Master Services Agreement
Last updated: Nov 14, 2022
This Master Services Agreement (“Agreement”) is between CloudSaver, Inc., a Delaware corporation having a principal place of business at 9401 Indian Creek Parkway, Suite 1500, Overland Park, KS 66210 (“CloudSaver”) and you or the entity or organization that you represent (“Customer”). This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Services (as defined below), (2) when you click an “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (3) when you enter into an Order Form (as defined below) with CloudSaver (the “Effective Date”).
WHEREAS CloudSaver is in the business of providing software and professional services that assist companies with the management, configuration, and cost optimization of cloud infrastructure environments.
WHEREAS Customer desires to engage CloudSaver to perform services for Customer on the terms and conditions, and subject to the rights of termination hereinafter set forth, and Customer is willing to accept such engagement on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Capitalized terms not otherwise defined in this Agreement will have the respective meanings assigned to them immediately below:
- “Account Data” means information about Customer that Customer provides to CloudSaver in connection with the creation or administration of its CloudSaver account, such as first and last name, username, and email address of an Authorized User or Customer’s billing contact. Customer shall ensure that all Account Data is current and accurate at all times during the applicable Order Term, and shall in no event include Sensitive Information in Account Data.
- “Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
- “API” means an application programming interface referenced in the Documentation that CloudSaver maintains and makes available to Customer in connection with the Services.
- “Cloud Environment” means the specific provider accounts on which Customer authorizes CloudSaver to perform Services.
- “Customer Credentials” means properly enabled single sign-on for Customer’s accounts, and secured access passwords, keys, tokens, or other credentials used by Customer in connection with the Services.
- “Customer Data” means data from Customer’s Environment that are submitted for Processing by the Services.
- “Pro-Rated Refund” means a refund to Customer of a pro rata share of any unused amounts prepaid by Customer under the applicable Order for the Services on the basis of the remaining portion of the current Order Term or Renewal Order Term.
- Consulting Services
CloudSaver shall provide the services described in one or more purchase schedule, order form or statement of work (the “Order Form”) executed by CloudSaver and Customer (collectively the “Parties”) and incorporated into this Agreement by this reference (collectively, the “Services”). Customer agrees to provide assistance and cooperation to meet any client obligations listed on any Order Form. Customer agrees to grant CloudSaver sufficient access and permissions within their cloud environment to perform the Services. Customer grants CloudSaver permission to collect environmental, operational, and other data from their cloud environment to the extent it is necessary to deliver the Services, including the deployment of approved software agents and other services offered by Amazon Web Services, Microsoft Azure, Google Cloud Platform, or other similar provider (each a “Cloud Provider”) necessary to collect such data. Customer grants CloudSaver permission to make changes to Cloud Environment to the extent they are related to delivering Services.
1.a. Fees; Payment Terms. To provide the Services and provide access to related dashboards, cost analytics and reporting reflecting the results of the Services (“Reports”), CloudSaver uses proprietary software (“Software”), know-how and information that embody methods, algorithms, inventions, information, logos, and other elements that is used to provide our Services and that are protected under US patent, trademark, copyright, or trade secret law. CloudSaver and its licensors own the Software, Reports, and all content in the Reports (including all information, artwork, text, trademarks, trade dress, and report formatting) and all associated intellectual property. Customer may not rent, lease, sell, or sublicense any part of the Software or Reports or attempt to reverse engineer, disassemble, decompile, or access the source code in the Software or Reports. CloudSaver grants Customer a limited, non-exclusive, revokable, and non-transferable license for Software, which may only be used during the Term in connection with the Services.
1.b. CloudSaver Platform. As between the Parties, Customer controls Customer’s Environment and its individual Customer Components. Customer will be able to use the Free-Trial Services by establishing a Connection. By implementing a Connection to a Customer Component, Customer hereby grants to CloudSaver the right, and is expressly instructing CloudSaver, to access and interoperate with that Customer Component during the Free-Trial Term in order to provide and support the Free-Trial Services. Customer is responsible for complying with all applicable Third-Party Terms.
1.c. CloudSaver Services; Warranty; Exclusive Remedy. During the Term, CloudSaver will provide the Services in a good, professional, and workmanlike manner in accordance with the terms of this Agreement and any Order Form and in accordance with all applicable laws. CloudSaver will correct any purported material breach of this warranty by CloudSaver within thirty (30) days after receiving written notice from Customer concerning such material breach. In the event such noncompliance is not corrected within such thirty (30) day period, Customer may immediately terminate Agreement and CloudSaver shall refund Customer all amounts paid by Customer for the remaining duration of Agreement. This will be Customer’s sole remedy for any purported breach by CloudSaver with respect to the warranty set forth herein. The Services remedy is exclusive and in lieu of all other express or implied warranties of any kind, whether written, oral, or implied, regarding the services, including any implied warranty of title, merchantability, non-infringement or fitness for a particular purpose, and warranties implied from a course of dealing or usage of trade, all of which CloudSaver disclaims.
1.d. CloudSaver Attorney Fees and Court Costs. If CloudSaver files suit to enforce its rights under this Agreement, in addition to other remedies it may have under this Agreement, CloudSaver is entitled to an additional award for its reasonable attorney fees and costs incurred enforcing its rights under this Agreement.
The term of this Agreement will be from the execution date below through the date of the last active Order Form. The term of each Order Form will be designated on the Order Form. Each Order Form will renew as is stated on the Order Form. If no term is stated in the Order Form, then the term of the Order Form will be 12 months. The term will auto renew annually unless affirmatively terminated by either party consistent with Section 3.
Either Party may terminate this Agreement for breach of a material obligation in this Agreement, in writing, if, after providing written notice to the defaulting Party of such breach, such defaulting Party fails to cure such breach within thirty (30) days thereafter. If CloudSaver reasonably believes the software or services are being misused or misappropriated, then CloudSaver can terminate this Agreement immediately with no notice. Sections 4 through 7 of this Agreement (as well as CloudSaver’s rights with respect to any amounts owed by Customer), will survive the termination or expiration of this Agreement; and (b) the provisions of this Agreement applicable to any Order Form outstanding at the time of the termination or expiration of this Agreement will survive such termination or expiration until such Order Form has been performed or otherwise terminated by the Parties in writing.
- Mutual Indemnity
4.a. CloudSaver agrees to defend, indemnify and hold harmless Customer, its Affiliates and their employees, contractors, agents, officers and directors (collectively, “Customer Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (collectively, “Losses”) arising out of or related to any legal claim, suit, action or proceeding (each, an “Action”) by a third party alleging use of the Consulting Services as permitted under this Agreement infringes such third party’s United States patent or copyright, or misappropriates such third party’s trade secrets (each, a “Customer Infringement Claim”).
4.b. If the Consulting Services become, or in CloudSaver’s opinion are likely to become, the subject of a Customer Infringement Claim, CloudSaver may in its discretion and at its own expense: (a) obtain for Customer the right to continue using the Consulting Services; (b) modify the Consulting Services so that they no longer infringe or misappropriate; or (c) terminate this Agreement and all Orders and issue a Pro-Rated Refund. CloudSaver will have no obligation to indemnify Customer for a Customer Infringement Claim to the extent it arises from any of the following (collectively, “Customer-Controlled Matters”): (i) customer’s environment, including connections to customer components, whether enabled through APIs, ancillary tools or otherwise; (ii) Account Data, Customer Data or Customer Credentials (including activities conducted with Customer Credentials), subject to CloudSaver’s obligations under this Agreement; or (iii) use of the Consulting Services by Customer in a manner that breaches an Order, Statement of Work, or this Agreement. SECTIONS 4.a AND 4.b STATE CLOUDSAVER’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.
4.c. Subject to Section 4.d, Customer agrees to defend, indemnify, and hold harmless CloudSaver, its Affiliates and their employees, contractors, agents, officers, and directors (collectively, “CloudSaver Indemnitees”), from and against any and all Losses arising out of or related to any Action by a third party arising out of or relating to Customer-Controlled Matters.
4.d. A Customer Indemnitee or CloudSaver Indemnitee (each, an “Indemnitee”) seeking indemnification shall promptly notify the other Party (each, an “Indemnifying Party”), in writing of any Action for which it seeks indemnification pursuant to Section 4.a or 4.c (as applicable) and cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s expense. An Indemnitee may participate in and observe the proceedings at its own expense with counsel of its own choice. A Party’s failure to perform any obligations under this Section 4.d will not relieve the Indemnifying Party of its obligations under Section 4.a or 4.c (as applicable) except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnifying Party shall not settle an Action without the Indemnitee’s written consent if such settlement shall require action or payment by the Indemnitee.
5.a. As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents, or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) Customer Data; (b) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances, and other business affairs; (c) third-party information that the Discloser is obligated to keep confidential; and (d) the terms of this Agreement and all Orders. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.
5.b. The Recipient shall not (a) use the Discloser’s Confidential Information for any purpose outside the scope of this Agreement without the Discloser’s prior written consent or (b) disclose the Discloser’s Confidential Information to any person or entity, except to the Recipient’s employees, agents, contractors and service providers who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
5.c. Data Security. CloudSaver will maintain an information security program that includes appropriate administrative, technical and physical safeguards reasonably designed to: 1) ensure the security and confidentiality of Customer’s data; 2) protect against any anticipated threats or hazards to the security or integrity of such data; 3) protect against unauthorized access to or use of such data that could result in substantial harm or inconvenience to Customer; and 4) dispose of such data in a secure manner. CloudSaver will limit its access to Customer’s data to authorized persons having a need to know who are subject to confidentiality obligations no less protective than this Agreement. CloudSaver will only access such information as necessary to provide services under this Agreement. CloudSaver will not store nonpublic personal information for any purpose other than to facilitate the performance of services for Customer, and for only so long as is necessary to facilitate such performance.
- Limitation of Liability
6.a. Under no circumstances will CloudSaver be liable for any consequential, indirect, special, punitive, exemplary or incidental damages of any kind whatsoever, whether foreseeable or unforeseeable (including but not limited to, claims for lost revenue, lost profits, loss of data, loss of goodwill, loss of use of money or use of services, interruption in the use or availability of data, stoppage of other work or impairment of other assets), arising out of the purported breach or failure of any express or implied warranty, breach of contract, negligence, strict liability in tort or otherwise. In no event will CloudSaver’s liability under this Agreement exceed the fees received by CloudSaver from Customer for performing the Services within the twelve (12) months preceding the claim.
6.b. CloudSaver will not be responsible for any failure to perform its obligations under this Agreement if such failure is caused by events beyond its reasonable control such as flood, fire, theft, communications failure, pandemic, and government shutdown orders (a “Force Majeure Event”). Notwithstanding the foregoing in the event a Force Majeure Event lasts more than thirty (30) consecutive days, either Party shall have the right to terminate this Agreement upon written notice.
6.c. CloudSaver makes no representation or warranty as to the availability, accuracy, or completeness of the Services or any cloud service cost reductions or savings. Customer takes the Services, reports and CloudSaver’s performance “as is.”
- Other Provisions
7.a. Governing Law. The Parties agree that Kansas law, without reference to rules governing conflict of laws, will apply to this Agreement and any dispute between the Parties related thereto. The Parties agree to exclusive jurisdiction and venue in the federal and state courts of Kansas for Johnson County, Kansas for any dispute arising under this Agreement.
7.b. Promotion. Neither Party shall, except as otherwise required by applicable law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that CloudSaver may include Customer’s name and logo in its lists of CloudSaver customers, its public website, and other promotional material. CloudSaver agrees to promptly cease such uses of Customer’s name and logo following Customer’s request sent to firstname.lastname@example.org.
A Party’s failure to enforce strict performance or compliance with any provision of this Agreement will not constitute a waiver of our rights to subsequently enforce such provision or other provisions of this Agreement. If a court of competent jurisdiction finds any provision of this Agreement to be illegal or unenforceable, that provision will be eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement contains the entire understanding of the Parties regarding its subject matter and supersedes all prior agreements between the Parties, both oral and written. This Agreement will not be amended except by mutual written consent of both Parties. Neither Party may assign this Agreement by operation of law, or otherwise without the other Party’s prior written consent. CloudSaver may not subcontract any portion of its obligations under this Agreement without prior written approval of Customer. Any such approval shall not relieve CloudSaver of any of its duties, obligations, warranties, liabilities, or responsibilities under this Agreement.