IPAAS SERVICES AGREEMENT
Effective for contracts signed after November 15, 2020
TERMS AND CONDITIONS
IMPORTANT – READ THIS CAREFULLY BEFORE USING OR ACCESSING THESE PROPRIETARY SERVICES.
BY AGREEING TO AN ORDER, CLICKING “I AGREE” TO AN ORDER, SUBMITTING A CREDIT CARD PAYMENT FORM, OR BY OTHERWISE ACCESSING OR USING THE PLATFORM OR THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT.
These Terms of Service (“Terms”), along with the Order (defined below) and other documents incorporated by reference (collectively, “Agreement”) create an agreement between Cloud Elements, Inc., a Delaware corporation (“Cloud Elements”) and the business entity or person identified on the Order for whom you (“You”) are acting (“Customer”). This Agreement governs Customer’s access to and use of the Platform (defined below) and the Services (defined below) through the Cloud Elements site (“Site”). You are entering into this Agreement for Customer’s access and use of the Services in accordance with this Agreement. You represent and warrant that You are entering into this Agreement on behalf of Customer and that You have the authority to bind Customer to this Agreement.
The Order is considered an offer and Cloud Elements is willing to provide the Services to Customer only on condition that You accept all the terms in this Agreement on behalf of Customer. Any different or additional terms and conditions set forth in any purchase order, confirmation, statement of work, order form or similar ordering document are rejected and shall have no force or effect on the Agreement unless it is an amendment or addendum to the Agreement signed by authorized representatives of both parties.
If Customer has entered into a signed written agreement or other online agreement with Cloud Elements for the Services prior to this Agreement, then this Agreement shall supersede and take precedence over any such earlier agreement. This Agreement shall be the entire agreement between the parties regarding the Services and any earlier agreement is hereby terminated.
Non-Production Services. From time to time, Cloud Elements may make certain services available to Customer by providing access to non-production versions of Cloud Elements’ iPaaS solution or any version of Cloud Elements’ software, and other applications, features, functions, or technology that Cloud Elements has designated as non-production, staging environment, development environment, free trial, proof of concept, pilot, beta, limited release, developer preview, or other similar description (“Non-Production Services”). Customer may choose to try such Non-Production Services or not in its sole discretion. Any use of Non-Production Services is subject to the Non-Production Services terms.
This Agreement is entered into and effective as of the Commencement Date (defined below). The parties agree as follows:
1. DEFINITIONS
1.1 “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of fifty percent (50%) or more of the outstanding voting securities (but only for as long as such entity meets these requirements).
1.2 “API” means application programming interface.
1.3 “API Call” means an authenticated API interaction facilitated in connection with the Services.
1.4 “Clients” means the clients of Customer.
1.5 “Commencement Date” means the effective date of the agreement and identified as the Contract Commencement Date set forth in the applicable Order or, if no “Commencement Date” is set forth in the Order, the Commencement Date will be the date of the last signature on the Order.
1.6 “Customer Data” means the digital content, data, and information input into the Platform by Users.
1.7 “Documentation” means any user materials, instructions, and specifications made available by Cloud Elements to Customer for the Services as part of the Platform.
1.8 “Element” means an API integration that enables a connection into a specific cloud application or cloud service endpoint whether existing in the Platform or built using the Platform.
1.9 “Element Instance” means a connection between an Element that has been configured and authenticated to an endpoint application for a Third Party Service.
1.10 “Order” means the initial quotation, proposal, or order for Services executed by Customer and Cloud Elements into which these Terms are incorporated, and such additional quotations, proposals, or orders for Services as may be agreed to from time to time under this Agreement. The term “Order” includes any quotation, proposal, or order for Services made online through any ordering process on the Site through which Customer orders Services.
1.11 “Platform” means the Cloud Elements proprietary cloud API integration platform utilized by Cloud Elements to provide the Services to Customer under this Agreement.
1.12 “Service Level Agreement” means Cloud Elements service level agreement located on the Site at https://cloud-elements.com/service-level-agreement-v2/ or attached to this Agreement.
1.13 “Services” means the integration platform as a service (“iPaaS”) solution as described in the Order and this Agreement that enables Users to (a) publish, integrate, aggregate and manage APIs to quickly connect entire categories of cloud services using uniform APIs and (b) synchronize data between multiple cloud services through access to and use of the Platform. Services includes the support services provided by Cloud Elements in accordance with the Support Agreement.
1.14 “Software” means Cloud Elements proprietary software programs made available by Cloud Elements as part of the Platform, including any modified, updated, or enhanced versions of such software that may become part of the Software.
1.15 “Support Agreement” means the Cloud Elements standard terms for support services available on the Site here https://cloud-elements.com/customer-support-agreement-v2/ or attached to this Agreement.
1.16 “Third Party Agreement” means a separate agreement between Customer and a third party for Third Party Services to which Cloud Elements is not a party.
1.17 “Third Party Services” means the cloud applications, cloud service endpoints, data services, software, and content of third parties to which Customer may access and connect using the Services.
1.18 “User” means any individual user of the Services for whom access to the Platform is authorized by Customer.
2. SERVICES
2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Cloud Elements shall provide the Services to Customer pursuant to the applicable Order and this Agreement. Purchase by Customer of the Services is not contingent on the provision of any future functionality or features, or dependent on any oral written public comments made by Cloud Elements regarding future functionality or features.
2.2 Rights. Subject to the terms and conditions of this Agreement, Cloud Elements grants Customer a non-exclusive, non-transferable (except as permitted under Section 10.2) right to access and use the Platform solely for Customer’s and Customer’s Affiliates’ business purposes and in accordance with the Documentation and this Agreement. Under the rights granted to Customer in this Agreement, Customer may permit employees and contractors of Customer, Customer’s Affiliates, and Clients to become Users in order to access and use the Platform in accordance with this Agreement; provided that Customer shall be fully responsible for Users’ compliance with the applicable provisions of this Agreement. Customer shall be liable for the acts and omissions of all Customer’s Affiliates, Clients, and all Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of or otherwise give rise to liability to Customer under this Agreement. Customer shall not and shall not permit any User to use the Platform except as expressly permitted under this Agreement. Cloud Elements and its licensors reserve all rights in and to the Platform not expressly granted to Customer under this Agreement.
2.3 Third Party Services. The Services utilize public APIs for access and connectivity to Third Party Services. Customer and its Clients are responsible for determining which Third Party Services are accessed and connected to by Customer and Clients. Cloud Elements does not control or own any Third Party Services, and the access to and use of such Third Party Services, including the availability and uptimes related to such Third Party Services, is solely determined by the relevant third parties that control such Third Party Services. Cloud Elements shall not be liable for any downtime, discontinuation, or any other issues with or caused by the Third Party Services that are outside Cloud Elements reasonable control. In order to access and use a Third Party Service, the applicable third party requires that Customer agree to a Third Party Agreement with such third party in order for Customer to access and use the applicable Third Party Service and such third party may require additional consents to allow Customer and Clients to connect the Third Party Service to the Platform.
3. FEES AND PAYMENT TERMS
3.1 Fees. Customer shall pay the fees for the Services set forth in the applicable Order (“Fees”) in accordance with terms set forth in the applicable Order. Fees are exclusive of, and Customer shall be responsible for and pay all taxes, fees (including payment processing fees), duties, and other governmental charges arising from the payment of any Fees or any amounts owed to Cloud Elements under this Agreement (excluding any taxes arising from Cloud Elements income or any employment taxes). Fees for any Services requested by Customer that are not set forth in an Order will be charged as mutually agreed to by the parties in writing. All payments received by Cloud Elements are non-refundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars unless otherwise agreed to by the parties.
3.2 Overage. If Customer exceeds (a) the quantity of Elements purchased by Customer on an applicable Order, or (b) any another specified usage limitations as set forth in the applicable Order, within 30 days after the end of the applicable period, Cloud Elements shall provide Customer with an invoice for the applicable Fees for such excess quantity or the usage in excess of such limitations, and such invoice shall include a report detailing the quantities of Elements and excess usage on monthly basis during the preceding period. Customer shall pay to Cloud Elements all undisputed amounts set forth in such invoice in accordance with Section 3.3. If Customer has a good faith dispute of any overage fees contained in such invoice, Customer shall notify Cloud Elements and the parties will discuss any disputed amounts in good faith in an effort to seek resolution within 60 days after Cloud Elements’ receipt of such notice.
3.3 Payment Terms. Unless the applicable Order provides otherwise, Customer shall pay the Fees within 30 days after Customer’s receipt of the applicable invoice for such Services. Cloud Elements may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. If Customer’s account becomes past due, Customer will receive written notice to that effect. If Customer fails to pay all past due amounts within 10 business days after notification, Cloud Elements may suspend the provision of all Services until such time as Customer pays all past due amounts. If Customer continues to be habitually delinquent in its payments, Cloud Elements may, upon written notice to Customer, (a) terminate this Agreement for breach without an opportunity to cure, or (b) the payment terms shall be modified to require full payment before the provision or continued use of all Services (both currently contracted and scheduled future provisioned), or require other assurances to secure Customer’s payment obligations hereunder.
4. TERM AND TERMINATION
4.1 Term of Agreement. The initial term of this Agreement shall begin on the Commencement Date and continue until the Contract End Date specified in an Order (“Initial Term”). This Agreement will automatically renew for additional 1-year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless a party provides the other Party with written notice of non-renewal at least 90 days before the end of the Initial Term or applicable Renewal Term. Except as expressly provided in the applicable Order, renewal of Services will be at Cloud Elements applicable pricing in effect at the time of the applicable renewal.
4.2 Termination for Cause. A party may terminate this Agreement or an Order upon notice if the other party breaches any material provision of this Agreement and does not cure such breach (provided that such breach is capable of cure) within 30 days after being provided with written notice of such breach.
4.3 Effect of Termination. Upon the effective date of termination of this Agreement: (a) all amounts owed to Cloud Elements under this Agreement before such termination will be due and payable in accordance with Section 3, (b) all Orders will terminate and Cloud Elements shall cease providing the Services, (c) all rights granted in this Agreement will cease, and (d) within 30 days after such termination, each party shall return or destroy all Confidential Information of the other party in its possession and shall not make or retain any copies of such Confidential Information, except (i) as required to comply with any applicable legal or accounting record keeping requirement or (ii) that a party may retain Confidential Information in a party’s archived backup files. Unless Customer terminates this Agreement for Cloud Elements’ uncured breach in accordance with Section 4.2, such termination shall not terminate or affect Customer’s obligation to pay all Fees for the entire Term for Services agreed upon by Customer and Customer shall not be entitled any refund of prepaid Fees. Sections 1, 3, 4.3, 6, 8, 9, and 10, and all payment obligations shall survive termination of this Agreement.
5. CONFIDENTIALITY
5.1 Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, whether or not such information is designated as confidential. Cloud Elements’ Confidential Information includes the Software, the Platform, and the Documentation. Customer’s Confidential Information includes Customer Data.
5.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement, and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to written confidentiality obligations no less restrictive than Recipient’s obligations under this Section. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
5.3 Exceptions. Recipient shall have no confidentiality obligations under Section 5.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; or (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process, provided that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.
6. PROPRIETARY RIGHTS
6.1 Customer. As between the parties, Customer owns all right, title, and interest in Customer Data, including all intellectual property rights therein. Any rights not expressly granted to Cloud Elements hereunder are reserved by Customer, its licensors and suppliers. Customer hereby grants to Cloud Elements, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 10.2), non-sublicensable license to use the Customer Data solely for the limited purpose of performing the Services for Customer under this Agreement.
6.2 Cloud Elements. All proprietary technology utilized by Cloud Elements to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between Customer and Cloud Elements, are the exclusive property of Cloud Elements. Cloud Elements or its third party licensors retain ownership of all right, title and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Platform, including without limitation the Software, all Elements, Cloud Elements’ database (and all data therein except for Customer Data), Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by Cloud Elements in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by Cloud Elements.
6.3 Restrictions. Except as expressly provided for in the documentation or by the terms of this Agreement, Customer shall not: (a) directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, trade secrets or know-how in or underlying the Platform or any portion thereof, (b) use the Platform or any APIs accessed through the Platform for any illegal, unauthorized or otherwise improper purposes; (c) modify or make derivative works of any part of the Platform or; (d) access the Platform in order to build a similar or competitive product or service; (e) exceed the limit of API calls per Element Instance per month as set forth in the Documentation; or (f) use the Services in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Documentation or this Agreement.
6.4 General Skills and Knowledge. Subject to Section 5, nothing in this Agreement prohibits Cloud Elements from utilizing any skills or knowledge of a general nature gained or created by Cloud Elements during the course of providing the Services, including, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Cloud Elements.
6.5 Usage Data. Cloud Elements may publish, share or otherwise distribute analytics, statistics or other data related to Customer’s use of the Platform, Software, Services, and API’s accessed using the Services (“Usage Data”), provided that (a) such Usage Data is aggregated with data from other Cloud Elements customers or users in a manner that does not reasonably allow Usage Data to be separated from such aggregate data and identified as relating to Customer and (b) if the Usage Data is not aggregated and/or the Usage Data can be identified as relating to Customer, then Cloud Elements may (i) only use such Usage Data for internal purposes and (ii) Cloud Elements may not publish, share or otherwise distribute such Usage Data.
6.6 Data Protection. To the extent that Customer Data contains personal data (e.g., information relating to an individual), Cloud Elements shall implement and maintain during the Term of this Agreement reasonable and appropriate administrative, technical, and physical security measures to protect Customer Data that are appropriate to the nature of the information, and Cloud Elements shall comply with the processing terms contained in the Cloud Elements Data Protection Addendum incorporated by reference into this Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 Performance Warranty. Cloud Elements warrants that the Platform will perform substantially as described in the associated Documentation when operated in accordance with the Documentation. Cloud Elements shall use reasonable efforts to correct, in accordance with the Support Agreement, any reproducible error in the Platform that indicates a breach of the foregoing warranty reported by Customer within 30 days after Customer experiences the error. If Cloud Elements is unable to correct a properly reported error within 30 days, Cloud Elements shall, upon request by Customer, provide remedies in accordance with the Service Level Agreement. Cloud Elements shall have no obligation to undertake any action for any error caused by Customer or a third party or the combination of the Services with third party products or materials. Customer’s sole and exclusive remedy and Cloud Elements’ sole and exclusive obligation for errors in the Platform or nonconformity with this warranty shall be as set forth in this Section 7.1.
7.2 Representations and Warranties by Customer. Cloud Elements is not the source of any data and Customer’s rights and obligations regarding the access and use of data through the Platform is subject to the applicable Third Party Agreements related to the source of the data. Accordingly, Customer represents and warrants that: (a) that it shall comply with and shall not violate any Third Party Agreements in connection with the Services; (b) it has the right to (i) use the Customer Data as contemplated by this Agreement and (ii) grant Cloud Elements the license in Section 6.1. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Cloud Elements shall have the right to suspend any of the Services in order to prevent harm to Cloud Elements or its business and to limit any potential liability. If practicable, Cloud Elements shall provide notice and opportunity to cure. Once cured, at Cloud Elements’ discretion, Cloud Elements shall use reasonable efforts promptly restore the Services.
7.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, THE SERVICES ARE PROVIDED SOLELY ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS SOLE RISK. CLOUD ELEMENTS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. CLOUD ELEMENTS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST REVENUE, LOST PROFITS, COST OF REPLACEMENT OF GOODS OR SERVICES, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE OF SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT PAID OR OWED BY CUSTOMER TO CLOUD ELEMENTS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY TO (1) LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 5, (2) A PARTY’S OBLIGATIONS UNDER SECTION 9 OR (3) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. INDEMNIFICATION
9.1 Claims Against Customer. Cloud Elements shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software infringes any intellectual property rights of such third party (each, a “Customer Claim”), and Cloud Elements shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Cloud Elements in writing of such Customer Claim, but late notice shall only relieve Cloud Elements of its obligation to indemnify to the extent that it has been prejudiced by the delay; (b) giving Cloud Elements sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Cloud Elements’ request and expense, assisting in such defense. In the event that the use of the Platform is enjoined, Cloud Elements shall, at its option and at its own expense either (i) procure for Customer the right to continue using the Platform, (ii) replace the Software with a non-infringing but functionally equivalent product, (iii) modify the Software so it becomes non-infringing or (iv) terminate this Agreement and refund the amounts Customer paid for Platform access that relates to the period during which Customer was not able to use the Platform. Notwithstanding the foregoing, Cloud Elements will have no obligation under this Section 9.1 with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data that Cloud Elements did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the Platform by any person other than Cloud Elements or its authorized agents or subcontractors. This Section 9.1 states Cloud Elements’ entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.
9.2 Claims Against Cloud Elements. Customer shall defend, any claim, suit, or action against Cloud Elements brought by a third party to the extent that such claim, suit or action is based upon (a) Customer’s failure to comply with or violation of any Third Party Agreement (b) on an allegation that the Customer Data infringes any intellectual property rights of such third party, (c) use by Customer of any data accessed through the Services (“Cloud Elements Claim”) and Customer shall indemnify and hold Cloud Elements harmless, from and against Losses that are specifically attributable to such Cloud Elements Claim or those costs and damages agreed to in a settlement of such Cloud Elements Claim. The foregoing obligations are conditioned on Cloud Elements: (i) promptly notifying Customer in writing of such Cloud Elements Claim, but late notice shall only relieve Customer of its obligation to indemnify to the extent that it has been prejudiced by the delay; (ii) giving Customer sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 9.2 with respect to any Cloud Elements Claim to the extent based upon Cloud Elements’ use of the Customer Data in violation of this Agreement.
10. MISCELLANEOUS PROVISIONS
10.1 Independent Contractor. Cloud Elements acknowledges that it is an independent contractor, and neither Customer nor Cloud Elements is intended to or should be construed to be an agent, partner, joint venture or employee of the other. Neither party has any authority to bind or otherwise obligate the other party in any manner, and neither party may represent to anyone that it has a right to do so.
10.2 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that a party may assign this Agreement without consent from the other party by operation of law or otherwise to (a) an Affiliate or (b) any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement does not confer any rights or remedies upon any person or entity not a party hereto.
10.3 Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any event which is beyond the reasonable control of such party (“Force Majeure Event”) provided that the delayed party: (a) gives the other party prompt notice of such Force Majeure Event, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Cloud Elements is unable to provide Services for a period of 60 consecutive calendar days as a result of a continuing Force Majeure Event, Customer may cancel the Services without further obligation, penalty, or late fee. Payment obligations may be delayed but not excused due to a Force Majeure Event.
10.4 Notices. To be effective, notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, or certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for each party first set forth on the signature page and will be effective upon receipt, except that electronic mail may be used to distribute routine communications and to obtain approvals and consents but may not be used for any other notices.
10.5 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado without reference to its choice of law rules. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Denver, Colorado in any litigation arising out of this Agreement or the Services.
10.6 Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Each party acknowledges and agrees that any actual or threatened breach of Sections 5 or 6 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.
10.7 Compliance with Laws. Each party shall comply with those laws and regulations in jurisdictions that are specifically applicable to the such party. Neither party shall export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information in violation of export control laws or regulations of the U.S. Government or of any country within whose jurisdiction Customer operates or does business.
10.8 No Third Party Beneficiaries. Except with respect to any provision expressly designating a third party as a beneficiary of this Agreement, nothing in this Agreement, express or implied, confers or is intended to confer upon or give to any person or entity, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with this Agreement. The express designation of a third party beneficiary (if any) is limited to only those rights expressly identified by the designation.
10.9 Waivers. To be effective, any waivers must be in writing and signed by the party granting such waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.10 Severability. If any provision of this Agreement is, for any reason, held to be unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
10.11 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
10.12 Entire Agreement. This Agreement, including any Order, exhibits, addenda, or attachments thereto, constitute the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Agreement shall govern. No amendment to this Agreement will be effective unless in writing and signed by both parties.