install, display and use the Licensed Software solely for Licensee’s internal purposes and only on as many computers, devices and/or in such configurations as expressly permitted by Cloudhouse (e.g. as set forth in the applicable Cloudhouse Purchase Order or invoice) for the Quantity for which Licensee has paid License Fees or on one computer device if no other entitlement is specified and for the term specified in a Purchase Order.

2.2 Restrictions. Licensee shall not and shall not permit any third party to: (a) translate, disassemble, reverse engineer, recompile, decompile, update, modify, merge, prepare derivative works, adapt, translate or copy any portion of the Licensed Software except as authorized herein or as otherwise expressly permitted by applicable law; (b) use the Licensed Software in violation of applicable local, state, national and international laws and regulations; (c) use the Licensed Software in excess of the number of licenses purchased from or authorized by Cloudhouse; (d) use the Licensed Software on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet "links" to the Software or "frame" or "mirror" the Software on any other server or wireless or Internet-based device; (e) sell, lease, license, sublicense, assign, distribute or otherwise transfer or encumber in whole or in part the Licensed Software; (f) alter, change, or remove any titles, trademarks, trade names, copyright notices, legends or other proprietary markings placed on the Licensed Software; (g) use the Licensed Software to create a competitive offering; (h) share or publish the results of any benchmarking of the Licensed Software without Cloudhouse’s prior written consent; or (i) provide, make available to, or permit use of the Licensed Software in whole or in part by, any third party, including contractors, without Cloudhouse's prior written consent, unless such use by the third party is solely on Licensee’s behalf, is strictly in compliance with the terms and conditions of this EULA, and Licensee is liable for any breach of this EULA by such third party.

2.3 Operating Environment. Licensee shall be responsible for providing and maintaining all necessary hardware and the proper environment to operate the Licensed Software as specified by the Documentation or as otherwise specified in writing by Cloudhouse including, but not limited to, acquiring and maintaining the necessary system configuration (hardware and software) and any necessary third party software and licenses needed to utilize the various capabilities of the Licensed Software. Cloudhouse is not responsible or liable for any errors or defects in such hardware or third party software.

RECORDS AND AUDIT

3.1 Records and Reports. Licensee shall maintain clear and complete records during the term of this Agreement and for a period of at least three (3) years following the termination of this Agreement showing (a) the disposition of each copy of the Licensed Software made or used by Licensee; (b) the installed Quantity; (c) the number and description of the computer(s) on which the Licensed Software is installed; and (d) the usage of the Licensed Software by individual users. Within ten (10) business days of the end of the then-current calendar month, Licensee shall submit a report in a format specified by Cloudhouse, showing the information described in items (a), (b), (c), and (d) of this Section 3.1 (Records and Reports). On Cloudhouse’s reasonable request, but not more than once annually, Licensee will furnish Cloudhouse with a signed statement certifying compliance with the provisions of this Agreement.

3.2 Audit. During the term of this Agreement and for a period of two (2) years after the termination of this Agreement, Licensee will maintain accurate records as to its use of the Licensed Software. Cloudhouse shall have the right, at its own expense and upon reasonable written notice to Licensee, to inspect such records and computing devices to verify compliance with this Agreement provided that Licensee may conduct not more than one (1) such audit during any twelve (12) month period. Licensee shall promptly pay under payments revealed by any such audit. Licensee shall pay for the cost to conduct the audit if any deficiency exceeds five percent (5%) of the License Fees previously paid. Such audit will be conducted during Licensee’s normal business hours and in such manner as not to unreasonably interfere with Licensee’s normal business activities.

FEES AND PAYMENT

4.1 Fees. Licensee shall pay the License Fees and Support Fees set forth in the relevant Purchase Order.

4.2 Payment. Fees due from Licensee may not be withheld or offset for any reason and all invoices shall be due and payable in full within thirty (30) days from the date of such invoice. Partial payments shall not be construed as acceptance of payment in full. All fees are payable in the currency set forth on the Purchase Order.

4.3 Taxes. Fees are exclusive of all taxes, including without limitation, sales, use, value-added or other taxes or levies on transactions made or services provided under this Agreement. If a certificate of exemption or similar document is required to exempt Licensee from sales or use tax liability, Licensee shall promptly obtain and furnish evidence of such exemption.

MAINTENANCE AND SUPPORT SERVICES AND other professional services

5.1 Maintenance and Support Services. While the term of the license for Licensed Software has not expired and any applicable Support Fees are current, Cloudhouse shall provide the Maintenance Support Services for the Licensed Software as described in the then-current SLA.

5.2 Other Professional Services. Professional services, other than Maintenance and Support Services including, but not limited to training, consultation, customization and installation are not included under this Agreement.

Intellectual property

6.1 Ownership. Cloudhouse retains exclusive ownership and all right, title, and interest in and to the Licensed Software and the Intellectual Property and reserves all rights not expressly granted hereunder. Licensee agrees that no implied licenses exist and that it shall not obtain any right in or to any portion of the Intellectual Property or any modifications.

6.2 Maintenance, Support and Installation. All materials and intellectual property created or generated by Cloudhouse in connection with the performance hereunder, including any maintenance, support and installation information provided to Cloudhouse by Licensee and related to the Licensed Software, including reports, methods, processes, notes, designs, code, documentation, memoranda, and other data or materials (excluding any reports, data or other information owned or created by Licensee), and all right, title and interest in the foregoing, are and shall be owned by Cloudhouse. Licensee hereby assigns and agrees to assign to Cloudhouse all right, title and interest in and to any and all derivative works of the Licensed Software and other materials created or generated in connection with its performance of its obligations under this Agreement.

INDEMNIfication

7.1 Intellectual Property Infringement. Cloudhouse shall indemnify, defend and hold Licensee and its Representatives harmless from any third party claim and resulting losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys' fees) arising out of or in connection with any alleged or actual infringement by the Licensed Software of the Intellectual Property Rights enforceable under the laws of the United States or England. Cloudhouse’s indemnification obligations hereunder are expressly conditioned on Licensee (a) providing prompt notice of the claim to Cloudhouse; (b) giving Cloudhouse sole control of the defense and settlement of the claim; (c) providing to Cloudhouse all available information, assistance, and authority to defend; and (d) not having compromised or settled such claim in any way nor having made any admissions with respect to such claim without Cloudhouse’s prior written consent.

7.2 Remedies. Should the Licensed Software become or in Cloudhouse’s reasonable opinion, be likely to become, the subject of a claim of infringement, Cloudhouse may, at Cloudhouse’s option, (a) procure for Licensee, at no cost to Licensee, the right to continue to use the Licensed Software, (b) replace or modify the Licensed Software, at no cost to Licensee, to make such Licensed Software non-infringing, provided that the similar function is performed by the replacement or modified Licensed Software as originally provided hereunder, or (c) if the right to continue to use the Licensed Software cannot reasonably be procured or the Licensed Software cannot reasonably be replaced or modified, Cloudhouse may terminate this Agreement.

7.3 Exclusions. Notwithstanding the foregoing, Cloudhouse shall have no liability for any claim resulting or arising from (a) any use of the Licensed Software not in accordance with this Agreement if such claim would not have occurred absent such use; (b) any use of any release of the Licensed Software other than the most current release made available to Licensee, if the most current release was furnished to Licensee specifically to avoid such claim and such claim would have been avoided by use of the most current release; (c) any modification of the Licensed Software made by any person other than Cloudhouse (other than at Cloudhouse’s direction), if such claim would not have occurred absent such modification; or (d) a use for which the Licensed Software was not designed and such claim would not have been made absent such non-conforming use.

7.4 No Additional Liability. This Section 7 (Indemnification) states the Cloudhouse’s exclusive liability for indemnifying Licensee for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate Cloudhouse to provide any greater indemnity to Licensee.

Confidential information

8.1 Confidentiality. Recipient must use the same degree of care in protecting Confidential Information as it uses to protect its own proprietary and confidential materials, but in no event less than a reasonable standard of care. If a party becomes aware of any misappropriation or misuse of Confidential Information, that party must immediately advise the other in writing. If Recipient is required to disclose Confidential Information to any court, government agency or party pursuant to a written court order, subpoena, regulation or process of law, Recipient must first promptly notify Discloser, and Recipient at Discloser’s expense will provide reasonable assistance to discloser in seeking a protective order or other remedy from the proper authority. Any such required disclosure does not relieve recipient of its confidentiality obligations. All Confidential Information is and shall remain the property of Discloser.

8.2 Period of Protection. Recipient agrees that upon the Effective Date of this Agreement and for a period of five (5) years from the date of disclosure or termination of this Agreement, whichever is later (and in perpetuity with respect to source code and trade secrets), it will hold the Confidential Information disclosed by Discloser in confidence.

8.3 Restrictions on Disclosure. Licensee and its employees, agents and contractors shall not disseminate, disclose or otherwise provide or make available the Confidential Information, or any portion or copy thereof, to any third party, or use the Confidential Information or portion thereof for any purpose other than as expressly permitted by this Agreement. Disclosure of the Confidential Information will be restricted to the Recipient’s employees, contractors, or agents on a “need to know” basis and who are bound by confidentiality obligations no less stringent than these prior to any disclosure. All Confidential Information that is disclosed in a tangible form by Discloser to Recipient under this Agreement (including, without limitation, documents, writings, designs, drawings, specifications and information incorporated in computer software or held in electronic storage media) shall be returned to Discloser or destroyed promptly upon the termination of this Agreement or upon written request by Discloser, and shall not thereafter be retained in any form by Recipient, except as otherwise provided by this Agreement. Upon request of the Discloser, a duly authorized officer of the Recipient will certify such return or destruction.

8.4 Exclusions. Confidential Information does not include information which: (a) is already known to the Recipient at the time of disclosure; (b) is or becomes publicly known through no wrongful act or failure of the Recipient; (c) is independently developed without use or benefit of the other’s Confidential Information; or (d) is received from a third party that is not under and does not thereby breach an obligation of confidentiality.

limited WARRANTY AND LIMITATION OF liability

9.1 General Warranty. Cloudhouse warrants that it owns all right, title, and interest in and to the Licensed Software and that it has full power to enter into and perform this Agreement.

9.2 Limited Warranty. For ninety (90) days from the Delivery Date, Cloudhouse warrants that the Licensed Software shall substantially conform to the then-current user Documentation, provided that: (a) the Licensed Software is implemented and operated in accordance with the Documentation and any other written instructions supplied by Cloudhouse; (b) Licensee notifies Cloudhouse in writing of any Error within ten (10) days of the appearance thereof and includes sufficient information as may be necessary to demonstrate the Error; (c) Licensee has promptly and properly installed all Updates made available by Cloudhouse to Licensee; and (d) any defect or nonconformity is not caused in whole or in part by any defect in the hardware, operating system or any other third party software used in conjunction with the Licensed Software. After the limited warranty period ends, Errors will be corrected in accordance with the terms of the SLA.

9.3 Sole Remedy. Cloudhouse’s sole and exclusive responsibility and Licensee’s sole remedy under the Limited Warranty set forth in Section 9.2 shall be for Cloudhouse to correct or replace, at no additional charge to Licensee any such Error(s) and to supply Licensee with a corrected version of the Licensed Software as soon as practicable after Licensee has notified Cloudhouse of such Errors. Cloudhouse’s warranty obligations shall be void if the Licensed Software is modified by or through Licensee without the express prior written consent of Cloudhouse.

9.4 Disclaimer of Warranty and Limitation of Liability. EXCEPT FOR THE PRECEDING LIMITED WARRANTY, CLOUDHOUSE MAKES, AND LICENSEE RECEIVES, NO OTHER WARRANTIES RELATED TO THE SOFTWARE WHETHER EXPRESS, IMPLIED OR STATUTORY, AND CLOUDHOUSE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Cloudhouse does not warrant that the operation of the Licensed Software will be uninterrupted or error free.

CLOUDHOUSE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS OR NETWORKS OR THE RECOVERY OF SUCH DATA, SYSTEMS OR NETWORKS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL OR REPUTATION UNDER ANY PART OF THIS AGREEMENT EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, CLOUDHOUSE’S CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CAUSE OF ACTION AROSE.

THE LIMITATION OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY TO CLAIMS FOR PERSONAL OR BODILY INJURY, INCLUDING DEATH CAUSED BY THE NEGLIGENT, WILFUL OR INTENTIONAL ACTS OF A PARTY OR ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS. IF THE APPLICABLE LAW OF the JURISDICTION PROHIBITS ANY LIMITATION IN THIS SECTION, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED AND the remainder of this section shall continue in full force and effect.

9.5 Warranty by Licensee. Licensee warrants and represents that it has full power to enter into and perform this Agreement and that the person agreeing to or executing this Agreement, either electronically or on paper, on its behalf is duly authorized to do so.

TERM AND TERMINATION

10.1 Term. Unless earlier terminated in accordance with the provisions of Section 10.2, this Agreement shall commence on the Effective Date and shall remain in effect for one (1) year from the Effective Date after which it shall renew automatically, along with the term-limited license, for additional one year terms, unless either party gives notice at least thirty (30) days prior to the renewal date of its intent not to renew. Pricing during any renewal term shall be the same as the prior term unless Cloudhouse has given Licensee notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal.

10.2 Termination for Cause. Either party may, at its option and upon written notice to the other party, terminate this Agreement if a material breach of this Agreement by the other party is not remedied within thirty (30) days after the breaching party’s receipt of written notice of the breach.

10.3 Effect of Termination. Immediately upon termination of this Agreement under Section 10.2 for breach by Licensee or upon expiration of the term license: (a) all rights and licenses and support under this Agreement shall terminate; and (b) Licensee shall, at Cloudhouse's exclusive option, return or destroy: (i) all Licensed Software Documentation and provided under such terminated licenses and all copies thereof in any form (including translations and compilations), whether partial or complete, and whether or not modified or merged into other software made by Licensee, and (ii) all Confidential Information of Cloudhouse and copies thereof and all materials reflecting or referencing such Confidential Information, in whole or in part, in any form. If requested by Cloudhouse, Licensee shall certify in writing Licensee's compliance with this section as to the return or destruction of such materials. Cloudhouse shall have the right to use reasonable means to verify Licensee’s actual compliance with such certification, including without limitation, reasonable access to Licensee's facilities to inspect Licensee's equipment, records and employees. Licensee shall not be entitled to a refund of any fees paid by Licensee to Cloudhouse under this Agreement if the Agreement or the particular license is terminated by Cloudhouse as a result of Licensee’s breach.

10.4 Survival after Termination. The following shall survive expiration or termination of this Agreement: all confidentiality restrictions, limitation of liability, indemnities, warranties, disclaimer of warranties and general provisions and all other provisions which by their nature should survive the termination or expiration of the Agreement.

GENERAL PROVISIONS

11.1 Governing Law/Venue. This Agreement shall be exclusively governed and construed in accordance with the laws of England. The United Nations Convention on Contracts for the International Sale of Goods (UNCISG) is specifically disclaimed in its entirety. Each party irrevocably submits to the exclusive jurisdiction of the courts of England over any claim, dispute or difference arising under or in connection with this Agreement.

11.2 Time Limit for Claims. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen.

11.3 Assignment. Licensee shall not assign or otherwise transfer this Agreement or any rights hereunder to any individual or entity (including, without limitation, a government body, division, agency or administration) without the prior written consent of Cloudhouse provided, however, that Licensee may assign all of its rights under this Agreement to: (a) a subsidiary of Licensee, (b) a purchaser of all or substantially all of the stock or assets of Licensee, or (c) a third party participating in a merger or other corporate reorganization in which Licensee is a constituent corporation. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any purported attempt to assign or transfer this Agreement in violation of this provision will be deemed void.

11.4 No Third Party Beneficiaries / Independent Contractors. This Agreement is not intended nor shall be construed to confer upon or give to any person or entity other than Licensee and Cloudhouse any rights, remedies or other benefits under or by reason of this Agreement. The relationship of the parties is that of independent contractors. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship between the parties.

11.5 Export. Licensee shall comply with all applicable governmental laws, statutes, ordinances, administrative orders, rules and regulations including, without limitation, those related to the export of technical materials.

11.6 Controlled Data. The parties shall use reasonable commercial efforts to carry out processing of any personal data in compliance with any applicable data protection legislation in force from time to time, including the Safe Harbor Principles published by the U.S. Department of Commerce.

11.7 Publicity. Neither party shall disclose the terms of this Agreement without prior written consent from the other. Licensee, however, agrees that its name and any logo may be included by Cloudhouse in any published list of Cloudhouse licensees on the Cloudhouse website and in other marketing materials.

11.8 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, acts of terrorists, or any other cause which is beyond the reasonable control of such party.

11.9 Injunctive Relief. The parties agree that a breach of Section 2 (License Grant), Section 6 (Intellectual Property) or Section 8 (Confidential Information) would result in irreparable and continuing damage for which there will be no adequate remedy at law, and Cloudhouse shall be entitled to injunctive relief without the need for posting bond and/or a decree for specific performance, and such other relief as may be proper.

11.10 Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, facsimile transmission, overnight delivery service or by registered mail, return receipt requested, and shall be deemed given upon personal delivery, the next business day for overnight delivery service, five (5) days after deposit in the mail, or upon acknowledgment of receipt of facsimile transmission. Notices shall be sent to the signatory of this Agreement at the address set forth in the opening paragraph of this Agreement or such other address as either party may specify in writing.

11.11 No Waiver; Severability. A party’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by a court of competent jurisdiction, such unenforceable or invalid provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.

11.12 Modification. This Agreement can be modified only by a written amendment signed by persons duly authorized to sign agreements on behalf of Licensee and Cloudhouse, and variance from the terms and conditions of this Agreement in any order or written notification from either party shall be void and of no effect.

11.13 Section Headings. The section headings in the Agreement are solely used for the convenience of the parties and have no legal or contractual effect.

11.14 Entire Agreement. This Agreement together with the then-current SLA and if applicable, the PSA, incorporated herein and made a part hereof for all purposes and any Purchase Orders constitute the entire agreement between the parties with respect to the subject matter thereof and supersede all prior or contemporaneous agreements, understandings, negotiations and communications, oral or written, between the parties regarding the subject matter of this Agreement. In the event of a conflict between the terms and conditions of the EULA, the SLA or a signed Purchase Order, the controlling order of the documents shall be the EULA, the SLA and then the Purchase Order. In the event of a conflict between the terms and conditions of the EULA, the PSA or a signed Purchase Order, the controlling order of the documents shall be the EULA, the PSA and then the Purchase Order.



CLOUDHOUSE SERVICE LEVEL AGREEMENT

Appendix 1

This Cloudhouse Service Level Agreement ("SLA") (the “Agreement) is subject to the terms and conditions of the Agreement and the EULA. The SLA sets forth the terms and conditions under which Cloudhouse provides support and maintenance services for the Licensed Software to Licensee. Terms not otherwise defined in this Agreement or in the EULA shall have the same meaning as in the Agreement or EULA.

1.       DEFINITIONS

1.1 Business Day” means any day (other than Saturday or Sunday) excluding holidays as set forth on the Cloudhouse Extranet.

1.2 Defect Repair” means a correction of an Error.

1.3 Designated Support Contacts” means an individual that Licensee has registered with Cloudhouse’s Online Support System as a contact person.

1.4 Extranet” means Cloudhouse’s private network that uses the Internet to securely share support, documentation and other business information.

1.5 On-line Support System” means Cloudhouse’s customer support website through which Licensee will submit Problem or Error reports to Cloudhouse.

1.6 “Problem” means any actual or perceived failure or function impairment, including but not limited to an Error, which causes reduced functionality to the Licensed Software.

1.7 Resolution Goal” means the full assessment of the Error resolution of reported Problems and set of actions to provide resolution of the problem by means of workaround or Defect Repair.

1.8 Response Time” means acknowledgement, categorization and the assessment of the Error difficulty of reported Problems.

1.9 Updates” mean maintenance (minor) releases containing corrections, bug fixes and minor enhancements to existing feature set of the Licensed Software at the time of the Agreement that are made generally available to licensees who are eligible to receive Maintenance and Support Services.

1.10 Upgrades” means new functionality (major) releases containing new features and major enhancement of the Licensed Software. Upgrades are subject to separate software licenses and fees.

1.11 "Workaround" means a feasible change in procedures whereby an End-User can avoid any harmful effects of a Problem.

2.       maintenance and support Services

2.1 On-line Technical Assistance. Cloudhouse will provide the information needed to access Cloudhouse’s customer support web site and to submit support requests via e-mail using an On-line Support System to Licensee’s Designated Support Contacts. Cloudhouse customer support to assist the Designated Support Contacts is available via submission via an On-line Support System continuously 24 hours per day, 365 days per year.

2.2 Licensed Software Problem Reporting and Customer Obligations. Licensee agrees to submit reports concerning suspected Errors through its Designated Support Contacts. In order to diagnose Problems most effectively, the Designated Support Contacts will confirm that all supporting systems (internal network, Internet, server hardware, and the like) are functioning properly before contacting Cloudhouse customer support. The Designated Support Contacts will use commercially reasonable efforts to provide Cloudhouse with the following information: Cloudhouse Licensed Software product and version, date and time of the incident and system hardware and third party software versions, configurations and log files. If the servers were previously working normally, the Designated Support Contacts should also advise what system changes, if any, have been applied to the system prior to when the Problem incident was observed. In addition, Cloudhouse customer support will need a clear description of the Problem or question and any error codes or messages. If necessary, the Designated Support Contacts will be responsible for providing Cloudhouse with data or other information concerning Licensee’s operations that Cloudhouse reasonably requests in order to reproduce operating conditions similar to those present when the reported Problem or Error was discovered or to otherwise provide the Maintenance and Support Services. Cloudhouse customer support may redefine problem reporting procedures as needed and post such updated procedures on its customer support web site. In order for Cloudhouse to be able to achieve the Response Goals set forth in Table 1, Licensee will make off-site access via a remote Internet connection available to Cloudhouse so that Cloudhouse may provide support and diagnose Problems and Errors.

2.3 Defect Repairs. Cloudhouse will investigate each suspected Error reported by the Designated Support Contacts and determine whether in Cloudhouse’s judgment the reported problem is, in fact, an Error, and whether such Error is in the Licensed Software or in the Documentation. If Cloudhouse determines that there is an Error in the Licensed Software or in the Documentation, Cloudhouse will use commercially reasonable efforts to provide an avoidance procedure, a Workaround, or a Defect Repair in accordance with the response guidelines set forth in Section 3.6 below. In the event that a Severity 1 Error is not corrected through off-site support or through off-site access via a remote connection to Licensee’s system, Cloudhouse will consider on-site service if deemed appropriate by Cloudhouse. Cloudhouse will have discretion as to the method and manner of maintenance and support efforts.

2.4 Licensed Software Updates. As permanent solutions are developed for known Errors in the Licensed Software, they will be incorporated from time to time in planned Updates. Cloudhouse will make such Updates available to Licensee as they are released. Cloudhouse will also provide instructions and/or documentation that Cloudhouse considers reasonably necessary to assist in the installation of the Update and a smooth transition to use the Update. In the event Cloudhouse, in its discretion, revises the appropriate Documentation, Cloudhouse will make such Update available to Licensee at no additional charge in electronic form via Cloudhouse’s on-line knowledge base as it becomes available. Cloudhouse will provide on-line access to the on-line knowledge base to Designated Support Contacts throughout all Support Periods.

3.       Conditions and Limitations of Services

3.1 Problems Caused By Third Party Products or Errors in Use of the Licensed Software. Cloudhouse will have no obligations or responsibilities of any kind hereunder with respect to problems caused in the use or functioning of the Licensed Software by any hardware or software product (including but not limited to operating systems, networks, and third party software not provided to Licensee by Cloudhouse) other than the Licensed Software or by any Error in the use of the Licensed Software inconsistent with the Documentation. If Maintenance and Support Services hereunder are rendered for any Problem caused by any of the foregoing or for troubleshooting with respect to any of the foregoing, or if Cloudhouse’s Support Service efforts are increased as a result, Cloudhouse reserves the right to impose charges at its then standard commercial time and materials rates for all such services, including reasonable travel and per diem expenses. A Cloudhouse customer service engineer will notify a Designated Support Contact as soon as the billable status of the call is determined. Such Designated Support Contact may then terminate the call at that time without charge.

3.2 Maintenance of Current Releases of the Licensed Software. Licensee should promptly install Updates to maintain the Licensed Software in the most current revision level. Maintenance and Support Services will be provided only for the most current released version. Cloudhouse has right to announce the end of availability of the Licensed Product with six months’ notice. If Cloudhouse announces the end of availability of a product and end of the six months’ notice falls before the end of this Agreement, Cloudhouse may decide to support the Product beyond the end of availability date until the end of this Agreement or Cloudhouse may provide a free Upgrade to Licensee. Cloudhouse will have no obligation to support Licensee where Licensee is using a version of the Licensed Software that is not a Supported Release any longer.

3.3 Access to Licensee’s Facilities. Licensee may need to supply Cloudhouse with access to and use of all information and facilities reasonably necessary for Cloudhouse to render these services, subject to any security requirements or other company procedures of Licensee. Cloudhouse may also reasonably request the use of a specific remote access software package solely for the purpose of diagnostic and Maintenance and Support Services. If Cloudhouse is not permitted or is unable to access the Licensed Software, it may result in slower resolution times or inhibit Cloudhouse’s ability to resolve a problem and Licensee will incur additional costs if Cloudhouse should have to resolve the problem onsite at Licensee’s facilities.

3.4 Backup Procedures. Licensee is responsible for maintaining procedures external to the Licensed Software for reconstruction of lost or altered files, data, or programs to the extent it deems necessary, and for actually reconstructing any lost or altered files, data, or programs. Cloudhouse will not be responsible for any lost or altered files, data or programs.

3.5 Technical Support Level. "Level" means a certain type of service. Definitions are as follows:

Level 1. Problem verification and determination. First call support and specialist level technical support, as required. Technical support staff (i) responds to technical inquiries regarding the Licensed Software, installations, configurations, and (ii) provides Problem diagnostics services for identifying Problems and generic application faults, analysis, and where possible, Problem resolution. If specialist level technical support is required, then Licensee’s technical support staff (i) performs Problem isolation, replication and interoperability testing, (ii) provides remote diagnostics services, and (iii) implements a resolution for a Problem that is not the result of an Error.

Level 2. Problem resolution. Senior level technical support. Escalation resource to Level 2. Technical support staff (i) performs on-site troubleshooting at Licensee site, if required, (ii) isolates a Problem/Error and (iii) implements a resolution, including development of a Workaround, which restores operations. In the case of an Error, the staff will attempt to identify the source of the Error, create a reproducible test, and document the details of the Error for escalation.

Level 3. Backup engineering and technical support. Cloudhouse Engineering Staff isolates a Problem or Error and implements a resolution, including, but not limited to, Error correction.

3.6 Severity Levels and Service Levels. "Severity" refers to the classification of a certain type of problem as set forth in Table 1. Cloudhouse offers two different service levels for its support program: Enterprise and Standard Support with response times as set forth in Table 1.

3.7 Response Guidelines. Table 1 below outlines Cloudhouse’s customer support response and resolution goals by Severity levels and the service level for the support program purchased by Licensee. The Problem’s Severity along with the support level will determine the speed of Cloudhouse’s response. The initial response is an e-mail or telephone acknowledgement by Cloudhouse of the Problem reported by Licensee’s Designated Support Contacts. For the purposes of this SLA, Problems are assigned a Severity classification at the time of Licensee’s Problem report to Cloudhouse. The Severity level classification of a Problem may change based upon new information.


 

 

Severity

Problem  Severity Level Description

Standard Service Level

Response Times

Resolution Goal

 

Severity 1 (S1)
Critical Impact (Emergency Support)

Problems that critically interrupt or prevent the customer from performing regular business operations in which the Cloudhouse-deployed application is down. Total loss of service.

1 hour

Immediately assist Licensee to get the Cloudhouse-deployed application operational. Problem fixes will be developed and made available on a priority basis. An acceptable workaround and/or a mutually agreed upon action plan will be provided no later than three business days after Cloudhouse customer support reproduces the problem.

 

Severity 2 (S2)
Serious Impact

Major product issues that do not severely impede customer operations and the Cloudhouse-deployed application is functioning however Cloudhouse is not replicating. Partial loss of service.

1 day

Problem fixes will be developed and made available on a priority basis. An acceptable workaround and/or a mutually agreed upon action plan will be provided no later than ten business days after Cloudhouse customer support reproduces the problem.

Severity 3 (S3)
Moderate Impact

An unexpected operation has occurred but the Cloudhouse- deployed application and Cloudhouse are running with non-critical issues

3 days

Problem fixes are candidates for a next scheduled minor product release.  An acceptable workaround and/or a mutually agreed upon action plan will be provided no later than one month after Cloudhouse customer support reproduces the problem.

Severity 4 (S4)
Low Impact

Request for enhancement or minor issue not related to product or Cloudhouse-deployed application functionality, such as documentation or product enhancement requests

5 days

Problem fixes are candidates for a scheduled minor product release.  An acceptable workaround and/or a mutually agreed upon action plan will be provided no later than three months after Cloudhouse customer support reproduces the problem.

 

TABLE 1: SEVERITY LEVELS, RESPONSE TIMES AND RESOLUTION GOALS


 

4.       MISCELLANEOUS

4.1 Termination. Cloudhouse may terminate the SLA in accordance with the terms and conditions of the Master Agreement, including but not limited to, breach of the Agreement by Licensee.


 

Appendix 2

Cloudhouse Inc. Professional Services Agreement (“PSA”)


 

This Professional Services Agreement (the “PSA”) made and entered into as of the Effective Date of the End-User License Agreement between the parties, is a legal agreement between Licensee (or “Customer”) and Cloudhouse and is an Appendix to the Cloudhouse End-User License Agreement (“EULA”) and sets forth the terms and conditions under which Cloudhouse will provide professional services to the Customer. This PSA is subject to the terms and conditions of the EULA between the parties. The terms in this PSA shall have the same meaning as in the EULA and as set forth herein.

 

1.                   Scope of Services

1.1 Statement of Work (“SOW”). A SOW, mutually agreed by the parties, will be prepared by Cloudhouse setting forth the services to be rendered by Cloudhouse under this PSA (the “Services”).

1.2 Cloudhouse Personnel. Cloudhouse shall provide Customer with personnel possessing the necessary technical qualifications to perform the Services (the “Personnel”). All Services shall be performed by Personnel at either Cloudhouse’s facilities or the Customer’s place of business. Cloudhouse shall be responsible, with input from Customer, for the supervision of the Personnel during their performance of Services.

2.                   Fees, Invoices AND PAYMENT TERMS

2.1 Fees. The fees charged for Services under this PSA will be Cloudhouse’s then current charges for such services or as quoted by Cloudhouse. If the services are being performed on a time and materials basis, any estimates provided by Cloudhouse are for planning purposes only unless otherwise set forth in a SOW. Any required deposits are non-refundable.

2.2 Other Fee Terms. If Customer cancels or postpones the Services less than five (5) business days prior to the date the Services are scheduled to be performed or if Customer fails to comply with its obligations as set forth in the SOW at least five (5) business days prior to the date the Services are scheduled to be performed, Customer shall pay Cloudhouse for any preparation Services already performed but not paid by Customer, pro-rated as appropriate for any fixed-fee SOW, and the cost of the actual and reasonable out-of-pocket expenses incurred by Cloudhouse. If Customer’s equipment, data or information is not fully operational at the time of the Services such that Cloudhouse cannot effectively or efficiently perform the Services, Customer shall pay Cloudhouse for any Services performed or attempted to be performed plus the cost of the actual and reasonable out of pocket expenses incurred by Cloudhouse.

3.                   third party products

 

Third Party Products” means any hardware or software other than Cloudhouse’s standard products. Cloudhouse is not responsible for the specifications of Third Party Products selected by Customer, including revisions or engineering changes. Some manufacturers’ warranties or service contract terms and conditions may become void if Cloudhouse or anyone else, other than the manufacturer or its authorized representative, works on the hardware or software. CLOUDHOUSE DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY PRODUCT WARRANTIES OR FOR ANY EFFECT THAT THE CLOUDHOUSE SERVICES MAY HAVE ON THOSE WARRANTIES. Except as agreed to in writing between Customer and Cloudhouse, Third Party Services shall be exclusively subject to terms and conditions between the third party and Customer. For software provided by Customer, Customer authorizes Cloudhouse (or otherwise obtains the rights for Cloudhouse) to copy, install and modify, if necessary (and as required by the SOW), all software to be used in the Services. Customer warrants to Cloudhouse that it has obtained any licenses, consents, regulatory certifications or approvals required to give Cloudhouse and its subcontractors or employees the right or license to access, copy, distribute, use and/or modify (including creating derivative works) or install any Third Party Products to be used in the Services, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products.

4.                   Proprietary Rights

4.1 Tools. Cloudhouse retains all intellectual property rights with respect to the tools and software Cloudhouse used to deliver the Services. Any use by Customer, including the execution, reproduction, modification, distribution, transmission, republication, display, transfer or performance, except as specifically permitted by Cloudhouse during the term of the Services and for delivery of the Services, is strictly prohibited.

4.2 Deliverables. Unless otherwise specified in a SOW, Cloudhouse shall be the owner of all intellectual property right, title and interest including, but not limited to, copyright rights in and to all methodologies, know-how, software, management scripts, tools, utilities, procedures, documentation and other materials, and all Deliverables created by Cloudhouse during the performance of this PSA. Subject to payment in full for the applicable Services, Cloudhouse grants to Customer a perpetual, non-exclusive license to use the Deliverables for Customer’s internal use. As used herein, “Deliverables” means all software programming, work product and other deliverables, and all related written reports, requirements documents, specifications, program materials, flow charts, notes, outlines and the like, and all intermediate and partial versions thereof, that are developed, authored, conceived, originated, prepared or otherwise created by Cloudhouse or its employees, agents or subcontractors for or on behalf of Customer in connection with Cloudhouse’s performance of Services under this PSA, excluding any Customer Confidential Information and reports, data or other information furnished by Customer to Cloudhouse.

4.3 Residuals. Cloudhouse shall be free to use and disclose for any purpose the Residuals acquired by Cloudhouse during the course of performance of this PSA, including but not limited to information relating generally to the art of information technology management. For purposes of this section, the term “Residual” means information or know-how in non-tangible form which is retained by Personnel of Cloudhouse who have had access to Confidential Information during the performance of this PSA. Nothing herein shall authorize Cloudhouse to infringe on any intellectual property rights of Customer.

5.                   Limited Warranty AND Limitation of Liability

5.1 Limited Warranty. Cloudhouse warrants that its Personnel will possess the necessary technical qualifications required to perform the Services and that it shall perform the Services required by this PSA in a workmanlike manner, in accordance with the standards of care and diligence normally practiced by technology services firms in performing services of a similar nature. If Cloudhouse fails to provide Personnel or the Services as warranted, and Customer reports such failure to Cloudhouse, Cloudhouse will immediately re-perform the Services, AS applicable. The above is Customer’s sole and exclusive remedy for breach of warranty by Cloudhouse with regard to this PSA.

5.2 Disclaimer. Except as set forth in Section 5.1 (“Limited Warranty”), Cloudhouse makes no express or implied REPRESENTATIONS or WARRANTIES with respect to the personnel, the services, any product resulting from, related to or arising out of the performance of such services, or their condition, merchantability, fitness for any particular purpose or use by customer. Cloudhouse furnishes the above WARRANTIES in lieu of all other warranties, express or implied, including the warranties of merchantability and fitness for a particular purpose.


 

6.                   Term and Termination

6.1 Term. This PSA is effective as of the Effective Date and will continue until the parties no longer have any unfulfilled obligations under this PSA or this PSA is otherwise terminated in accordance with this Section 6 (Term and Termination). Termination of this PSA will terminate all SOWs.

6.2 Termination for Convenience. Either party may terminate this PSA or a SOW for convenience at any time upon thirty (30) days prior written notice to the other party, provided that upon termination, Customer shall pay Cloudhouse for any Services already provided but not paid by Customer, pro-rated as appropriate for any fixed-fee SOW, and the cost of the actual out-of-pocket expenses incurred by Cloudhouse, in each case as of the date of Cloudhouse’s receipt of Customer’s written notice of termination. Cloudhouse may terminate this PSA for convenience if Customer postpones the Services to a date more than sixty (60) days later than the Services date originally set forth in a SOW or otherwise agreed to by the parties.

6.3 Termination for Cause. Either party may terminate this PSA for cause if the other party breaches any material term or condition of this PSA and fails to cure such breach within thirty (30) days after receipt of written notice of the same and the non-breaching party may, subject to the terms of the Limitation of Liability in the Agreement seek to recover damages and/or if applicable seek equitable relief. If Customer breaches any material term of this PSA, including non-payment of fees due to Cloudhouse, Cloudhouse may discontinue providing the Services so long as such breach is not remedied.

7.                   ENTIRE AGREEMENT

This PSA and the EULA (which is incorporated into the PSA and made a part hereof for all purposes) constitute the entire agreement of the parties with regard to the matters referred to herein, and supersede all prior oral and written representations and agreements, if any, of the parties in respect hereto. This PSA shall not be modified except by a subsequently dated written amendment or supplemental SOW signed on behalf of Cloudhouse and Customer by their duly authorized representatives.

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