NON-PRODUCTION ENVIRONMENT AGREEMENT

Updated on September 25, 2019

TERMS AND CONDITIONS

IMPORTANT – READ THIS CAREFULLY BEFORE USING OR ACCESSING THESE PROPRIETARY SERVICES.

CUSTOMER ACCEPTS THIS AGREEMENT BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT IN A SEPARATE DOCUMENT REFERENCING OR INCORPORATING THE TERMS OF THIS AGREEMENT, (3) PARTICIPATING IN A PILOT PROGRAM OR USING A NON-PRODUCTION SERVICE (DEFINED BELOW), (4) ACCEPTING A PROPOSAL FOR NON-PRODUCTION SERVICES, (5) SUBMITTING A CREDIT CARD PAYMENT FORM, OR (6) OTHERWISE ACCESSING OR USING THE NON-PRODUCTION SERVICES.

THESE TERMS OF SERVICE (“TERMS”), ALONG WITH THE APPLICABLE SEPARATE DOCUMENT REFERENCING OR INCORPORATING THESE TERMS DURING ANY ORDERING OR ACCEPTANCE PROCESS (INCLUDING ANY ONLINE ACCOUNT CREATION OR CREDENTIAL PROVISIONING) (“ORDER”) AND ANY OTHER DOCUMENTS INCORPORATED BY REFERENCE (COLLECTIVELY, THE “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 NON-PRODUCTION SERVICES. YOU ARE ENTERING INTO THIS AGREEMENT FOR CUSTOMER’S ACCESS AND USE OF THE NON-PRODUCTION 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 NON-PRODUCTION 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 NON-PRODUCTION 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 NON-PRODUCTION SERVICES AND ANY EARLIER AGREEMENT IS HEREBY TERMINATED.

This Agreement is entered into and effective as of the Commencement Date (defined below). The parties agree as follows:

1.   NON-PRODUCTION SERVICES. “Non-Production Services” means any non-production version of Cloud Elements’ integration platform as a service (“iPaaS”) solution and access to and use of any version of Cloud Elements’ software, and other applications, features, functions, or technology that Cloud Elements has designated as test, non-production, staging environment, development environment, free trial, proof of concept, pilot, beta, limited release, developer preview, or other similar description (“Non-Production Environment”). Cloud Elements may make Non-Production Services available to Customer as set forth in this Agreement. Any use of Non-Production Services is subject to this Agreement. Non-Production Services are for non-production, testing, and/or evaluation purposes only, and are provided as-is, and may not be supported. Subject to the terms and conditions of this Agreement, Cloud Elements grants Customer a non-exclusive, non-transferable, limited right to access and use the Non-Production Services solely for the non-production purposes and/or for purpose of evaluating the Cloud Elements iPaaS solution in accordance with the terms and conditions of this Agreement. Cloud Elements’ direct competitors are prohibited from accessing the Non-Production Services, except with Cloud Elements prior written consent in each instance. In addition, Non-Production Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

2.   THIRD PARTY SERVICES. The Services may utilize public APIs for access and connectivity to the cloud applications, cloud service endpoints, data services, software, and content of third parties to which Customer may access and connect using the Services (“Third Party Services”). 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. In order to access and use a Third Party Service, such third party may require that Customer enter into a separate agreement with such third party (“Third Party Agreement”) in order to access and use the applicable Third Party Service and obtain additional consents to connect the Third Party Service to the Non-Production Services.

3.   COMPENSATION. Customer shall pay the fees set forth in the Order (“Fees”) in accordance with terms set forth in the applicable Order. If no Fees are set forth in an Order, Customer is receiving a limited “30 Day Free Trial.” 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 Non-Production Services requested by Customer that are not set forth in the 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.

4.   TERM AND TERMINATION. The term of this Agreement shall begin on the date set forth in the Order and continue until expiration of the Non-Production Services period specified in the Order (“Term”). If no Term is set forth in an Order, the Term shall be 30 days, unless extended by Cloud Elements in its sole discretion. A party may terminate this Agreement by providing the other party at least 5 business days prior written notice. Cloud Elements may terminate this Agreement upon notice if Customer breaches any material provision of this Agreement. Cloud Elements will be entitled to payment for the portion of the Non-Production Services in progress or completed as of the date of termination.

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.

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 under subject to 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   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 Non-Production Environment, and all API integrations that enable a connection into a specific cloud application or cloud service endpoint whether existing in the Non-Production Environment or built using the Non-Production Environment (“Elements”) and customizations and enhancements of the foregoing 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.

6.2   Restrictions. 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 Non-Production Environment or any portion thereof, (b) use the Non-Production Environment or any APIs accessed through the Non-Production Environment for any illegal, unauthorized or otherwise improper purposes; (c) modify or make derivative works of any part of the Non-Production Environment or; (d) access the Non-Production Environment in order to build a similar or competitive product or service; (e) 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.

6.3   General Skills and Knowledge. 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 Non-Production Services, including, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Cloud Elements.

6.4   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.

6.5   Privacy Policy. Cloud Elements respects the privacy of is users. Cloud Elements collects, uses and discloses information about Customer in accordance with the Cloud Elements Privacy Policy located on the Cloud Elements website.

7.   WARRANTY DISCLAIMER. THE NON-PRODUCTION SERVICES ARE PROVIDED SOLELY ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE NON-PRODUCTION SERVICES IS AT ITS SOLE RISK. CLOUD ELEMENTS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL 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 NON-PRODUCTION SERVICES. CLOUD ELEMENTS DOES NOT WARRANT THAT THE NON-PRODUCTION 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, 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 SHALL IN NO EVENT EXCEED THE GREATER OF (A) THE AMOUNT PAID OR OWED BY CUSTOMER TO CLOUD ELEMENTS FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY OR (B) $1000. THE LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION SHALL NOT APPLY TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTIONS 5 OR 6.

9.   MISCELLANEOUS PROVISIONS

9.1   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.

9.2   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.

9.3   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.

9.4   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.

9.5   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 Non-Production Services.

9.6   Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. 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.

9.7   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).

9.8   Entire Agreement. This Agreement, including any Order and any exhibits or attachments thereto, constitutes 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 the party to be charged.