Master Service Agreement: Cloud Elements Inc.

This Master Services Agreement (including any exhibits attached hereto) (the “Agreement”) is entered into as of _________ (the “Effective Date”) between Cloud Elements, Inc., a Delaware corporation (“CE” or “Cloud Elements”), with a principal office address of 3858 Walnut Street #235, Denver, Colorado 80205 and _____ (“Licensee”), with a principal office address of ____, on behalf of itself and its Affiliates. CE and Licensee are each a “Party” and together, the “Parties.” In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.     DEFINITIONS

1.1    “Additional Services” means any additional services performed by CE and provided to Licensee excluding: Products, Support Services, or Professional Services, and memorialized in one or more statements of work or order form, attached as an exhibit hereto and duly executed by both Parties describing specific terms and Additional Services (each, an “SOW” or “Order Form”). Notwithstanding the foregoing, an initial SOW or Order Form that is entered into as of the Effective Date and attached to this Agreement does not need to be separately executed by the Parties.

1.2    “Affiliate” means any person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified. The term “control” (including the terms “controlling”, “controlled by”, and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether or not through the ownership of or power to vote more than 50% of the voting securities of the person, by contract, or otherwise.

1.3     “API” means application program interface.

1.4     “API Call” means an authenticated API interaction facilitated in connection with a Product.

1.5     “Authenticated Instance” means an instance of an Element created for every account authenticated to a cloud service endpoint, and, depending on the use case, is either associated with an administrator account on behalf of an entity or an individual user account.

1.6    “Active Authenticated Instance” or “AAI” means an Authenticated Instance that has initiated one or more API Calls within a given month, specifically excluding interactions where no API Call is made.

1.7    “Confidential Information” means any information a Party provides to the other Party which is marked or identified at the time of disclosure as “confidential” or “proprietary” and includes the terms, conditions, and existence of this Agreement.

1.8    “Element” means an API integration that enables a connection into a specific cloud application or cloud service endpoint.

1.9    “Licensed Capacity” means the number of licenses of a particular Product granted to Licensee under this Agreement.

1.10    “Product” or “Products” means CE’s proprietary software application and other technology, and all linked pages, content, and components, that allows Licensee to connect the Licensee’s services to Third-Party Services for which Licensee is granted a license pursuant to the Agreement, including any and all corrections, updates, upgrades, and enhancements to the Products. The Products licensed under this Agreement are memorialized in one or more SOWs or Order Forms.

1.11    “Professional Services” means services that CE provides to assist Licensee in the planning, design and configuration of the Products or Services.

1.12    “Services” means, collectively, Additional Services, Support Services, and Professional Services.

1.11    “User” or collectively “Users” means any person or entity that subscribes to access and use the Products via the Licensee’s application or service.

2.     SCOPE

2.1   Products and Services. CE shall provide Licensee with the Products pursuant to one or more Order Forms.

2.2   Support Services. CE shall provide maintenance support services to Licensee (“Support Services”) pursuant to a support agreement, attached hereto as EXHIBIT B (“Support Agreement”).

2.3   Affiliates and Users. Licensee may obtain Products and Services for the benefit of and use by Licensee’s Affiliates, provided such persons remain Affiliates, and/or Users. Such Affiliates or Users are entitled to use the Products and Services in accordance with this Agreement and have and are entitled to all rights, benefits, and protections granted to Licensee under this Agreement. Licensee is solely and exclusively responsible for compliance by any of its Affiliates or Users with the terms and conditions of this Agreement and for any of its Affiliates’ acts or omissions in connection with this Agreement.

3.     LICENSE GRANT

3.1   License Grant. CE grants to Licensee and Licensee accepts a limited, nontransferable (subject to Section 11.3), nonexclusive, worldwide license to use the Products for Licensee’s business purposes during the Term. Notwithstanding anything to the contrary, the Products are licensed, not sold, to Licensee. All right, title, and interest in and to the Products and any User guides, specifications, test protocols, or other documentation or information that CE provides to Licensee to enable Licensee to install, execute, or access the Products (“Documentation”), including all intellectual property rights therein, shall at all times remain with CE and its licensors. All rights not expressly granted under this Section 3.1 are reserved to CE.

3.2   License Restrictions. Licensee may not use the Products except as specifically authorized under this Agreement. Licensee may not modify or alter the Products in any way. To the maximum extent permitted by applicable law, Licensee shall not cause or permit the reverse engineering, disassembly, or decompilation of the Products.

3.3   Third-Party Services. Licensee hereby acknowledges that the Products utilize public APIs for access and connectivity to certain third-party applications, data services, software, and content (“Third-Party Services”) and that CE does not control or own any Third-Party Services, and the access to and use of such Third-Party Services, including the availability thereof and uptimes related thereto, is solely determined by the relevant third-parties that control such Third-Party Services. Except as expressly provided in this Agreement, Licensee hereby expressly agrees that CE is not liable for any downtime, discontinuation, or any other issues caused by the Third-Party Services that are outside CE’s reasonable control. Licensee may be required to enter into separate agreements with such third-parties to access and use Third-Party Services, and obtain additional consents to connect the Third-Party Services to a Product.

4.     FEES

4.1   Fees and Payment. Licensee shall pay CE any fees and expenses due under this Agreement (“Fees”). CE will invoice Licensee for Fees, and such Fees are due and payable within 30 calendar days from CE’s invoice issuance date unless otherwise provided in writing by CE. Payments shall be in U.S. Dollars. Licensee shall reimburse CE for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting undisputed past due amounts.

4.2   Overage. If Licensee exceeds the Licensed Capacity of AAIs set forth on an applicable SOW or Order Form, then CE shall provide Licensee with: (i) an invoice for the additional capacity; and (ii) a report detailing the quantities of the AAIs used on monthly basis during the preceding calendar quarter (together, the “Reports”) within 30 calendar days of the end of the applicable calendar quarter. If Licensee has a good faith dispute of any additional fees contained in the Reports, it shall pay all undisputed amounts, and the Parties will discuss any disputed amounts in good faith in an effort to seek resolution.

4.3   Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Licensee is responsible for paying all Taxes associated with its payments hereunder. If CE has the legal obligation to pay or collect Taxes for which Licensee is responsible, the appropriate amount shall be invoiced to and duly paid by Licensee, unless Licensee provides CE with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.     CONFIDENTIALITY

5.1   Confidential Information. A Party receiving Confidential Information (the “Receiving Party”) will not use, disclose, or grant use of Confidential Information it receives from the other Party (“Disclosing Party”) except as expressly authorized by this Agreement or in writing by the Disclosing Party. The Receiving Party will cause its employees, agents, and consultants to comply with the same confidentiality obligations set forth in this Agreement. The Receiving Party will use at least the same standard of care as it uses to protect its own Confidential Information of similar nature to ensure that such employees, agents or consultants do not disclose or make any unauthorized use of such Confidential Information. The Receiving Party will promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information.

5.2   Mandatory Disclosure. Notwithstanding anything to the contrary, if the Receiving Party becomes compelled by applicable law, regulation, or by order of a competent judicial or regulatory authority to disclose any Confidential Information, prior to any disclosure the Receiving Party will provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek an appropriate protective order or other remedy at the Disclosing Party’s sole expense and discretion. The Receiving Party agrees to cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in obtaining such protective order. If a remedy acceptable to the Disclosing Party is not obtained by the date that the Receiving Party must comply with the disclosure order, the Receiving Party may disclose such Confidential Information without liability hereunder.

6.    TERM AND TERMINATION

6.1   Term. The term of this Agreement shall begin on the Effective Date and expire on the later of [__] months after the Effective Date or the date as specified in an SOW or Order Form (the “Initial Term”), unless a Party terminates this Agreement earlier as provided in this ARTICLE 6. Upon the end of the Initial Term, this Agreement shall automatically renew for additional consecutive 1 year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either 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.

6.2   Termination for Cause. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Noticed Party”), if the Noticed Party: (i) breaches ARTICLE 3, ARTICLE 4, or ARTICLE 5; (ii) materially breaches any other section of this Agreement that is capable of cure, and does not cure such breach within 14 calendar days after receipt of written notice of such breach; (iii) becomes insolvent or admits its inability to pay its debts generally as they become due; (iv) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 10 business days or is not dismissed or vacated within 30 calendar days after filing; (v) is dissolved or liquidated or takes any corporate action for such purpose; (vi) makes a general assignment for the benefit of creditors; or (vii) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

6.3   Effect of Termination; Transition Services. Upon either the expiration or termination of this Agreement, excluding any termination pursuant to Section 6.2 by CE, CE shall support Licensee for a period not to exceed 6 months and provide updates to all relevant Products provided Licensee pays CE all applicable Fees and Licensee’s payment status remains in good standing, as determined in CE’s sole discretion. After such 6-month period: (i) any licenses granted under Section 3.1 shall terminate; (ii) Licensee shall cease to use any Products; (iii) CE shall have no further obligation to provide the Products and Services; and (iv) each Receiving Party shall destroy all copies of Confidential Information of the Disclosing Party. The termination of this Agreement shall not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve the Licensee’s obligation to pay all fees that accrued prior to such termination.

6.4   Survival. Upon the expiration or termination of this Agreement, the following: (i) ARTICLES shall survive: 5, 7, 8, 9, and 11; and (ii) Sections shall survive: 3.1, 4.1, and this 6.4.

7.    MUTUAL INDEMNIFICATION

7.1   Scope of Indemnification. Each Party agrees to indemnify (“Indemnifying Party”), defend, and hold harmless the other Party, its employees, members, directors, managers, officers, or agents (“Indemnified Party”) from and against any loss, liability, damage, penalty, or expense (including attorneys’ fees, expert witness fees, and costs of defense) in connection with a third-party claim that they may suffer or incur (collectively, the “Losses”) arising from this Agreement as a result of: (i) any failure by the Indemnifying Party or any employee, agent, or Affiliate of the Indemnifying Party to comply with the terms of this Agreement; (ii) any warranty or representation made by the Indemnifying Party: deemed to be false or misleading; or made to any third-person other than as specifically authorized by this Agreement; (iii) gross negligence of the Indemnifying Party or its subcontractors, agents, or employees; or (iv) any alleged or actual violations by the Indemnifying Party or its subcontractors, employees, or agents of any governmental laws, regulations, or rules.

7.1   Indemnification Procedures. The Indemnified Party shall give written notice to the Indemnifying Party (a “Claim Notice”) within 14 calendar days after obtaining actual or constructive knowledge of any Losses or discovery of facts on which the Indemnified Party intends to base a request for indemnification under Section 7.1. The Indemnified Party’s failure to provide a Claim Notice to the Indemnifying Party under this Section 7.2 does not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to the Indemnified Party, but in no event shall the Indemnifying Party be liable for any Losses that result from a delay in providing a Claim Notice. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). Indemnified Party shall furnish promptly to Indemnifying Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party’s duty to defend applies immediately, regardless of whether the Indemnified Party has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim. This ARTICLE 7 states the Indemnifying Party’s sole liability to the Indemnified Party and the Indemnified Party’s exclusive remedy against the Indemnifying Party for any third-party claims.

7.3   Indemnifying Party Control of Defense. The Indemnifying Party may assume, at its sole option, control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under Section 7.1 (an “Indemnified Claim”) by sending written notice of the assumption to the Indemnified Party on or before 15 business days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Indemnified Claim and undertake, conduct, and control, through reputable independent counsel of its own choosing and at Indemnifying Party’s sole cost and expense, the settlement or defense thereof. If the Indemnifying Party assumes control of defense under this Section 7.3, the Indemnified Party: (i) shall fully cooperate with Indemnifying Party in connection therewith; and (ii) may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of the Indemnifying Party.

7.    MUTUAL INDEMNIFICATION

7.1   Scope of Indemnification. Each Party agrees to indemnify (“Indemnifying Party”), defend, and hold harmless the other Party, its employees, members, directors, managers, officers, or agents (“Indemnified Party”) from and against any loss, liability, damage, penalty, or expense (including attorneys’ fees, expert witness fees, and costs of defense) in connection with a third-party claim that they may suffer or incur (collectively, the “Losses”) arising from this Agreement as a result of: (i) any failure by the Indemnifying Party or any employee, agent, or Affiliate of the Indemnifying Party to comply with the terms of this Agreement; (ii) any warranty or representation made by the Indemnifying Party: deemed to be false or misleading; or made to any third-person other than as specifically authorized by this Agreement; (iii) gross negligence of the Indemnifying Party or its subcontractors, agents, or employees; or (iv) any alleged or actual violations by the Indemnifying Party or its subcontractors, employees, or agents of any governmental laws, regulations, or rules.

7.1   Indemnification Procedures. The Indemnified Party shall give written notice to the Indemnifying Party (a “Claim Notice”) within 14 calendar days after obtaining actual or constructive knowledge of any Losses or discovery of facts on which the Indemnified Party intends to base a request for indemnification under Section 7.1. The Indemnified Party’s failure to provide a Claim Notice to the Indemnifying Party under this Section 7.2 does not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to the Indemnified Party, but in no event shall the Indemnifying Party be liable for any Losses that result from a delay in providing a Claim Notice. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). Indemnified Party shall furnish promptly to Indemnifying Party copies of all papers and official documents received in respect of any Losses. The Indemnifying Party’s duty to defend applies immediately, regardless of whether the Indemnified Party has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim. This ARTICLE 7 states the Indemnifying Party’s sole liability to the Indemnified Party and the Indemnified Party’s exclusive remedy against the Indemnifying Party for any third-party claims.

7.3   Indemnifying Party Control of Defense. The Indemnifying Party may assume, at its sole option, control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under Section 7.1 (an “Indemnified Claim”) by sending written notice of the assumption to the Indemnified Party on or before 15 business days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Indemnified Claim and undertake, conduct, and control, through reputable independent counsel of its own choosing and at Indemnifying Party’s sole cost and expense, the settlement or defense thereof. If the Indemnifying Party assumes control of defense under this Section 7.3, the Indemnified Party: (i) shall fully cooperate with Indemnifying Party in connection therewith; and (ii) may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of the Indemnifying Party.

8.    LIMITED WARRANTIES

8.1   Product Warranty. Except as stated below, during the Term, CE warrants that each Product as delivered will perform substantially as described in the associated Documentation when operated in accordance with the usage guidelines set forth in such Documentation. CE will use reasonable efforts to correct any Product defect reported by Licensee during the Term in accordance with the Support Agreement. If CE is unable to correct a properly reported Product defect, CE will, upon request by Licensee, provide remedies in accordance with the Service Level Agreement, attached hereto as EXHIBIT C. CE shall have no obligation to undertake any action for any defect caused by Licensee’s or a third-party’s modifications to the Product or the combination of the Product with third-party products or materials. Licensee’s sole and exclusive remedy and CE’s sole and exclusive obligation for Product defects or nonconformity with this warranty shall be as set forth in this Section 8.1.

8.2   Ownership; Intellectual Property. CE hereby represents and warrants that: (i) CE either owns, is authorized to use, or has otherwise obtained lawful possession of the Products and any requisite underlying intellectual property associated therewith to fulfill its obligations under this Agreement; and (ii) as of the Effective Date, there is no proceeding pending or to CE’s actual knowledge, threatened that alleges that any of the Products infringe on the intellectual property rights of any third-party.

8.3   DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING ANY: (i) WARRANTY OF MERCHANTABILITY; or (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

9.    LIMITATION OF LIABILITY

9.1   IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST REVENUES, LOST DATA, DIMINUTION OF VALUE, EQUIPMENT OR SOFTWARE DOWNTIME, OR FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING OUT OF A BREACH OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT EITHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED UPON OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

9.1   EXCEPT FOR BREACHES OF ARTICLE 3 OR FOR ANY OBLIGATION TO MAKE A PAYMENT UNDER THIS AGREEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY LICENSEE UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE EVENT TRIGGERING SUCH LIABILITY.

10.    [ARTICLE RESERVED]

11.    MISCELLANEOUS

11.1   Compliance With Laws. In the performance of this Agreement, each Party shall comply with the requirements of all applicable laws, ordinances, and regulations of the United States or any state, country, or other governmental entity, including all applicable exports laws and regulations. Neither Party may export or re-export directly or indirectly (including via remote access) any part of the Products, or any Confidential Information to any country for which a validated license is required under any export laws without first obtaining a validated license and complying with this Agreement.

11.2   Force Majeure. Neither Party shall not be liable or responsible to the other Party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the performing Party including, without limitation, acts of God (including outages or blackouts of utilities), flood, fire, earthquake, explosion, governmental actions, embargo, war, invasion or hostilities whether war is declared or not, terrorist threats or acts, riot or other civil unrest, pandemic, national emergency, revolution, insurrection, epidemic, governmental acts or orders or restrictions, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage. Notwithstanding anything to the contrary, in no event shall a Party be required to settle any labor dispute or disturbance.

11.3   Assignment. Neither Party may not assign this Agreement or any rights granted to it hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other Party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, sale of all or substantially all of its assets, or any transaction similar to the foregoing. Upon a purported assignment in breach of this Section 11.3, the non-assigning Party may terminate this Agreement upon written notice to the other Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

11.4   Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, but without giving any effect to the choice of law principles thereunder. The Parties agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, in any forum other than the US District Court for the District of Colorado or the courts of the State of Colorado sitting in the City and County of Denver, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the District of Colorado or, if such court does not have subject matter jurisdiction, the courts of the State of Colorado sitting in the City and County of Denver. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

11.5   Notices. All notices shall be given in writing to the Party to which such notice is required to be given at the address or email address stated on the signature page, and deemed to have been duly given: (i) upon hand delivery; (ii) 3 business days after being sent by registered first class mail (airmail if international) or recognized overnight couriers (e.g., Federal Express); or (iii) when emailed with return receipt confirmation.

11.6   Severability. The invalidity of any one or more provisions of this Agreement shall not affect the remaining portions of this Agreement or any part thereof, all of which are inserted conditionally on their being held valid in law; and in the event that one or more of the provisions contained herein should be invalid, or should operate to render this Agreement or any such other agreement or instrument invalid, this Agreement and such other agreements and instruments shall be construed as if such invalid provisions had not been inserted.

11.7   Waiver. No waiver may be valid against any Party unless made in writing and signed by the Party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein. Neither the waiver by a Party of a breach of or a default under any of the provisions of this Agreement, nor the failure of a Party, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right, remedy, or privilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights, remedies, or privileges hereunder.

11.8   Licensee Publicity. Licensee grants CE the right to add Licensee’s name and company logo to CE’s customer list and website.

11.9   Entire Agreement; Amendment. This Agreement is the complete and exclusive understanding of the Parties, and supersedes and merges all prior proposals and understandings, whether oral or written, relating to the subject matter of this Agreement. In the event of a conflict between the terms and conditions of this Agreement and any exhibit, the exhibit shall be controlling with respect to those transactions covered by that exhibit. The Parties agree that any other terms or conditions included in the Documentation, any quotes, purchase orders, acknowledgments, confirmations, or other forms utilized or exchanged by the Parties shall not be incorporated herein or be binding unless expressly agreed upon in writing by authorized representatives of the Parties. This Agreement may not be modified except in writing, signed by a duly authorized representative of CE and a duly authorized representative of Licensee, and expressly referring to this Agreement.

11.10  Counterparts. This Agreement may be executed in one or more identical counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Facsimile signatures upon this Agreement shall be deemed equivalent to original signatures for all purposes.

[signature page follows]

IN WITNESS WHEREOF, this Agreement has been executed by both Parties as of the Effective Date.

CLOUD ELEMENTS, INC.

By: ______________________________
Name: ____________________________
Title: ______________________________

Notices to CE:
Cloud Elements, Inc.
3858 Walnut Street, Suite 235
Denver, CO 80205
Attn: Chief Executive Officer or VP of Finance
Email: chris@cloud-elements.com

[LICENSEE NAME]

By: _____________________________
Name: ___________________________
Title: ____________________________

Notices to Licensee:
[LICENSEE NAME] [ADDRESS]
[ADDRESS]
Attn: [NAME and/or TITLE]
Email: [Contact Email address]

Licensee Billing Contact Information:

Name: [ _____________________________ ]
Address: [ _____________________________ ]
Email Address: [ _____________________________ ]
Phone Number: [ _____________________________ ]

EXHIBIT A

STATEMENT OF WORK OR ORDER FORM

EXHIBIT B

SUPPORT AGREEMENT

[INSERT APPROPRIATE SUPPORT AGREEMENT HERE]

EXHIBIT C

SERVICE LEVEL AGREEMENT

Agreement
Cloud Elements shall provide service levels and remedies for downtime (caused by defects or otherwise) to Licensee in accordance with the terms of this Service Level Agreement (“Service Level Agreement” or “SLA”). Capitalized terms not otherwise defined herein have the definitions given to them in that certain Master Services Agreement entered into between Licensee and Cloud Elements (“Agreement”).

Cloud Elements is committed to providing a highly available and secure service to support its licensees. This SLA provides rights and remedies in the event Licensee experiences service interruption as a result of failure of the Cloud Elements service or underlying service infrastructure. This SLA does not apply to any service interruption or downtime caused by any Third-Party Services (Salesforce.com, Marketo, QuickBooks, etc…) due to any reason outside of Cloud Elements’s control. To receive any required notices under this SLA, Licensee must subscribe with a valid email address at Cloud Elements’ status page.

Force Majeure Event
Notwithstanding anything to the contrary contained in this SLA or the Agreement, Cloud Elements shall not be liable for any failure of or delay in performance as a result of any force majeure event as set forth in Section 11.2 of the Agreement.

Emergency Maintenance
Licensee hereby acknowledges, understands and agrees that there may be instances where Cloud Elements may need to perform emergency maintenance and interrupt the provision of the Products or Services without notice in order to protect the integrity of the Products and/or Services due to security issues, virus attacks, spam issues or other unforeseen circumstances. These changes may happen immediately with little or no notification ahead of time; however, Cloud Elements will post the information to Cloud Elements status page promptly after or during such emergency maintenance.

Scheduled Maintenance
Cloud Elements may provide scheduled maintenance to the Products and/or Services, including but not limited to:

  • Providing support for on-going product and operational projects to ensure optimal performance of the Products and/or Services.
  • The deployment non-critical service packs or patches to the Products and/or Services.
  • Periodic redundancy testing of the Products and/or Services.

Cloud Elements reserves standard maintenance windows during the following times weekly, as applicable and dependent on the location of the Licensee’s data: in the European data center from 10:00 PM until midnight on Fridays; and in the US data center from 4:00 AM to 6:00 AM on Sundays. When possible, a notification of such scheduled maintenance will be posted on Cloud Elements’ status page at least 2 business days prior. These windows typically do not result in a lack of system availability. If Cloud Elements expects scheduled maintenance to cause system unavailability, due to, for example, a major database upgrade, Cloud Elements shall provide Licensee with at least 10 days’ notice provided that Licensee has duly registered an email address at Cloud Elements’ status page. Cloud Elements will use reasonable efforts to limit such instances to no more than 4 times annually during the following times: dependent on the location of the Licensee’s data: in the European data center from 10:00 PM on Fridays until 2:00 AM on Saturdays; and in the US data center from 4:00 AM to 8:00 AM on Sundays. All foregoing times based on coordinated universal time (“UTC”).

Boundaries and Exclusions
The availability metric, described below, shall not apply to performance issues caused by the following:

  • Overall Internet congestion, slowdown, or unavailability
  • Unavailability of third-party cloud-services provider
  • Unavailability of generic Internet services (e.g. DNS servers)
  • Endpoint downtime not due to any Cloud Elements connectivity
  • Force majeure events as described in Section 11.2 of the Agreement
  • Actions or inactions of Licensee (unless undertaken at the express direction of Cloud Elements) or third-parties beyond the control of Cloud Elements
  • A result of Licensee equipment or third-party computer hardware, software, or network infrastructure not within the sole control of Cloud Elements

Availability Metric
Cloud Elements uses a system to measure whether Products or Services are “Available” and publishes the results daily at status.cloud-elements.com. Licensee agrees that this system will be the sole basis for resolution of any dispute that may arise between Licensee and Cloud Elements regarding this SLA. “Service Unavailability” means the time during which the applicable Products or Services are unavailable after at least 10 consecutive 503 errors from API Calls made through such Products or Services are received.

Cloud Elements Service Availability” is calculated based on the following formula:
Cloud Elements Service Availability = (T – M – D) / (T – M) x 100%
       T = Total Monthly Minutes (The number of the days in the month multiplied by 1440 minutes per day)
       M = Service Unavailability during Scheduled Maintenance Time (as described above)
       D = Service Unavailability other than during Scheduled Maintenance Time

Cloud Elements Service Availability

Remedy/Service-Level Credits

Between 99.9% – 100%

Meets Goal/No Remedy

Between 99.5% – 99.9%

Five (5) day extension of the term of the MSA at no cost to Licensee

Less than 99.5 %

Ten (10) day extension of the term of the MSA at no cost to Licensee

Remedy Procedure

  • Licensee’s remedy and the procedure for obtaining Service-Level Credits under this SLA is as follows:
  • Licensee must open a support ticket at http://support.cloud-elements.com documenting the event within 5 business days of the Product or Service interruption
  • Licensee’s account must be in good standing with all invoices paid and up to date

Cloud Elements will review and confirm the information provided in the Support Ticket within 5 business days of receipt. If Cloud Elements cannot confirm such information, then Licensee and Cloud Elements agree to refer the matter to executives of each Party for resolution. If Cloud Elements determines that Cloud Elements is out of compliance with this SLA, Licensee will receive the amount of Service-Level Credits set forth above. The Service-Level Credit will be reflected in the Cloud Elements invoice to Licensee in the month following Cloud Elements confirmation of minutes of Downtime. Annual Service-Level Credits for Licensee are capped at 30 days per annum.