Master Services Agreement

Last updated: April 7, 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 (“Client”). This Agreement becomes binding and effective on Client 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, Client desires to engage CloudSaver to perform services for Client on the terms and conditions, and subject to the rights of termination hereinafter set forth, and Client 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:

  1. 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 Client (collectively the “Parties”) and incorporated into this Agreement by this reference (collectively, the “Services”). Client agrees to provide assistance and cooperation to meet any client obligations listed on any Order Form. Client agrees to grant CloudSaver programmatic and console access to their cloud environment, and to grant CloudSaver sufficient permissions within their cloud environment to perform the Services. Client grants CloudSaver permission to programmatically collect environmental, operational and billing 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 (“Cloud Provider”) necessary to collect such data. Client grants CloudSaver permission to make changes to their cloud environment to the extent they are related to deploying and executing approved cost saving actions. Client agrees to exclusively retain CloudSaver to provide the Services during the Term (as defined below and on the Order Form). All savings identified by CloudSaver and experienced by Client during the Term of this Agreement are deemed the result of CloudSaver Services.
    1. Fees; Payment Terms. All fees listed on an Order Form must be paid in accordance with the payment terms stated on the Order Form. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, ” Taxes”). Client is responsible for paying all taxes associated with Client’s purchases hereunder. For clarity, CloudSaver is solely responsible for taxes assessable against it based on income, property, and employees. Overdue payments will accrue interest at the lesser of one percent (1.0%) per month or the maximum allowable interest under applicable law, from due date until paid.
    2. CloudSaver Platform. 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. Client 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 Client a limited, non-exclusive and non-transferable license for Software, which may only be used during the Term in connection with the Services.
    3. 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 Client concerning such material breach. In the event such noncompliance is not corrected within such thirty (30) day period, Client may immediately terminate Agreement and CloudSaver shall refund Client all amounts paid by Client for the remaining duration of Agreement. This will be Client’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.
  2. Term. 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.
  3. Termination. 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. Sections 4 through 7 of this Agreement (as well as CloudSaver’s rights with respect to any amounts owed by Client), 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.
  4. Mutual Indemnity.
    1. CloudSaver will defend, indemnify and hold harmless Client and its directors, officers, employees and agents from and against any and all third-party claims, demands, lawsuits, judgments, losses, or expenses (including reasonable attorneys’ fees and court costs) to the extent arising out of any claim that the Software or Services infringes a copyright or misappropriates a trade secret of any third party. CloudSaver will have the right to control the defense of any third-party claim for which Client seeks indemnity and defense under this Section 4(a). The foregoing indemnity, defense, and hold harmless obligations will not apply to purported Services defects, Client’s sole remedies for which are set forth in Section 1(c) above.
    2. Client will defend, indemnify and hold harmless CloudSaver, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, demands, lawsuits, judgments, losses, or expenses of any nature whatsoever (including reasonable attorneys’ fees) arising directly or indirectly from or out of, or any way relating to Client’s use of the Software or Services, except a claim covered by Section 4(a)
  5. Confidentiality. Confidential information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) under this Agreement, and Order Forms referenced in, will be governed as follows:
    1. Confidential Information. “Confidential Information” means non-public and proprietary know-how and information disclosed under this Agreement, whether oral or written or electronic, that (a) concerns the software, reporting, technology, customers, finances, methods, research, processes or procedures of either CloudSaver or Client; or (b) is designated as “Confidential” or “Proprietary” by the Disclosing Party at the time of disclosure or within a reasonable period thereafter or by reason of its nature would reasonably be concluded to be of a confidential nature.
    2. Nondisclosure. The Receiving Party will retain the Disclosing Party’s Confidential Information in confidence, and will not use or disclose Confidential Information except for purposes permitted under this Agreement. The Receiving Party will be entitled to disclose Confidential Information of the Disclosing Party (i) to its employees, provided such employees are bound by nondisclosure obligations no less protective than those set out in this Agreement, and (ii) to affiliates and vendors, provided such affiliates and vendors are bound by nondisclosure obligations no less protective than those set out in this Agreement.
    3. Exceptions. Sections 5(a) and 5(b) will not apply to Confidential Information the Receiving Party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from a third-party, provided that such third-party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information; (iii) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (iv) is required to be disclosed by law, provided that the Disclosing Party is promptly notified by the Receiving Party to provide the Disclosing Party an opportunity to seek a protective order or other relief.
    4. 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 Client’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 Client; and 4) dispose of such data in a secure manner. CloudSaver will limit its access to Client’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 Client, and for only so long as is necessary to facilitate such performance.
  6. Limitation of Liability/Insurance.
    1. Under no circumstances will either Party 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. Except for liability arising out of a breach of Section 5 or the Party’s respective indemnification obligation under Section 4, in no event will either Party’s liability under this Agreement exceed the fees received by CloudSaver from Client for performing the Services within the twelve (12) months preceding the claim.
    2. In no event will either Party’s liability arising out of a breach of Section 5 or the Party’s respective indemnification obligation under Section 4 under this Agreement exceed the relevant insurance limits set forth in Section 6d.
    3. Neither Party will be responsible for any failure to perform its obligations under this Agreement (other than obligations to pay money) if such failure is caused by events beyond the reasonable control of either Party such as flood, fire, theft, communications failure, etc. (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.
    4. CloudSaver makes no representation or warranty as to the availability, accuracy, or completeness of the Services or any cloud service cost reductions or savings. Client takes the Services, reports and CloudSaver’s performance “as is.”
    5. CloudSaver will obtain the following minimum insurance coverage, and maintain it at all times throughout the life of this Agreement at CloudSaver’s sole expense. The insurance shall be issued by insurance companies rated at least A- and VII by A. M. Best’s key rating guide.
      1. Commercial General Liability insurance with limits of at least One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) aggregate for bodily injury, personal injury, and property damage.
      2. Business Auto Insurance, applying to owned, non-owned and hired vehicles, with a limit of at least One Million Dollars ($1,000,000).
      3. Workers’ Compensation Insurance, including occupational disease, as set forth in any applicable statutes in the amount of the statutory minimum.
      4. Professional Errors and Omissions Insurance with a limit of at least Five Million Dollars ($5,000,000).
      5. The certificates of insurance evidencing the insurance coverage specified in above shall stipulate that Client shall be listed as an additional named insured under such insurance. Client shall receive thirty (30) days’ prior written notice of any cancellation in the aforementioned coverage. CloudSaver agrees to, and hereby does, waive subrogation against Client under all such insurance and all policies of insurance which CloudSaver must furnish pursuant to this section shall contain an endorsement whereby the carrier waives any and all rights of subrogation against Client.
  7. Other Provisions.
    1. 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 any dispute arising under this Agreement.
    2. Promotion. CloudSaver may list Client’s name and logo in CloudSaver promotional materials.
  8. General. 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 Client. Any such approval shall not relieve CloudSaver of any of its duties, obligations, warranties, liabilities or responsibilities under this Agreement.