Master Services Agreement
This Master Services Agreement (this “Agreement”) is a legal and binding contract between CloudKey and its affiliates (“we”, “our” or “us”) and You (“Customer”, “Your”, “User” or “End User”). This Agreement contains the terms and conditions that govern Your access to and use of the service offerings (“Service” or “Services”) or the entity You represent. This Agreement takes effect when You use our Services. Using our Services indicates that You have read and accepted the terms of this Agreement. If You do not agree with any of the terms of this Agreement, You are not allowed to access or otherwise use our Services.
You may access and use the Services in accordance with this Agreement. Whenever You use our Services, You agree to comply with the terms of this Agreement and all laws, rules and regulations applicable to Your use of the Services.
By using our Services, You represent and warrant to us that You are of age and are lawfully able to enter into contracts (e.g., You are not a minor). If You are entering into this Agreement for an entity, such as the company You work for, You represent to us that You have legal authority to bind that entity. If You are not legally able to enter into contracts, You are not allowed to use the Services until You are legally able to do so.
For Service performance improvement, we may also modify the terms of this Agreement, provided, however, that we will provide at least a 90 day advance written notice via email. Subject to the 90 day advance notice requirement with respect to the changes of the terms of this Agreement, the modified terms will become effective upon posting. By continuing to use our Services after the effective date of any modifications to this Agreement, You agree to be bound by the modified terms. We last modified this Agreement on the date listed at the end of this Agreement.
1.1. Limited Subscription License
At the time of initial registration, You will select the service plan(s) to which You wish to subscribe (each a “Subscription”). All Subscriptions to our Services are licensed to You, but not sold to You. Subject to this Agreement and continuing compliance with this Agreement, we grant You a non-exclusive, non- transferable, non-sublicensable, revocable limited license to use the Services. Your Subscription to the Services is subject to our approval and will be deemed accepted when we deliver a confirmation of the Subscription to You.
1.2. Change of Services
We may change or discontinue any of the Services from time to time. We will provide You at least 12 months prior notice if we discontinue a Service.
1.3. Service Restrictions
You and Your End Users will use our Services for lawful purposes only. Neither You nor any End User will use our Services in any manner or for any purpose other than as expressly permitted by this Agreement. Any and all transmissions, functions, storage or presentation of any information, data or material in violation of any United States Federal, State or City law or Your local jurisdiction is prohibited. This includes, but is not limited to (a) unauthorized use of copyrighted material, trademark, intellectual property, material protected by trade secret and (b) use or representation of material that is obscene or threatening. Therefore, example of actions, contents or links such as these are prohibited: (a) pornography or similar non family friendly content, (b) malicious bots, malware and other malicious applications, (c) spamming or sending unsolicited bulk email, (d) copyright infringement content, (e) IRC Shell or Public IRC, and (f) Illegal or pirated software, and (g) any and all malicious activities or attempt to gain unauthorized access or to impair any aspect of our Services or its related systems or networks, or other external systems or networks.
1.4. Uptime Guarantee
We offer You Service Level Agreement (“SLA”) guaranteeing certain availability of our Services. Please refer to our SLA guidelines for detail.
1.5. Trademark
The CloudKey Trademark applies to Your use of the CloudKey Marks. You will not misrepresent or embellish the relationship between us and You (including by expressing or implying that we support, sponsor, endorse, or contribute to You or Your business endeavors). You will not imply any relationship or affiliation between us and You except as expressly permitted by this Agreement.
2.1. Your Accounts
Except to the extent caused by our breach of this Agreement, You are responsible for all activities that occur under Your account, regardless of whether the activities are authorized by You or undertaken by You, Your employees or a third party (i.e. contractors, agents or Users) with access to Your account. We and our affiliates are not responsible for unauthorized access to Your account.
2.2. Your Security
You are responsible for properly securing Your account with the use of strong passwords and secure encryption to protect against unauthorized access. You are also responsible for safeguarding Your login credentials and keys.
2.3. Your Content
You agree that the use of our Services by You and Your End Users are for lawful purposes only. You are also responsible to develop, operate, maintain, secure and protect Your Content.
2.4. Your Backup
While backup is complimentary on our Services, You are welcome to create Your own. You will be responsible for properly configuring, protecting and restoring Your own backup that is outside the scope covered by our Services.
2.5. Your End Users
You are responsible for any action by You and Your Users (i.e. “End Users” which also includes Your affiliates, employees, contractors and third parties). You will ensure that You and all End Users comply with all the terms under this Agreement while using our Services. If You become aware of any violation of Your obligations under this Agreement caused by an End User, You will immediately suspend access to Your Content and the Services accessible by such End User. We do not provide any support or Services to End Users unless we have a separate agreement with You or an End User obligating us to provide such support or services.
3.1. Customer Data Rights and Ownerships
You will remain the sole owner of all right, title and interest in and to all Customer Data, subject to the right and permissions granted in Section 3.2.
3.2. Right to Use Customer Data
You and Your End Users grant Us the right to use Customer Data in compliance with applicable law in order to (a) communicate with You and Your End Users, (b) perform the Service in accordance with this Agreement or (c) as may be required by law.
3.3. Right to Use Feedback
You and Your End Users grant to Us a royalty-free right to use and incorporate into Our materials at all times any form of suggestions, requests, or any other input or feedback provided by You and and Your End Users.
4.1. Service Fees
We calculate and bill the Services either on a one-time or on Subscription basis (collectively “Fees”). Subscription based Services will be charged monthly at the beginning of service. We may bill You more frequently for fees accrued if we suspect that Your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Services using one of the payment methods we support. You agree that all amounts payable by You under this Agreement will be paid to us timely without setoff or counterclaim, and without any deduction or withholding.
4.2. Taxes
Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by You are exclusive of Indirect Taxes, except where applicable law requires otherwise. We may charge and You will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from You. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from You. We will not collect, and You will not pay, any Indirect Tax for which You furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by You to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, You will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement.
4.3. Billing
Services are billed on an automatic, auto-renewal and recurring basis unless and until You follow termination procedure set forth in section 7 of this Agreement. Your obligation to pay fees continues through the end of the Subscription Term. Our Subscriptions may be subject to usage limits. We perform Service audits periodically. If we determine that Your usage exceeds the current amount of usage limits purchased, we reserve the right to invoice You for the additional use and offer You an upgrade suitable for Your usage.
4.4. Late Payments
We may elect to charge You interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
4.5. Other Fees
We are not responsible for any transaction fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees Your financial institution may impose due to Your use of the Services. If we should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, we will bill You for the difference between payment received and the Fees due. You also agree to pay all attorney and collection fees arising from our efforts to collect any past-due Fees.
The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under the Section 7. Unless otherwise agreed on a separate written agreement, the term of CloudKey Services is either a month-to-month or a 12-month period.
6.1. General Cause
We may suspend Your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to You if we determine that (a) You or Your End User’s use of the Services poses a security risk to the Services or in breach of this Agreement, or (b) You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, insolvency, dissolution, liquidation or similar proceeding.
6.2. Effect of Temporary Suspension
Under this suspension period, You remain responsible for all fees and charges of the Services and You will not be entitled to any service credits under the Service Level Agreements.
7.1. Cancellation Upon Expiration
You may cancel a Service by providing no less than 30 days cancellation notice (or that which is defined on a Service Order) prior to the expiration date of such Service to prevent auto renewal. We need to receive Your cancellation notice in writing.
7.2. Termination Following Suspension of Services
In the event that a service to Customer is suspended due to non performance as defined in Section 4, we may terminate this Agreement and any Services. We will exercise all remedies available under the applicable law.
7.3. Termination for Cause
Either party shall notify the other party promptly and without unreasonable delay upon learning of any actual or suspected material breach. Except as provided in Section 7.2., either party may terminate this Agreement and Services related to the breach if the other party materially breaches this Agreement and fails to cure the breach within 30 days or other agreed time frame following receipt of written notice from the non-breaching party (excluding any breaches relating to the payment of charges and fees, which shall not require further notice as to due date).
7.4. Termination for Convenience
You may cancel a Service for convenience by providing no less than 90 days cancellation notice (or that which is defined on the Service Order) prior to the elected termination date. We may incur considerable consequences and losses in the event You terminate a Service for convenience. Such consequences and losses would be difficult, if not impossible to estimate. Therefore, You agree to pay us a fee equals a minimum of 50% of the total unpaid fees for the remainder of the term beyond the termination date for any Services terminated (“Termination Fee”) under this Section 7.4. You also agree to pay us all amounts due pursuant to Section 7.6. You agree that we are only agreeing to provide You a right to cancel for convenience conditioned upon (a) the full payment of the Termination Fee and all amounts due pursuant to Section 7.6. and (b) that absent payment of these fees, You do not have the right to terminate this Agreement or any Service Order under this Section 7.4.
7.5. Termination due to Bankruptcy
Either party may terminate this Agreement for cause immediately if the other party files for bankruptcy, becomes insolvent or makes an assignment for the benefit of creditors, or if a Trustee is set up to administer a substantial portion of the other party’s assets or business.
7.6. Consequences of Termination
Upon termination of this Agreement or any Service Order for any reason other than cancellation by You under Section 7.1. or 7.3., You agree to immediately pay us upon the receipt of invoice for each Service terminated: (a) all unpaid charges and fees defined in the Agreement or Service Order; and (b) all unpaid third party charges and fees incurred by us. Rights and obligations which by their nature continue after the termination or expiration of this Agreement or Service Order shall survive and bind the parties, their successors, heirs and permitted assigns. Your content and access to the Service will be deleted and removed once the Service is terminated.
You will defend, indemnify, and hold harmless us, our affiliates, vendors and licensors, and each of their respective employees, officers, directors, and representatives from and against any losses arising out of or relating to any third-party claim concerning: (a) Your or any End Users’ use of the Services; (b) breach of this Agreement or violation of applicable law by You, End Users or Your Content; or (c) a dispute between You and any End User. You agree to reimburse us for reasonable attorneys’ and court’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party legal subpoena or proceeding associated with third party claims described in this section.
9.1. Third-Party Product and Services
You acknowledge and agree that we make no representation or warranty, express or implied, as to any third party hardware, software, products or services included with the Services. We assign to You all assignable warranties and indemnities granted to us by such third parties to the extent applicable to Your receipt or use of the Services during the service term. To the extent we are not permitted to assign any such third party warranties and indemnities, we will use commercially reasonable efforts to enforce such protections on Your behalf, subject to the third party agreements and applicable law.
9.2. Warranties
We will perform the Services in a manner that does not infringe any intellectual property or other rights and to perform the service to the best of our ability as defined in this Agreement. Except as stated in this Agreement, we make no representations or warranties of any kind, whether expressed or implied with respect to the product and services. We disclaim all other warranties or conditions, including without limitation, warranties of merchantability or fitness for a particular purpose, all warranties arising from conduct, course of transaction or custom of trade and all warranties of title and non-infringement. We do not warrant that the Services will always be free from error or that the use of the Services will be uninterrupted at all times. Some jurisdictions do not allow the exclusion of implied warranties, so portions of the above exclusions may not apply, but only to the extent necessary to bring the exclusion into compliance.
We and our affiliates, subsidiaries, or contractors will not be liable for any delay, failure in performance, loss or damage that is caused by events beyond our reasonable control including but not limited to, fire, flood, explosion, fiber cuts, failure of public utilities, unavailability of materials or rights-of-way, accident, war, strike, embargo, terrorist activities, public riot, blockage, civil disturbance, governmental restraint, supplier failures, shortages, breaches or delays and natural disasters. You have the right to terminate this Agreement and receive a refund of any unused prepaid fees if the interruption of the Services caused by a force majeure event causes You to be unable to operate on any of our platforms for longer than 30 days.
Your acknowledgement of this Agreement is subject to all applicable federal, state and local laws, and regulations, rulings, orders, and other actions of governmental agencies (“Rules”), including, but not limited to: the Communications Act of 1934 as amended by the Telecommunications Act of 1996, the rules and regulations of the Federal Communications Commission (“FCC”), and the obtaining and continuance of any required approvals, authorizations, or tariffs filed with the FCC or any other governmental agency. In good faith, we will perform reasonable efforts to obtain, retain, and maintain such approval and authorizations. If any such rules materially adversely affects the product or services defined in this Agreement, or requires us to provide products and Services outside of this Agreement, either party may, without liability to the other party, terminate the affected product and services upon 30 days prior written notice to the other party. In the event of any conflict between any provision of this Agreement and any provision of an applicable tariff, the provision of such tariff will control.
If any provision of this Agreement is held by a court to be invalid, void or unenforceable, the remainder of this Agreement shall remain unimpaired and in full force and effect. In addition, in the event that any provision (or portion thereof) of this Agreement is determined by a court to be unenforceable as drafted by virtue of the scope, duration, extent, or character of any obligation contained therein, it is the parties’ intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under such applicable law.
Failure by You or Your End Users to enforce compliance with any of the terms of this Agreement shall not constitute a waiver or relinquishment of such right. All waivers must be in writing. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair our rights of granting such waiver in any other respect or at any other time.
If both parties have executed a nondisclosure Agreement, a Confidentiality Agreement separate from this Agreement, or similar Agreement, both parties agree that the terms of this Agreement shall remain in full effect throughout the term of this Agreement and shall be incorporated herein by reference. Notwithstanding the foregoing, all parties agree to maintain in strict confidence all plans, designs, drawings, trade secrets, and other proprietary information of the other party disclosed under this Agreement. The parties’ obligations under this section shall survive expiration or termination of this agreement.
During the term of this Agreement and for one (1) year following thereafter, You and Your affiliated party agree not to solicit for employment or hire, either directly or indirectly (through an associate or affiliate company, head hunters and any other means) any of our employee or personnel, unless a non-negotiable placement fee equal to fifty percent (50%) of the higher of (a) the current annual aggregate salary, wages and compensation we pay to such personnel, or (b) the annual salary or wages including calculable bonuses that You have offered to such personnel is paid in full. You agree that such personnel cannot begin work for You until the placement fee is paid in full. You agree that any attempt or actual hiring of our employee without prior written approval will be considered a material breach of this Agreement and we will be entitled to an immediate injunction and all remedies and damages afforded by law. Further, we are not required to post a bond for any injunction type remedy. This section will survive the termination of this Agreement.
All notices shall be in writing, and will be deemed given when: (a) delivered to the recipient by certified U.S. Mail or overnight courier service with proof of delivery; or (b) hand delivered to the recipient; or (c) delivered by email to the recipient. No public statements or announcements relating to this Agreement shall be issued by either party without the prior written consent of the other party.
This Agreement will be interpreted and construed in accordance with the internal laws of the State of Delaware, United States without giving effect to its principles of conflicts of laws. In the event of any dispute, contest, arbitration or litigation between the parties, the prevailing party in such dispute, contest, arbitration or litigation shall be fully reimbursed by the other party for all costs, including reasonable attorneys’ fees, court costs, expert or consultant’s fees and reasonable travel and lodging expenses incurred by the prevailing party, including any appellate proceedings. This Agreement, the duties and the obligations of Provider and Customer shall be enforceable against any of the parties in the courts in Delaware.
Date: 04/20/2022