This Master Service Agreement (“MSA”) is entered into by and between Cloudfiles Technologies Inc, a Delaware corporation with its principal office at 38350 Fremont Blvd, Suite 203, Fremont, CA 94536 (“CloudFiles”), and the customer identified in the applicable Order Form (“Customer”), and is effective as of the Order Start Date of the first Order Form referencing this MSA (the “Effective Date”). This MSA, together with each Order Form, each Service Schedule, and the Appendices hereto, constitutes the “Agreement.” CloudFiles and Customer are each a “Party” and together the “Parties.”
1. Definitions
“Account” means the account established by Customer to access and use the CloudFiles Services.
“Account Administrator” means an Authorized User designated by Customer to manage its Account, including provisioning and de-provisioning Authorized Users.
“Affiliate” means an entity that controls, is controlled by, or is under common control with a Party, where control means ownership of more than fifty percent (50%) of the voting interests of the subject entity.
“Authorized User” means an individual employee, agent, or contractor of Customer or its Affiliates authorized by Customer to use the CloudFiles Services under Customer’s Account.
“CloudFiles Service(s)” means the services provided by CloudFiles under an Order Form, and may include software, source code, or other technology licensed to CloudFiles from third parties and embedded into the services that CloudFiles provides to Customer. Notwithstanding the foregoing, CloudFiles Services do not include Third-Party Services (defined below).
“Confidential Information” means all information disclosed by one Party (“Discloser”) to the other Party (“Recipient”) in connection with the Agreement that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms of the Agreement, Customer Data, product roadmaps, pricing, and security information. Confidential Information does not include information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Discloser; (b) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (c) is received from a third party without breach of any obligation owed to the Discloser; or (d) was independently developed by the Recipient without use of the Discloser’s Confidential Information.
“Customer Data” means electronic data, e-Documents, and other content submitted to the CloudFiles Services by or on behalf of Customer, its Affiliates, or its Authorized Users.
“Documentation” means CloudFiles’ then-current usage guides and help documentation for the CloudFiles Services, available at help.cloudfiles.io.
“Support and Service Level Agreement” or “SLA” means the support, maintenance, and service level commitments applicable to the CloudFiles Services, as set forth in Appendix A (Support and Service Level Agreement), or as otherwise specified in an applicable Order Form.
“e-Document” refers to a contract, notice, disclosure, collateral or any other record or document deposited into the CloudFiles Cloud Service by Customer for processing.
“Indemnified Party(s)” means the Party (whether CloudFiles or Customer) being indemnified under Section 8 (Third-Party Claims), including its employees, directors, agents, and representatives.
“Indemnifying Party(s)” means the Party (whether CloudFiles or Customer) that is providing indemnification under Section 8 (Third-Party Claims).
“Order Form” means the order form provided by CloudFiles that sets forth the pricing and the CloudFiles Services selected by Customer.
“Order Start Date” means the start date stated in the Term field of the applicable Order Form.
“Professional Services” means any integration, consulting, architecture, training, transition, configuration, administration, and similar ancillary CloudFiles Services that are set forth in an Order Form.
“Service Schedule” means the service-specific terms and conditions applicable to the CloudFiles Service(s).
“System” means the software systems and programs, the communication and network facilities, and the hardware and equipment used by CloudFiles or its agents to make available the CloudFiles Services via the Internet.
“Term” means the period beginning on the Order Start Date and continuing for the duration stated in the applicable Order Form, together with any renewal terms. All line items on an Order Form have the same Term.
“Third-Party Services” means services, software, products, applications, integrations and other features or offerings that are provided by Customer or obtained by Customer from a third party.
2. Usage and Access Rights
2.1 Right to Use
CloudFiles will provide the CloudFiles Services to Customer as set forth in the Order Form. Subject to the terms and conditions of the Agreement, CloudFiles grants to Customer a worldwide, limited, non-exclusive, non-transferable right and license during the Term, solely for its and its Affiliates’ internal business purposes, and in accordance with the Documentation, to:
(a) access and use the CloudFiles Services;
(b) implement, configure, and through its Account Administrator, permit its Authorized Users to access and use the CloudFiles Services; and
(c) access and use the Documentation. Customer will ensure that its Affiliates and all Authorized Users using the CloudFiles Services under its Account comply with all of Customer’s obligations under the Agreement, and Customer is responsible for their acts and omissions relating to the Agreement as though they were those of Customer. A Customer Affiliate may enter into an Order Form directly with CloudFiles under this MSA by a mutually executed Order Form that references this MSA. In such event:
(i) the Customer Affiliate will be bound by this MSA and will be fully responsible for its liabilities and obligations under the applicable Order Form; and
(ii) all references to “Customer” in the Agreement will be deemed references to the Customer Affiliate set forth on the Order Form for purposes of defining the rights and obligations of the Parties hereunder.
2.2 Restrictions
Customer shall not, and shall not permit its Authorized Users or others under its control to, do the following with respect to the CloudFiles Services:
(a) use the CloudFiles Services, or allow access to it, in a manner that circumvents contractual usage restrictions or that exceeds Customer’s authorized use or usage metrics set forth in the Agreement, including the applicable Order Form;
(b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the CloudFiles Services or Documentation available for access by third parties except as otherwise expressly provided in the Agreement;
(c) reverse engineer, decompile, disassemble, or copy any of the CloudFiles Services or technologies, or otherwise attempt to derive source code or other trade secrets or create any derivative works from or about any of the CloudFiles Services or technologies, or use the machine-learning algorithm output generated from the CloudFiles Services to train, calibrate, or validate, in whole or in part, any other systems, programs or platforms, or for benchmarking, software-development, or other competitive purposes, except pursuant to Customer’s non-waivable rights under applicable law, without CloudFiles’ written consent;
(d) use the CloudFiles Services or Documentation in a way that:
(i) violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; or
(ii) effects or facilitates the storage or transmission of libellous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene;
(e) fail to use commercially reasonable efforts to avoid interference with or disruption to the integrity, operation, performance, or use or enjoyment by others of the CloudFiles Services;
(f) use the CloudFiles Services to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or circumvent or disclose the user authentication or security of the CloudFiles Services or any host, network, or account related thereto or use any aspect of the CloudFiles Services components other than those specifically identified in an Order Form, even if technically possible.
2.3 Suspension of Access
CloudFiles may suspend any use of the CloudFiles Services or remove or disable any Account or content that CloudFiles reasonably and in good faith believes violates the Agreement. CloudFiles will use commercially reasonable efforts to notify Customer prior to any such suspension or disablement, unless CloudFiles reasonably believes that:
(a) it is prohibited from doing so under applicable law or under legal process (such as court or government administrative agency processes, orders, mandates, and the like); or
(b) it is necessary to delay notice in order to prevent imminent harm to the CloudFiles Services or a third party. Under circumstances where notice is delayed, CloudFiles will provide notice if and when the related restrictions in the previous sentence no longer apply.
2.4 Third-Party Services
Customer may choose to obtain Third-Party Services from third parties and/or CloudFiles (for example, through a reseller arrangement or otherwise). Any acquisition by Customer of Third-Party Services is solely between Customer and the applicable Third-Party Service provider and CloudFiles does not warrant, support, or assume any liability or other obligation with respect to such Third-Party Services, unless expressly provided otherwise in the Order Form or the Agreement. In the event Customer chooses to integrate or interoperate Third-Party Services with CloudFiles Services in a manner that requires CloudFiles or the CloudFiles Services to exchange Customer Data with such Third-Party Service or Third-Party Service provider, Customer:
(a) grants CloudFiles permission to allow the Third-Party Service and Third-Party Service provider to access Customer Data and information about Customer’s usage of the Third-Party Services as appropriate and necessary to enable the interoperation of that Third-Party Service with the CloudFiles Services;
(b) acknowledges that any exchange of data between Customer and any Third-Party Service is solely between Customer and the Third-Party Service provider and is subject to the Third-Party Service provider’s terms and conditions governing the use and provision of such Third-Party Service (the presentation and manner of acceptance of which is controlled solely by the Third-Party Service provider); and
(c) agrees that CloudFiles is not responsible for any disclosure, modification or deletion of Customer Data resulting from access to such data by Third-Party Services and Third-Party Service providers.
3. Ownership
3.1 Customer Data
Customer Data processed using the CloudFiles Services is and will remain, as between Customer and CloudFiles, owned by Customer. Customer hereby grants CloudFiles the right to process, transmit, store and disclose the Customer Data in order to provide the CloudFiles Services to Customer, subject to the terms of the Agreement, including Section 4 (Security and Customer Data) and Section 10 (Confidentiality), and the DPA.
3.2 CloudFiles Services
CloudFiles, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to the CloudFiles Services and Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder. Unless otherwise specified in the applicable Order Form, all deliverables provided by or for CloudFiles in the performance of Professional Services, excluding Customer Data and Customer Confidential Information, are owned by CloudFiles and constitute part of the CloudFiles Service(s) under the Agreement.
3.3 Feedback
CloudFiles encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to CloudFiles Services and related resources (“Feedback”). To the extent Customer provides Feedback, Customer grants to CloudFiles and its Affiliates a royalty-free, fully paid, sub-licensable, transferable (notwithstanding Section 12.2 (Assignability)), non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such feedback into the CloudFiles Services) without restriction. Customer shall ensure that:
(a) Feedback does not identify Customer, its Affiliates, or Authorized Users, or include any Customer Data; and
(b) Customer has obtained requisite authorization from any Authorized User or other third party to grant the license described herein. For the avoidance of doubt, Feedback does not constitute Customer Confidential Information.
4. Security and Customer Data
4.1 Security
CloudFiles will use commercially reasonable industry standard security technologies in providing the CloudFiles Services. CloudFiles has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards, designed to preserve the security, integrity, and confidentiality of Customer Data and Customer personal data and to protect against unauthorized or unlawful disclosure or corruption of or access to such data. Those measures will be at least as protective as the measures set out in Annex II of the CloudFiles Data Processing Agreement available at https://www.cloudfiles.io/dpa as at the Effective Date. CloudFiles will not materially reduce the overall level of security protection afforded to Customer Data during the Term. The security measures described at https://www.cloudfiles.io/security are provided for information.
Additional or differing security obligations, if any, will be expressly set forth in the applicable Service Schedule, Order Form, or separate written agreement between the Parties.
4.2 Customer Data
Customer is responsible for Customer Data (including Customer personal data) as entered into, supplied or used by Customer and its Authorized Users in the CloudFiles Services. Further, Customer is solely responsible for determining the suitability of the CloudFiles Services for Customer's business and complying with any applicable data privacy and protection regulations, laws or conventions applicable to Customer Data and Customer’s use of the CloudFiles Services. Customer grants to CloudFiles the non-exclusive right to process Customer Data (including personal data), for the sole purpose of and only to the extent necessary for CloudFiles:
(a) to provide the CloudFiles Services;
(b) to verify Customer’s compliance with the restrictions set forth in Section 2.2 (Restrictions) if CloudFiles has a reasonable belief of Customer’s non-compliance; and
(c) as otherwise set forth in the Agreement.
4.3 Usage Data
CloudFiles may collect and use data, information, or insights generated or derived from the use of the CloudFiles Services, excluding Customer Data and any data derived from the contents of e-Documents (“Usage Data”) for its business purposes, including industry analysis, benchmarking, analytics, marketing, and developing, training and improving its products and services. CloudFiles will de-identify and aggregate Usage Data before using it for the purposes described in this Section or disclosing it, and will disclose Usage Data in aggregate form only in a manner that does not identify Customer, its Authorized Users, Customer Data, or Customer's Confidential Information. CloudFiles retains identifiable usage data for no longer than twenty-four (24) months.
4.4 Data Protection
To the extent CloudFiles processes personal data contained in Customer Data on Customer’s behalf, such processing is governed by the CloudFiles Data Processing Agreement (including, where applicable, the Standard Contractual Clauses) (the “DPA”), which is incorporated into the Agreement by reference where executed by the Parties or where required by applicable data protection law. The then-current DPA is available at https://www.cloudfiles.io/dpa.
4.5 Compliance Reports
Upon Customer’s reasonable written request, no more than once in any twelve (12) month period, CloudFiles will make available its then-current third-party security attestation reports or summaries thereof (such as SOC 2 Type II), subject to the confidentiality obligations in Section 10 (Confidentiality).
5. Payment of Fees
5.1 Fees
Except as expressly set forth in a separate order form, Customer will pay all fees in accordance with the following:
(a) CloudFiles Services fees are invoiced in advance as per recurring frequency set forth in the Order Form;
(b) the first invoice will coincide with the Order Start Date of an Order Form;
(c) payment will be due within thirty (30) days from Customer’s receipt of the invoice; and
(d) all amounts will be denominated and payable in the currency specified in the Order Form;
(e) Unless otherwise agreed to by the Parties and expressly noted in the Order Form, invoices will be sent to Customer via email.
(f) Upon execution by Customer and CloudFiles, each Order Form is non-cancellable and non-refundable except as provided in the Agreement, and the Term as set forth in the Order Form for CloudFiles Services is a continuous and non-divisible commitment for the full duration of the Term regardless of any invoice schedule.
(g) Customer may withhold from payment any charge or amount disputed by Customer in good faith pending resolution of such dispute, provided that Customer:
(i) notifies CloudFiles of the dispute prior to the date such payment is due, specifying in such notice (A) the amount in dispute, and (B) the reason for the dispute set out in sufficient detail to facilitate investigation by CloudFiles and resolution by the Parties;
(ii) makes timely payment of all undisputed charges and amounts;
(iii) works diligently with CloudFiles to resolve the dispute promptly.
5.2 Purchase Orders
If Customer issues a purchase order, then it shall be for the full amount set forth in the applicable Order Form, and CloudFiles hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer, and conditions assent solely based on the terms and conditions of the Agreement as offered by CloudFiles. Upon request, CloudFiles shall reference the purchase order number on its invoices, provided, however, that Customer acknowledges that it is Customer’s responsibility to provide the corresponding purchase order information (including a purchase order number) to CloudFiles upon the signing of any Order Form. Customer agrees that a failure to provide CloudFiles with the corresponding purchase order shall not relieve Customer of its obligations to provide payment to CloudFiles pursuant to Section 5.1 (Fees) above.
5.3 Offsets; Past Dues
If CloudFiles owes any amounts to Customer that are not derived from the Agreement, such amounts will not be withheld or offset against any invoice issued under the Agreement. If Customer fails to timely pay any amounts due under the Agreement, then without limitation of any of its other rights or remedies, CloudFiles may suspend performance of those CloudFiles Services, after providing at least seven (7) days’ written notice of the overdue amount, until CloudFiles receives all past due amounts from Customer.
5.4 Taxes
Fees are exclusive of all sales, use, value-added, goods and services, and similar transaction taxes, levies and duties. Customer is responsible for all such amounts, excluding taxes imposed on CloudFiles’ net income. If Customer is required by law to withhold or deduct any amount from a payment, Customer will provide CloudFiles with appropriate documentation of the withholding.
6. Term and Termination
6.1 Term; Renewal; Price Adjustments
This Agreement commences on the Effective Date and continues for the Term set forth in the applicable Order Form; if no period is specified in the Order Form, the Term is one (1) year from the Order Start Date. If CloudFiles does not adjust fees for a renewal, the applicable Order Form automatically renews for successive terms equal in length to the expiring Term at unchanged fees, unless either Party gives the other written notice of non-renewal at least thirty (30) days before the end of the then-current Term. CloudFiles may increase fees at renewal by no more than five percent (5%) over the fees for the expiring Term. If CloudFiles applies an increase, it will notify Customer at least thirty (30) days before the end of the then-current Term, and the applicable Order Form will renew only upon Customer’s acceptance of the adjusted fees, which may be given in writing, by email, or by executing a renewal Order Form; absent acceptance, the Order Form expires at the end of the then-current Term. For multi-year Terms, fees are locked for the full committed Term and any adjustment applies only at renewal.
6.2 No Termination for Convenience
Except as expressly set forth in an Order Form, neither Party may terminate the Agreement or any Order Form for convenience during the Term. Except where the Agreement expressly provides for termination or a refund (including Sections 6.3, 8.4 and Appendix A), each Order Form is a commitment for its full Term as set forth in Section 5.1(f), and fees committed under an Order Form remain due for the full Term.
6.3 Termination for Breach; Termination for Insolvency
If either Party commits a material breach or default in the performance of any of its obligations under the Agreement, then the other Party may terminate the Agreement in its entirety by giving the defaulting Party written notice of termination, unless the material breach or default in performance is cured within thirty (30) days after the defaulting Party receives notice thereof. Either Party may terminate the Agreement in its entirety upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or an assignment for the benefit of creditors.
6.4 Post-Termination Obligations
If the Agreement expires or is terminated for any reason:
(a) Customer will pay to CloudFiles any amounts that have accrued before, and remain unpaid as of, the effective date of termination;
(b) except as necessary for Customer to exercise its export right under Section 6.4(d), licenses and use rights granted to Customer with respect to the CloudFiles Services and related intellectual property will terminate;
(c) CloudFiles’ obligation to provide any further CloudFiles Services to Customer under the Agreement will terminate, except any such CloudFiles Services that are expressly to be provided following the expiration or termination of the Agreement; and
(d) CloudFiles will make Customer Data available to Customer for export in a commonly used format for thirty (30) days after the effective date of termination or expiration, after which CloudFiles will delete Customer Data in accordance with its data deletion policies, except as required by applicable law; and
(e) the Parties’ rights and obligations under Sections 3, 4.3, 5 (with respect to amounts accrued and payable), 6.4, 7.2, 7.3, and 8 through 12 will survive, and Sections 4.1 and 4.4 will survive for so long as CloudFiles retains any Customer Data.
7. Warranties and Disclaimers
7.1 CloudFiles Service Warranties
CloudFiles warrants that:
(a) during the applicable Term, the CloudFiles Services, when used as authorized under the Agreement, will perform substantially in conformance with the Documentation associated with the applicable CloudFiles Services; and
(b) CloudFiles will use commercially reasonable efforts to ensure that the CloudFiles Services do not introduce files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses into Customer's system. Customer’s sole and exclusive remedy for any breach of these warranties by CloudFiles, is for CloudFiles to repair or replace the affected CloudFiles Services to make them conform, or, if CloudFiles determines that the foregoing remedy is not commercially reasonable, then Customer may terminate the affected Order Form or the affected CloudFiles Service on written notice, and CloudFiles will refund prepaid fees for the unused remainder of the then-current Term for the terminated CloudFiles Service and Customer will have no further payment obligation in respect of it.
7.2 Mutual Warranties
Each Party represents and warrants that:
(a) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with the terms of the Agreement; and
(b) no authorization or approval from any third party is required in connection with its execution of the Agreement.
7.3 Disclaimer
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THE AGREEMENT, CLOUDFILES:
(A) MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER;
(B) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE; AND
(C) DOES NOT WARRANT THAT THE CLOUDFILES SERVICES ARE OR WILL BE ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF CLOUDFILES TO ANY THIRD PARTY.
8. Third-Party Claims
8.1 By CloudFiles
CloudFiles will defend and, in accordance with Section 8.3 (Procedures), indemnify Customer’s Indemnified Parties from and against, any:
(a) third-party claim;
(b) third-party legal action; or
(c) administrative agency action or proceeding (each, a “Claim”) to the extent arising from:
(i) any actual breach by CloudFiles of specified security safeguards under the Agreement related to the CloudFiles Services that results in the breach of its confidentiality obligations in Section 10 (Confidentiality); and
(ii) any alleged infringement of any third-party intellectual property right occurring from Customer’s use of the CloudFiles Services as authorized under the Agreement.
Notwithstanding the foregoing, CloudFiles will not be responsible for any Claim due to Customer’s or its Authorized User’s combination of CloudFiles Services with goods or services provided by third parties, including any Third-Party Services; adherence to specifications, designs, or instructions furnished by Customer; or Customer’s modification of the CloudFiles Services not described in the Documentation or otherwise expressly authorized by CloudFiles in writing.
8.2 By Customer
Customer will defend and, in accordance with Section 8.3 (Procedures), indemnify CloudFiles’ Indemnified Parties from and against, any Claim to the extent arising from:
(a) use of the CloudFiles Services by Customer or its Authorized Users in violation of the Agreement, the Documentation, or applicable law;
(b) any breach by Customer of its obligations under Section 2.2 (Restrictions) or Section 10 (Confidentiality); or
(c) the nature and content of Customer Data processed by the CloudFiles Services in accordance with this Agreement.
8.3 Procedures
The Parties’ respective obligations in this Section 8 (Third-Party Claims) are conditioned on:
(a) the Indemnified Parties giving the Indemnifying Party prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the Indemnifying Party is prejudiced by the delay or failure;
(b) the Indemnifying Party being given full and complete control over the defence and settlement of the Claim; and
(c) the relevant Indemnified Parties providing assistance in connection with the defence and settlement of the Claim, as the Indemnifying Party may reasonably request. The Indemnifying Party will indemnify the Indemnified Parties against:
(i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any Claim;
(ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defence of the Claim (other than attorneys’ fees and costs incurred without the Indemnifying Party’s consent after it has accepted defence of such Claim); and
(iii) all amounts that the Indemnifying Party agreed to pay to any third party in settlement of any Claims arising under this Section 8 (Third-Party Claims) and settled by the Indemnifying Party or with its approval. The Indemnifying Party shall not, without the relevant applicable Indemnified Parties’ prior written consent, agree to any settlement on behalf of such Indemnified Parties which includes either the obligation to pay any amounts, or any admissions of liability, whether civil or criminal, on the part of any of the Indemnified Parties.
8.4 Infringement Remedy
If Customer is enjoined or otherwise prohibited from using any of the CloudFiles Services or a portion thereof based on a Claim covered by CloudFiles’ indemnification obligations under Section 8.1 (By CloudFiles) above, then CloudFiles will, at its sole expense and option, either:
(a) obtain for Customer the right to use the affected portions of the CloudFiles Services;
(b) modify the allegedly infringing portions of the CloudFiles Services so as to avoid the Claim without substantially diminishing or impairing their functionality; or
(c) replace the allegedly infringing portions of the CloudFiles Services with items of substantially similar functionality so as to avoid the Claim.
If CloudFiles determines that the foregoing remedies are not commercially reasonable and notifies Customer of such determination, then either Party may terminate the Agreement, and in such case, CloudFiles will provide a prorated refund to Customer for any prepaid fees for the infringing CloudFiles Services received by CloudFiles under the Agreement that correspond to the unused portion of the Term. The remedies set out in this Section 8 (Third-Party Claims) are Customer’s sole and exclusive remedies for any actual or alleged infringement by the CloudFiles Services of any third-party intellectual property right.
9. Limitation of Liability
9.1 Exclusion of Damages
EXCEPT FOR THE PARTIES’ EXPRESS OBLIGATIONS UNDER SECTION 8 (THIRD-PARTY CLAIMS), UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
9.2 Limitation of Liability
EXCEPT FOR:
(A) THE PARTIES’ EXPRESS OBLIGATIONS UNDER SECTION 8 (THIRD-PARTY CLAIMS);
(B) DAMAGES RESULTING FROM DEATH OR BODILY INJURY, OR PHYSICAL DAMAGE TO TANGIBLE REAL OR PERSONAL PROPERTY, CAUSED BY EITHER PARTY’S NEGLIGENCE;
(C) DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND
(D) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (PAYMENT OF FEES); AND (E) SUCH OTHER LIABILITIES WHICH CANNOT BE LIMITED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY (AND THEIR RESPECTIVE AFFILIATES) ARISING OUT OF OR RELATED TO THE AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE CLOUDFILES SERVICE(S) DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
10. Confidentiality
10.1 Restricted Use and Nondisclosure
During and after the Term, Recipient will:
(a) use the Confidential Information of the disclosing Party solely for the purpose for which it is provided;
(b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its Affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and
(c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
10.2 Required Disclosure
If Recipient is required by law to disclose Confidential Information of the disclosing Party, Recipient will give prompt written notice to the disclosing Party before making the disclosure, unless prohibited from doing so by legal or administrative process, and cooperate with the disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
10.3 Ownership
Recipient acknowledges that, as between the Parties, all Confidential Information it receives from the disclosing Party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing Party. Nothing in the Agreement grants Recipient any right, title or interest in or to any of the disclosing Party’s Confidential Information. Recipient’s incorporation of the disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
11. Governing Law and Venue
11.1
The Parties agree to the following country-specific provisions for governing law and venue for all claims and disputes arising out of or relating to the Agreement. The Agreement will be interpreted, construed, and enforced in all respects in accordance with the following laws based on the billing address of Customer reflected on the Order Form.
(a) United Kingdom, a Member State of the European Economic Area, or Switzerland. The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including, without limitation, non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims). The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to the Agreement.
(b) Australia. The Agreement is governed by the laws of New South Wales, Australia, and both Customer and CloudFiles agree to submit to the non-exclusive jurisdiction of the New South Wales courts. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to the Agreement. Any legal action arising under the Agreement must be initiated within two years after the cause of action arises. Each Party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to the Agreement.
(c) Singapore. This Agreement is governed by the laws of Singapore, and both Customer and CloudFiles agree to submit to the non-exclusive jurisdiction of the courts of the Republic of Singapore. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to the Agreement. Any legal action arising under the Agreement must be initiated within two years after the cause of action arises.
(d) For all other locations. The Agreement is governed by the laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary. The Parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco County, California, for the purposes of adjudicating any dispute arising out of the Agreement. To the extent permitted by law, choice of law rules, the 1980 U.N. Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted, shall not apply. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party’s intellectual property rights. Each Party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to the Agreement.
11.2
To the extent allowed by law, the English version of the Agreement is binding, and other translations are for convenience only.
12. General
12.1 Relationship
The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Except as set forth in the Agreement, nothing in the Agreement, expressed or implied is intended to give rise to any third-party beneficiary.
12.2 Assignability
Neither Party may assign its rights or obligations under the Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign its rights and obligations under the Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other Party’s consent.
12.3 Notices
Any notice required or permitted to be given in accordance with the Agreement will be effective only if it is in writing and sent using:
(a) certified or registered mail; or
(b) a nationally recognized overnight courier; or (c) email, to the appropriate Party at the email address designated for notices, which in the case of Customer is the Account Administrator and in the case of CloudFiles is legal@cloudfiles.io.
Each Party hereto expressly consents to service of process by registered mail. Either Party may change its address for receipt of notice by notice to the other Party through a notice provided in accordance with this Section 12.3 (Notices). Notices are deemed given upon two (2) business days following the date of mailing, one (1) business day following delivery to a courier, or one (1) business day following transmission by email absent a bounce or delivery-failure message.
12.4 Force Majeure
In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under the Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes) (“Force Majeure Event”), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party:
(a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event;
(b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event;
(c) provides periodic notice of relevant developments; and
(d) provides prompt notice of the end of such Force Majeure Event.
12.5 Anti-Corruption
In connection with the CloudFiles Services performed under the Agreement and Customer’s use of the CloudFiles Services, the Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations.
12.6 Publicity
Neither Party shall refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the CloudFiles Services unless the prior written consent of the other Party has been obtained, provided, however, that CloudFiles may use Customer’s name and logo for the limited purpose of identifying Customer as a customer of the CloudFiles Services.
12.7 Waiver
The waiver by either Party of any breach of any provision of the Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with the Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Agreement.
12.8 Severability
If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect.
12.9 Entire Agreement
The Agreement is the final, complete, and exclusive expression of the agreement between the Parties regarding the CloudFiles Services provided under the Agreement. The Agreement supersedes and replaces, and the Parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the CloudFiles Services under the Agreement), representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. The Agreement may be changed only by a written agreement signed by an authorized agent of both Parties, except that CloudFiles may update the DPA in accordance with its terms, provided that no such update materially reduces the protections afforded to Customer Data during the Term. The Agreement will prevail over terms and conditions of any Customer-issued purchase order or other ordering documents, which will have no force and effect, even if CloudFiles accepts or does not otherwise reject the purchase order or other ordering document. This MSA is incorporated by reference into each Order Form; where the Parties have executed a customized Master Service Agreement, that agreement is attached to or executed alongside the applicable Order Form and replaces this MSA in respect of that Order Form. In the event of a conflict among the documents comprising the Agreement, the applicable Order Form will prevail over this MSA with respect to commercial terms (products, quantities, fees, and the Term), and this MSA will prevail in all other respects, including over any Appendix or Service Schedule, unless the Appendix or Service Schedule expressly states that it amends this MSA.
12.10 Insurance
CloudFiles will maintain, at its own expense, insurance coverage of types and in amounts that are commercially reasonable for a company of its size providing services of the kind contemplated by the Agreement, including commercial general liability, professional liability (errors and omissions), and cyber liability coverage. Upon Customer’s written request, CloudFiles will provide a certificate of insurance evidencing such coverage.
Appendix A: Support and Service Level Agreement
CloudFiles will provide implementation assistance and ongoing support for the CloudFiles Services as set forth in this Appendix, at no additional charge unless otherwise stated in an Order Form.
- Implementation Scope: CloudFiles will provide initial implementation assistance consisting of initial configuration of the CloudFiles Services, setup of the templates and workflows identified in the applicable Order Form or agreed at the kick-off call, and up to two (2) training sessions on system usage. The implementation scope will be documented by CloudFiles following the kick-off call. Work beyond the documented scope, including new workflows, material reconfiguration, or data migration, may be scoped separately as Professional Services under an Order Form.
- Technical Handover: After initial implementation, CloudFiles will hand over the system to a designated Technical Contact from Customer’s end. During the Term, CloudFiles will provide reasonable assistance with minor adjustments to the existing setup; material reconfiguration and new workflows may be scoped separately as Professional Services.
- Customer Responsibilities: Customer will provide, in a timely manner: a named technical contact with authority over its Salesforce environment; the access, permissions and credentials CloudFiles reasonably requires to configure the CloudFiles Services; sandbox and production environments as needed; representative test data and documents; and timely review and feedback at each implementation milestone. Implementation timelines assume Customer’s reasonable responsiveness, and CloudFiles is not responsible for delays or resulting service shortfalls caused by Customer’s failure to meet these responsibilities.
- Ongoing Support: CloudFiles will provide ongoing support during the Term, which includes:
- Email support: available at support@cloudfiles.io, monitored on Business Days (Monday through Friday, excluding public holidays).
- Live technical support: prescheduled based on Customer and CloudFiles resource availability.
- Service Levels. Response times below are measured during Business Days:
- Critical issues (e.g., service downtime): response within two (2) hours.
- High priority (e.g., significant performance degradation): response within four (4) hours.
- Medium priority (e.g., non-critical bugs or feature requests): response within one (1) Business Day.
Resolution times depend on the nature and complexity of the issue and are not guaranteed.
- Availability. CloudFiles will use commercially reasonable efforts to make the CloudFiles Services available at least 99.5% of the time in each calendar month, measured excluding: (i) scheduled maintenance for which CloudFiles has given advance notice; (ii) emergency maintenance; (iii) unavailability caused by Third-Party Services, Customer’s systems or configuration, or Customer’s network or Salesforce environment; and (iv) Force Majeure Events. No service credits are payable in respect of availability. If CloudFiles fails to meet this commitment in three (3) consecutive calendar months, Customer may terminate the affected Order Form on written notice and CloudFiles will refund pre-paid fees for the unused remainder of the Term, which is Customer’s sole and exclusive remedy for any failure to meet this commitment.
- Misconfiguration: The service levels above do not apply to issues arising from misconfiguration of the CloudFiles Services by Customer or its Authorized Users. CloudFiles will nonetheless use commercially reasonable efforts to assist Customer in resolving such issues.