Terms of Use / Master Services Agreement

AMIGOCLOUD MASTER SERVICES AGREEMENT

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF THE APPLICATIONS AND SERVICES (“PRODUCTS”) OF AMIGOCLOUD, INC. (“AMIGOCLOUD”, “WE”, “US” OR “OUR”). THIS AGREEMENT ALSO GOVERNS ANY ACCESS TO FREE TRIALS OR BETA VERSIONS OF ANY OF OUR PRODUCTS.

BY ACCESSING AMIGOCLOUD PRODUCTS YOU ("YOU", "YOUR" OR “CUSTOMER”) AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU", "YOUR" OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS.

Notwithstanding the foregoing, You may not access the Products if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Products for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

1.  DEFINITIONS.

"Affiliate" means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.

“Confidential Information” has the meaning set forth in Section 10.

“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity. 

“Customer Data” means all data of Customer that passes through the Products and all data, text, files, and tracking information that Customer provides and generates (including report content) in conjunction with the Products.

“Customer Equipment” means Customer’s computer hardware, connected devices, software, and network infrastructure used to access the Products.

“Customer Purchase Order” means a purchase order generated by the Customer for Products and Professional Services.

“Documentation” means the description of the Products and Professional Services provided by AmigoCloud and available on AmigoCloud’s website at http://www.amigocloud.com and http://help.amigocloud.com.

“Extension Term” means each additional period (which is equal to the period of the most recent Initial Term or Extension Term) for the applicable Products that are extended pursuant to the terms of this Agreement.

“Initial Term” means the first term for the Products defined in Exhibit A, or if no such term period is defined, twelve (12) months, commencing on the Effective Date.

"Products" mean the AmigoCloud web-based Internet accessible service, applications, and all API access and/or services, including, as solely determined by AmigoCloud, any a) documentation and manuals relating thereto, and b) any modifications, updates, and upgrades of the forgoing that AmigoCloud may provide under this Agreement. 

“Professional Services” means the implementation, configuration training, or other professional services listed in Section 4.

“Support” has the meaning set forth in Section 7.

"Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.

“Term” means the Initial Term and any Extension Term applicable to each AmigoCloud Product.

"Updates" means all Product updates and enhancements that AmigoCloud generally makes available at no additional charge to its customers of its Products who are current in payment of applicable fees.

"Users" means Customer's and its Affiliates' employees, agents, contractors, consultants, or other individuals who are authorized by Customer to use the Products and/or whose information is transmitted through the Products.

2.  TERMS OF THE PRODUCTS. Subject to the terms of the Agreement, AmigoCloud grants Customer and its Affiliates a non-exclusive, non-transferable (except to a successor in interest as permitted hereunder) license to use the Products during the Term.  Customer’s right to use the Products is limited to use by its Users and other restrictions as provided.

3.  CUSTOMER RESPONSIBILITIES RELATING TO USE OF THE PRODUCTS. 

3.1  As between the parties, Customer is responsible for, (i) all activities conducted by its Users, (ii) obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access, run, or otherwise use the Productsand, (iii) ensuring that the Customer Equipment and any ancillary services are compatible with the Productsand comply with all configuration requirements set forth in the Documentation. 

3.2  Customer shall use the Products solely for its business purposes, in compliance with applicable law, and shall not:  (a) resell, sublicense, lease, time-share or otherwise make the Products available to any third party; (b) send or store infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights using the Products,; (c) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Products or the data contained therein; (d) modify, copy or create derivative works based on the Products; (e) reverse engineer the Products; (f) propagate any malicious code, virus, worms, Trojan horses, or other programming routine intended to damage any system or data; (g) interfere with or disrupt the integrity or performance of any Product or third-party data contained therein; (h) attempt to gain unauthorized access to any Product or its related systems or networks; (i)  permit direct or indirect access to or use of any Product in a way that circumvents a contractual usage limit; (j) copy a Product or any part, feature, function or user interface thereof; (k) frame or mirror any part of any Product, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation; (l) access the Products for the purpose of building a competitive product or service or copying its features or user interface; (m) reverse engineer any Product (to the extent such restriction is permitted by law); (n) use the Products, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis without AmigoCloud's prior written consent; or (i) permit access to the Products by a direct competitor of AmigoCloud. 

3.3  Any failure of Customer to comply with the obligations set forth in this Section 3 may be deemed a material breach of this Agreement. If Customer fails to comply with the obligations set forth in this Section 3, AmigoCloud may inform Customer thereof and reserves the right to suspend the Products until such failure is remedied.

3.4  Notwithstanding this Section 3, Customer and its Affiliates acknowledge that the Software includes or may include some software components that are licensed to Customer and its Affiliates under “free software” or “open source” licenses. To the extent stated in any applicable Free Software License, the terms of such licenses will apply in lieu of the terms of Section 3.1-3.3 of this Agreement.  To the extent the terms of any Free Software License prohibit any of the restrictions in this Agreement with respect to such components, such restrictions will not apply to such components.

 4.  PROFESSIONAL SERVICES. AmigoCloud provides Professional Services.In some circumstances, Professional Services will be agreed upon in a separate mutually executed statement of work that may specifically incorporates this Agreement by reference.

5.  OWNERSHIP.  

5.1  Customer shall retain all ownership rights in the Customer Data (as defined in Section 1) and Customer Confidential Information.  Except as otherwise expressly identified in a mutually executed statement of work, AmigoCloud shall have and retain all ownership rights in the Products and all work developed or created by AmigoCloud during the course of providing Support or Professional Services to Customer (if any). AmigoCloud hereby grants Customer a royalty-free, nonexclusive, license to use the foregoing on the same terms and conditions as the Products subject to any and all agreed upon fees.

5.2  AmigoCloud shall own any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the Products.

5.3  No license, right or interest in any AmigoCloud or Customer trademark, copyright, trade name or service mark is granted hereunder.

6.  FEES.  

6.1  Fees for Products are due as agreed at time of purchase and are effective during the Initial Term as specified. Any additional Fees that are calculated in arrears will be invoiced at the end of the month in which they were accrued.  Fees for any Extension Terms are due on the effective date of the renewal.  AmigoCloud may modify the Fees for any Extension Term upon notice, provided, that any increase in Fees noticed during any Term shall not take effect until the beginning of the next Term.  Fees may be paid in any of the then current method(s) provided by AmigoCloud.

6.2  Payment obligations are non-cancelable and, except as expressly provided in this Agreement, upon payment, all payments made by Customer are non-refundable. All undisputed fees due hereunder shall be due and payable within thirty (30) days of receipt of invoice. Any payment not received from Customer by the due date may accrue (except for amounts then under reasonable and good faith dispute) late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.  Failure to make payments in accordance with this Section may result in suspension of Customer's ability to access the Products until payment is made.

6.3  Unless otherwise provided, AmigoCloud’s fees do not include any Taxes.  Customer is responsible for paying all Taxes, including, but not limited to sales, use, GST, and VAT taxes, associated with its purchases hereunder, excluding Taxes based on AmigoCloud’s net income or property.  If AmigoCloud charges such Taxes for which Customer is responsible, the tax amount billed shall be paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.  All applicable taxes not billed by AmigoCloud shall be the responsibility of the Customer to remit to the appropriate tax authorities as necessary.

6.4  Customer shall reimburse AmigoCloud for all reasonable pre-approved travel and related expenses incurred by AmigoCloud in performing Professional Services at Customer’s location. Customer shall be responsible for its own travel and out-of pocket expenses associated with any travel related to the Product or Professional Services. 

7. SUPPORT. AmigoCloud shall provide Support provided Customer is current on payment of all Fees. Support shall be provided in accordance with the Documentation.

8.  WARRANTIES

8.1  Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder.

8.2  AmigoCloud warrants (i) it will provide the Professional Services in a professional manner consistent with industry standards and practices; and (ii) that for a period of thirty (30) days after completion, the Professional Services will conform to the representations in Section 4. As Customer’s sole and exclusive remedy and AmigoCloud’s entire liability for any breach of the foregoing warranty, AmigoCloud will correct such breach or, if unable to cure such breach return such payment or portion of payment applied to the Professional Services failing to conform to the representations in Section 4. 

8.3  AmigoCloud warrants that the Products will substantially conform in all material respects in accordance with the Documentation.  Customer will provide prompt written notice of any non-conformity.  This warranty does not apply to: (a) Products that have been modified by any party other than AmigoCloud; or (b) Products that have been improperly installed or used in a manner other than as authorized under this Agreement to the extent such modification(s) or improper installation cause the Products to be nonconforming. As Customer’s sole and exclusive remedy and AmigoCloud’s entire liability for any breach of the foregoing warranty, AmigoCloud will fix, provide a work around, or otherwise repair or replace the nonconforming portion of the Products, or, if AmigoCloud is unable to do so, terminate the license for the Products and return the Product Fees paid to AmigoCloud for the period beginning with Customer’s notice of nonconformity through the remainder of the Initial Term or then-current Extension Term, as applicable.

8.4  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AMIGOCLOUD DOES NOT WARRANT THE OPERATION OF THE PRODUCTS AND RESULTS OF THE PROFESSIONAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

9.  PATENT AND COPYRIGHT INDEMNITY.  

9.1  AmigoCloud shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the Products as contemplated hereunder infringes the U.S. intellectual property rights of such third party, provided that Customer (a) promptly gives written notice of the Claim to AmigoCloud; (b) gives AmigoCloud sole control of the defense and settlement of the Claim (provided that AmigoCloud may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) provides to AmigoCloud, at AmigoCloud's cost, all reasonable assistance.

9.2  AmigoCloud may, at its sole option and expense:  (i) procure for Customer the right to continue using the Products under the terms of this Agreement; (ii) replace or modify the Products to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing Products and refund Customer the prepaid fees for the remainder of the Initial Term or then-current Extension Term after the date of termination.  

9.3  AmigoCloud shall have no liability for any Claim to the extent the Claim is based upon (i) the use of the Products in combination with any other product, service or device not furnished, recommended or approved by AmigoCloud, if such Claim would have been avoided by the use of the Products, without such product, service or device; or (ii) Customer’s use of the Products other than in accordance with this Agreement.

9.4  The provisions of this Section 9 set forth AmigoCloud’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.

9.5  Customer shall defend, indemnify and hold AmigoCloud harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against AmigoCloud by a third party alleging that the Customer Data infringes the intellectual property rights of, or has otherwise harmed, such third party; provided, that AmigoCloud (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases AmigoCloud of all liability); and (c) provides to Customer, at Customer's cost, all reasonable assistance.

9.6  The provisions of this Section 9 set forth Customer’s sole and exclusive obligations, and AmigoCloud’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.

10.  CONFIDENTIALITY. 

10.1  As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including pricing and other terms not otherwise made public available by AmigoCloud. Without limiting the generality of the foregoing, the Products and any matters related thereto, including without limitation, the development status of the Products, functionality of the Products, appearance of the Products, content and flow of the Products, the method and pattern of user interaction with the Products, Documentation, business plans, marketing plans, technology and technical information, and business processes shall be deemed the Confidential Information of AmigoCloud.  Additionally, Customer feedback, bug reporting and notices of non-compliance shall be deemed the Confidential Information of AmigoCloud and may not be disclosed unless AmigoCloud consents to such disclosure in writing. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.

10.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). AmigoCloud represents and warrants that it will maintain the confidentiality of Customer Data in accordance with all applicable laws and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the Products or Professional Services to Customer.  Notwithstanding the foregoing, 1) AmigoCloud may use, for its business purposes, data, text, and files that pass through and/or may be generated by the use of the Products in anonymized format and 2) if Customer enabled “sharing” or designates any data as “public” in the AmigoCloud Product settings, Customer acknowledges and agrees that any corresponding Customer Data may be shared and used in accordance with AmigoCloud’s then current terms.  Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.

10.3  If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure.

10.4  Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information (including the Products) as long as it remains confidential and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.

11. LIMITATION OF LIABILITY. 

11.1EXCEPT (i) FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS; (ii) IN THE EVENT OF EITHER PARTY’S UNAUTHORIZED USE, DISTRIBUTION OR DISCLOSURE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY; OR (iii) EITHER PARTY’S MATERIAL BREACH OF SECTION 10 (“CONFIDENTIALITY”), IN NO EVENT SHALL AMIGOCLOUD’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION FEES PAID TO AMIGOCLOUD DURING TWELVE MONTHS PRIOR TO WHEN THE CLAIM ACCRUED.  

11.2  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. TERM AND TERMINATION. 

12.1 This Agreement commences on the date the Customer receives access to AmigoCloud Products or the date on which one Party first receives access to Confidential Information of the other Party, whichever is earlier, and continues until all licenses granted in accordance with this Agreement have expired or have been terminated. Unless otherwise agreed in writing, this Agreement will automatically renew under the terms set forth herein unless either party gives notice to the other party of its desire not to renew at least thirty (30) days prior to the date of renewal.

12.2 A party may terminate this Agreement for cause: (i) upon 60 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; and (iii) as otherwise provided herein. 

12.3 The parties’ rights and obligations under Sections 5, 6, 8.4, 9, 10, 11, 12.4, and 13 shall survive termination of this Agreement.

12.4  Upon the effective date of termination of this Agreement, Customer’s license to use the Products will cease and AmigoCloud may delete all backed-up Customer Data from the AmigoCloud systems within sixty (60) days of termination.

13.  General

13.1  The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.

13.2  Notices shall be in writing, sent using a recognized private mail carrier or the United States Postal Service and effective on proof of delivery.

13.3  Each party may include the other's name and logo in its customer or vendor lists as well as its press, marketing and promotional materials.

13.4  No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and AmigoCloud. To the extent of any conflict between this Agreement and any other agreement or understanding between the Parties, this Agreement shall prevail unless expressly stated otherwise through direct reference to this Agreement. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than a statement of work, or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

13.5  No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.

13.6  Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party in performing any of its obligations, and (ii) is beyond the control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against (“Force Majeure Event”).

13.7  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, AmigoCloud will refund Customer any prepaid fees covering the remainder of any Terms. Any attempted assignment in breach of this Section shall be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.8  Each party agrees to comply fully with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Products.

13.9  This Agreement shall be governed exclusively by the laws of the state of California, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.  The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, for resolution of any disputes arising out of this Agreement.