Master Service Agreement
Cloud Elements Inc.
Cloud Elements Inc.
IPAAS SERVICES AGREEMENT
TERMS AND CONDITIONS
IMPORTANT – READ THIS CAREFULLY BEFORE USING OR ACCESSING THIS PROPRIETARY SERVICE.
These Terms of Service (“Terms”), along with the Order (defined below) and other documents into which these Terms are incorporated (collectively, “Agreement”) create a legal agreement between Cloud Elements, Inc., a Delaware corporation (“Cloud Elements”) and the business entity or person for whom you (“You”) are acting identified on the Order (“Customer”) as the entity to whom access to the integration platform as a service (“iPaaS”) solution as described in the Order and this Agreement is provided by Cloud Elements. This Agreement governs Customer’s access to and use of the System (defined below) and the website located at https://cloud-elements.com/ including all related webpages and subpages (collectively, the “Site”) and the iPaaS solution which Cloud Elements agrees to provide to Customer through the Site (the “Service” as further defined below). You are entering into this Agreement for Customer’s use of the Service for Customer’s own business purposes in accordance with this Agreement. You are not agreeing to this Agreement on behalf of anyone other than Customer. 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 You only on condition that You accept all the terms in this Agreement. Any different or additional terms and conditions set forth in any purchase order, confirmation, statement of work, order form or similar form, even if signed by the parties after the Effective Date of this Agreement, 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 you or 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, take precedence over any such earlier agreement. This Agreement shall be the entire agreement between the parties regarding the Services and the terms of the earlier agreement are hereby terminated and shall have no effect for the Services.
BY AGREEING TO AN ORDER, CLICKING “I AGREE”, OR BY OTHERWISE ACCESSING THE SITE OR USING THE SERVICE YOU AND CUSTOMER AGREE TO BE BOUND BY THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE THAT YOUR SUBMISSION OF THE CREDIT CARD PAYMENT FORM SERVES AS THE CUSTOMER’S AGREEMENT TO THESE TERMS.
This Agreement is entered into and effective as of the date you place an Order and thereby accept this Agreement (“Agreement Effective Date”). The parties agree as follows:
1.1 “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.
1.2 “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).
1.3 API Call” means an authenticated API interaction facilitated in connection with the Services.
1.4 “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.
1.5 “Element” means an API integration that enables a connection into a specific cloud application or cloud service endpoint.
1.6 “Software” means Cloud Elements proprietary software programs made available by Cloud Elements as part of the System, including any modified, updated, or enhanced versions of such software that may become part of the Software.
1.7 “Support Agreement” means the Cloud Elements standard terms for support services available on the Site or attached to this Agreement.
1.8 “User” means any individual employee or contractor of Customer or its Affiliates for whom access to the System is authorized by Customer.
2.1 General Description of Services. Cloud Elements has created a proprietary cloud API integration platform that enables developers to publish, integrate, aggregate and manage all of their application programming interfaces (each, an “API”) through a unified platform (“Platform”) that, together with other technology (collectively, the “System”) to which Cloud Elements provides access to Users allow them to quickly connect entire categories of cloud services using uniform APIs or simply synchronize data between multiple cloud services using its innovative integration toolkit (“Services”). Services includes the support services provided by Cloud Elements in accordance with the Support Agreement.
2.2 Scope of Agreement. This Agreement governs Cloud Elements’ provision of and Customer’s access to and use of the specific Services described in each Order incorporated into this Agreement. “Order” means the initial Services order entered into between the parties into which these Terms are incorporated by this reference, and such additional Services orders as may be mutually agreed to and signed by both parties from time to time under this Agreement. Order may also mean the online ordering process on Site through which Customer orders the Services.
2.3 Provision of Services. Subject to the terms and conditions of this Agreement, Cloud Elements will provide the Services to Customer pursuant to the applicable Order and this Agreement. The Services shall begin on Service Activation Date and continue during the Order Term. “Services Activation Date” means the “Effective Date” set forth in the applicable Order or, if no “Effective Date” is set forth in the Order, the date on which Cloud Elements makes the Services available to and ready for use by Customer as detailed in the Order.
2.4 Rights. Cloud Elements hereby grants Customer a license to access and use the System solely for Customer’s or Customer’s Affiliates’ business purposes and in accordance with the Documentation and the terms and conditions of this Agreement. Under the rights granted to Customer under this Agreement, Customer may permit employees and contractors of Customer’s Affiliates and Customer’s customers to become Users in order to access and use the System in accordance with this Agreement; provided that Customer shall be liable for the acts and omissions of all Customer’s Affiliates, Customer’s customers, 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 System, Software or Documentation except as expressly permitted under this Agreement.
2.5 Third-Party Services. Customer hereby acknowledges that the Services utilize public APIs for access and connectivity to certain third-party applications, data services, software, and content (“Third-Party Services”) and that 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 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, Customer hereby expressly agrees that Cloud Elements is not liable for any downtime, discontinuation, or any other issues caused by the Third-Party Services that are outside Cloud Elements reasonable control. Customer 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 the Service.
3. FEES AND PAYMENT TERMS
3.1 Fees and Expenses. Customer shall pay all agreed upon fees for the Services set forth in the applicable Order (“Services Fees”) in accordance with terms set forth in the applicable Order.
3.2 Payment Terms. Unless the applicable Order provides otherwise, Customer will pay Services Fees within 30 days after Customer’s receipt of the applicable invoice for such Services. Should Customer fail to pay any past due undisputed invoice within 10 days after receipt from Cloud Elements of such past due notice, Cloud Elements may revoke or suspend the Services upon written notice to Customer. All payments received by Cloud Elements are non-refundable except as otherwise expressly provided in this Agreement. All payments will be made in United States dollars.
3.3 Overage. If Customer exceeds the capacity of AAIs purchased by Customer as set forth on an applicable Order, then Cloud Elements shall provide Customer with: (a) an invoice for the additional capacity; and (a) a report detailing the quantities of the AAIs used on monthly basis during the preceding calendar quarter (together, the “Reports”) within 30 days after the end of the applicable calendar quarter. If Customer 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.
3.4 Late Payments. 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 and will have 5 business days to respond to the notification. If Customer fails to respond to the past due notification and make arrangements to bring the account current within the 5 business days of notification, Cloud Elements may revoke or suspend the provision of all Services until such time as Customer brings its account completely current. If Customer continues to be habitually delinquent in its payments, Cloud Elements may, upon written notice to Customer, modify the payment terms 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.
3.5 Taxes. All fees charged for Services are exclusive of all taxes and similar fees now in force, enacted or imposed in the future on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes solely based on Cloud Elements’ net income.
4. TERM AND TERMINATION
4.1 Term of Agreement. The initial term of this Agreement shall begin on the Effective Date and expire on the later of 12 months after the Effective Date or the date as specified in an Order (“Initial Term”), unless a party terminates this Agreement earlier as provided in this Section 4. 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 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.
4.2 Early Termination. Unless otherwise specified in this Agreement, in the event of early termination of this Agreement for any reason other than termination by Customer pursuant to Section 4.3, Customer shall pay Cloud Elements all of the Services Fees owed by Customer for the remainder of the Term as set forth in Section 3.
4.3 Termination for Cause. A party may terminate this Agreement if the other party breaches any material term or condition of the Agreement and fails to cure such breach within 30 days after receipt of written notice of such breach; except that, in the case of Customer’s failure to pay Services Fees, which must be cured within 5 days after receipt of written notice from Cloud Elements.
4.4 Effect of Termination. Upon the effective date of termination of this Agreement: (a) each Order shall terminate and Cloud Elements will immediately cease providing the Services; and (b) any and all payment obligations of Customer under and Order will immediately become due and (c) within 30 days after such termination, each party will return or destroy all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement. Sections 1, 3, 4.4, 5, 6, 8, 9, and 10 and all payment obligations shall survive termination of this Agreement.
5.1 Nondisclosure. Each party (“Receiving Party”) acknowledges that it will have access to certain confidential information of the other party (“Disclosing Party”) concerning the Disclosing Party’s business, plans, vendors, employees, customers, technology, products, and other confidential information of Disclosing Party (collectively, “Confidential Information”). Confidential Information includes all information in tangible or intangible form that is marked or designated as confidential by the Disclosing Party or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information of Cloud Elements includes the Platform. Receiving Party agrees that it will not (a) use the Disclosing Party’s Confidential Information in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement, (b) disclose to any third party (except as expressly permitted by this Agreement, required by law or to such party’s attorneys, accountants and other advisors as reasonably necessary or contractors that are bound by written agreements at least as restrictive as this Agreement) any Confidential Information of the Disclosing Party. Receiving Party will protect the confidentiality of the Confidential Information of the Disclosing Party using precautions that are at least as stringent as it takes to protect its own Confidential Information, but in no case will it use less than reasonable precautions to protect such Confidential Information.
5.2 Exceptions. Receiving Party will have no obligations of confidentiality under Section 5.1 for information that is proven by Receiving Party: (a) to have been known to Receiving Party prior to its receipt from Disclosing Party from a source other than one having an obligation of confidentiality to Disclosing Party; (b) to have become publicly known, except through a breach of this Agreement by Receiving Party; or (c) to have been entirely independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party. Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or applicable law, provided that it gives Disclosing Party reasonable prior written notice sufficient to permit Disclosing Party to contest such disclosure.
6. INTELLECTUAL PROPERTY
6.1 Ownership. As between the parties, Cloud Elements owns the Platform. No rights in the Platform are granted to Customer and all rights, title and interest in the Platform, including all rights in patents, trademarks, trade names, copyrights, trade secrets, know-how, data (including all applications therefor), and all proprietary rights under the laws of the United States, any other jurisdiction or any treaty (“IP Rights”) remain with Cloud Elements. The System and all IP Rights therein, are the sole property of Cloud Elements and its licensors and suppliers. All rights in and to the System not expressly granted to Customer in this Agreement are reserved by Cloud Elements and its licensors and suppliers.
6.2 General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, 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.
6.3 Usage Data. Cloud Elements may publish, share or otherwise distribute, to any party, analytics, statistics or other data related to Customer’s use of the API, web service, portal or proxy usage (“Usage Data”), provided that such Usage Data are aggregated with the data from other Cloud Elements customers or users in a manner that does not allow usage data about Customer to be separated from the aggregate data and identified as relating to Customer.
6.4 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 any Platform or any portion of the System, (b) use the API for any illegal, unauthorized or otherwise improper purposes; (c) modify or make derivative works of any part of the Platform or; (d) access the API in order to build a similar or competitive product or service; or (e) use the Service 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 API documentation or this Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 Performance Warranty. Except as stated below, during the Term, Cloud Elements warrants that the Services as delivered will perform substantially as described in the associated Documentation when operated in accordance with the usage guidelines set forth in such Documentation. Cloud Elements will use reasonable efforts to correct any Service defect reported by Customer during the Term in accordance with the Support Agreement. If Cloud Elements is unable to correct a properly reported Service defect, Cloud Elements will, upon request by Customer, provide remedies in accordance with the Cloud Elements’ Service Level Agreement located on the Site. Cloud Elements shall have no obligation to undertake any action for any defect 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 Service defects or nonconformity with this warranty shall be as set forth in this Section 7.1.
7.1 Disclaimer of Third Party Actions. Customer acknowledges that Cloud Elements does not and cannot control the flow of data to or from the Service or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Although Cloud Elements will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events with respect to Customer’s use of the Service, Cloud Elements cannot guarantee that such events will not occur. Accordingly, Cloud Elements disclaims any and all liability resulting from, or related to, such events.
7.3 Representations and Warranties by Customer. Customer understands and acknowledges that Cloud Elements is not the source of any data and Customer’s rights and obligations regarding the access and use of data through the Service is subject to the applicable agreements of the third party data providers that are the source of the data (“Third Party Agreements”) to which Customer must agree in order to access and use the data. Accordingly, Customer represents and warrants that: (a) that it shall comply with and shall not violate any Third Party Agreements; and (b) that it will not violate any applicable law or regulation, or cause a breach of any agreement with any third party, in connection with the performance of its obligations and use of the Services. 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 immediately 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 will provide notice and opportunity to cure. Once cured, at Cloud Elements’ discretion, Cloud Elements will use reasonable efforts promptly restore the Services.
7.4 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, INCLUDING, BUT NOT LIMITED TO, 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 SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CLOUD ELEMENTS’ TOTAL LIABILITY TO CUSTOMER FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID OR OWED BY CUSTOMER TO CLOUD ELEMENTS FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
9.1 Claims Against Customer. Cloud Elements will defend, at its own expense, any claim, suit or action brought against Customer by a third party to the extent that such claim, suit or action is based upon an allegation that the Platform, when used in accordance with the terms and condition of this Agreement, infringes the intellectual property rights of such third party (“Customer Claim”), and Cloud Elements will indemnify and hold Customer harmless from and against liability incurred by Customer that is specifically attributable to such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Cloud Elements in writing of such Customer Claim; (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. Notwithstanding the foregoing, Cloud Elements will have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon: (1) any use of the System not in accordance with this Agreement; (2) any use of the System in combination with products, equipment, software, or data not made available by Cloud Elements if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the System by any person other than Cloud Elements or its authorized agents or subcontractors. Cloud Elements will have no obligation under this Section 9.1 or otherwise with respect to any claim based upon the use by Customer of any Data accessed through the Service to the extent such claim is not based on the Service itself: 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 will defend, at its own expense, any claim, suit or action against Cloud Elements brought by a third party to the extent that such claim, suit or action, in connection with the performance of Customer’s obligations and use of the Services, is based on, (i) Customer’s failure to comply with or violation of any Third Party Agreements (ii) Customer’s failure to comply with or violation of any applicable law or regulation, (iii) Customer’s infringement of any third party’s IP Right and (iv) use by Customer of any data accessed through the Service (each, a “Cloud Elements Claim”), and Customer will indemnify and hold Cloud Elements harmless from and against liability incurred by Cloud Elements that is specifically attributable to such Cloud Elements Claim or those costs and damages agreed to in a monetary settlement of such Cloud Elements Claim. The foregoing obligations are conditioned on Cloud Elements: (a) promptly notifying Customer in writing of such Cloud Elements Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense.
10. MISCELLANEOUS PROVISIONS
10.1 Force Majeure. Except for Customer’s obligation to make payments to Cloud Elements, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, terrorism, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, 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.
10.2 Government Regulations. Customer will not 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.
10.3 No Third Party Beneficiaries. Cloud Elements and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer.
10.4 Governing Law; Dispute Resolution. This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of Colorado, USA without giving effect to any law that would result in the application of a different body of law. The United Nations Convention on the International Sale of Goods is excluded. Any action or proceeding arising from or relating to this Agreement will be brought in the federal or state courts in Denver, Colorado, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought by a party to enforce the Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
10.5 Severability; Waiver. If any provision of this Agreement is held invalid by a court or judicial body, then the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach in this Agreement will not constitute a waiver of any subsequent breach or default and will not negate the rights of the waiving party.
10.6 Assignment. Neither party may assign or transfer this Agreement nor any of its rights under this Agreement without the other party’s prior written consent which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party shall have the right to assign or transfer this Agreement to a successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or transfer or attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
10.7 Notice. Any notice required or permitted to be given under this Agreement shall be delivered by hand, deposited with an overnight courier, sent by email, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the applicable Order or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
10.8 Relationship of Parties. Cloud Elements’ and Customer’s relationship is solely that of independent contractors, and this Agreement will not establish any partnership, joint venture, employment, franchise or agency between Cloud Elements and Customer. Neither Cloud Elements nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
10.9 Entire Agreement; Counterparts; Originals. This Agreement, including all applicable Orders, addenda, exhibits and attachments, constitutes the sole, final and entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous understandings, written and oral, regarding such subject matter. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may only be amended by a written document signed by authorized representatives of Cloud Elements and Customer. Any terms and conditions agreed to in a mutually agreed upon and executed addendum shall be binding on both parties. The provisions of any such addendum shall govern and take precedence over any conflict or inconsistency between the provisions of this Agreement and the provisions of any such addendum.