Definitions

"Account" refers to the Service plans and features selected by Recipient through Provider's customer portal, and/or indicated in writing in a separate contract, or indicated via invoice.

"SLA" refers to Provider's Service Level Agreement posted at gouncloud.com/sla, which may change from time to time.

"Data Policy" refers to Provider's standard data deletion policy, which may change from time to time.

"Effective Date" refers to the date of commencement of the Service as listed in Recipient's Account or documented in writing in a separate contract or by invoice.

"Materials" refers to written and graphical content provided by or through the Service, including, without limitation, text, forms, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.

"Recipient Data" refers to data in electronic form that is input or collected through the Service by or from Recipient.

"Privacy Policy" refers to Provider's privacy policy, posted at gouncloud.com/privacy, which may change from time to time.

"Service" refers to Provider's online account service. The Service includes such features as are set forth on Provider's website (gouncloud.com). Such features may change from time to time, at the Provider's sole discretion.

Service & Payment

Service

Provider will provide the Service to Recipient pursuant to its standard policies and procedures then in effect. Provider may change, discontinue or impose conditions on any Service.

Payment

The applicable fees for the Service will be specified during checkout (the “Fees”) and/or via invoice. Fees for downloadable and other one-time Services will be due at the time of purchasing such Service. Fees for subscriptions will be charged at the time of purchasing the subscription and on a monthly or annual basis thereafter. Fees for usage-based services will be charged at a predetermined day of the month and reflect the Recipient’s usage from the prior month. If Recipient is paying by credit or debit card, Recipient authorizes Provider to store Recipient’s card information and charge Recipient for Service fees, either as a one-time or recurring subscription or usage basis. The fees are based on the Service purchased, or on usage as indicated for the specific Service. Provider will collect and remit sales tax where required by state laws, based on the Service and the address listed in Recipient’s Account.

Refunds

In general, all Fees associated with a Service are non-refundable. However, should a dispute over Fees for Services rendered arise, the Provider may, at its sole discretion, refund in full or in part, the Fees associated with this Service. Such refunds must be requested in writing by the Recipient within 30 days of the payment, and are subject to approval by the Provider. The Provider may also choose to compensate the Recipient in an equivalent way without issuing a refund, such as credit for future services. Such decisions will be made solely by the Provider and based on the Provider’s assessment of “good faith” on the part of the Recipient.

Changes to Fees

Provider reserves the right to modify the Fees at any time upon notice (provided that prior notice will not be required if pricing increases are due to domestic rate changes or other events beyond Provider’s control), and such changes or modifications may be provided by an email message to Recipient, or in such other form of communication as may be designated by Provider from time to time.

Provider's Service Level

Provider shall: (a) provide basic support for the Service at no additional charge; and (b) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) scheduled downtime, or (ii) any unavailability caused by circumstances beyond Provider's control; and (c) pursuant to the Service Level Agreement at gouncloud.com/sla.

Materials, Software, & Intellectual Property

Materials

Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Recipient's use of the Service.

Intellectual Property in General

Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, unless indicated via separate license agreement accompanying said software (for example “open source” software, which is clearly indicated with an appropriate accompanying license). This Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components.

Feedback

Provider shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Recipient.

Online Policies

SLA (Service Level Agreement)

Details of the Service given by Provider as regards “up time” for individual services offered are indicated in the SLA, which may be updated from time to time.

Privacy Policy

The Privacy Policy applies only to the Service and does not apply to any third party site or service linked to the Service or recommended or referred to through the Service.

Each Party's Representations and Warranties

Recipient's Representations

Recipient represents: (i) it will be responsible for compliance with this Agreement; (ii) it has accurately identified itself through its Account and will maintain the accuracy of such identification; (iii) it will not make the Service available to unauthorized users; (iv) its use of the Service will comply with applicable laws, rules and regulations; (v) it will not sell, lease, license or sublicense the Service; (vi) it will not use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) it will not interfere with or disrupt the integrity of performance of the Service or third-party data contained therein; or (vii) it will not attempt to gain unauthorized access to the Service or their related systems or networks.

Right to Do Business

Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement.

Disclaimers

EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION 6, THE SERVICE IS PROVIDED "AS IS" AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (I) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (II) PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL PERFORM WITHOUT ERROR OR IMMATERIAL INTERRUPTION; (III) PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL CONFORM TO RECIPIENT'S LEGAL NEEDS AND/OR LAWS, RULES AND REGULATIONS APPLICABLE TO RECIPIENT; AND (IV) PROVIDER IS NOT ACTING AS RECIPIENT'S ATTORNEY OR FIDUCIARY.

Limitation of Liability

IN NO EVENT: (A) WILL PROVIDER'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $100; AND (B) WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (I) TO LIABILITY FOR NEGLIGENCE; (II) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (III) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (IV) EVEN IF RECIPIENT'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 7, Provider's liability will be limited to the maximum extent permissible.

Indemnification

Recipient agrees to defend, indemnify and hold Provider, its parent, officers, directors, employees, licensees, assigns, and affiliates harmless from and against all claims, losses, liability, costs and expenses (including reasonable attorneys' fees) arising from Recipient's use of the Service.

Confidentiality

Definition of Confidential Information

As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") 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. Recipient's Confidential Information shall include Recipient Data; Provider's Confidential Information shall include the Service and the terms and conditions of this Agreement. However, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.

Protection of Confidential Information

The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall: (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent.

Compelled Disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

Data Management

Access, Use, & Legal Compulsion

Unless it receives Recipient's prior written consent, Provider: (i) will not access, modify, or use Recipient Data other than as necessary to facilitate the Service; and (ii) will not give any third party access to Recipient Data. Notwithstanding the foregoing, Provider may disclose Recipient Data as required by applicable law or by proper legal or governmental authority. Provider will give Recipient prompt notice of any such legal or governmental demand and reasonably cooperate with Recipient in any effort to seek a protective order or otherwise to contest such required disclosure, at Recipient's expense.

Recipient's Rights

Recipient possesses and retains all right, title, and interest in and to Recipient Data, and Provider's use and possession thereof is solely to provide and maintain the Service.

Retention & Deletion

Provider will retain all Recipient Data until erased pursuant to the Data Policy.

Term & Termination

Term

For downloadable and other one-time Services, this Agreement commences on the date Recipient accepts this Agreement and continues until the Service and the Account have expired or been terminated or deleted.

For subscriptions, this Agreement commences on the date Recipient accepts this Agreement and will remain in effect for an initial term of either 1 month or 12 months (the “Initial Term”), as indicated during the purchase process.. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”) equal in duration to the Initial Term at the then-current Fees, unless Recipient provides Provider with written notice of Recipient’s election not to renew at least thirty (30) days prior to the expiration of the then-current Term. Using an appropriate feature of the gouncloud.com website to indicate cancellation is acceptable notice for this purpose.

Termination for Cause

Either party may terminate this Agreement for material breach by written notice, effective in thirty (30) days, unless the other party first cures such breach and provides notice to the other party.

Effects of Termination

The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 4 (Materials, Software & Intellectual Property), 5(b) (Privacy Policy), 6(c) (Warranty Disclaimer), 7 (Limitation of Liability), 8 (Indemnification), and 9 (Confidentiality) of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.

Third-Party Services

In order to access and use some Services, Recipient may be required to subscribe to service offerings of certain third-party providers (“Third-Party Service(s)”). Provider will not be responsible for any loss or damage incurred as a result of Recipient’s use of Third-Party Services, regardless of whether Recipient was directed by Provider to such Third-Party Services. References made by Provider to a Third-Party Service shall not be construed as Provider’s approval or endorsement of such Third-Party Service.

Miscellaneous

Notices

Provider may send notices pursuant to this Agreement to Recipient's contacts listed in Recipient's Account, and such notices will be deemed received two (2) days after they are sent. Recipient may send written notices pursuant to this Agreement to Uncloud (Brad Peabody LLC), Attention: Legal Affairs, 19425 Soledad Canyon Rd #332, Canyon Country, CA 91351, and such notices will be deemed received two (2) days after they are sent.

Amendment

Provider may amend this Agreement (including the SLA and Privacy Policy) from time to time by posting an amended version at its website. Recipient's continued use of the Service following the effective date of an amendment will confirm Recipient's consent thereto. This Agreement may not be amended in any other way.

Independent Contractors

The parties are independent contractors. Neither party is the agent of the other and neither may bind the other in any way.

No Waiver

Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.

Force Majeure

To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.

Assignment & Successors

Neither party may assign this Agreement or any of its rights or obligations hereunder without the other's express written consent, except that Provider may assign this Agreement in connection with a sale or merger without the consent of Recipient. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.

Choice of Law & Jurisdiction

This Agreement will be governed solely by the internal laws of the state of California, without reference to its conflict of law rules. The parties irrevocably consent to the personal and exclusive jurisdiction of the federal and state courts located in Los Angeles County, California and the Central District Court of California, respectively.

Severability

To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

Conflicts among Attachments

In the event of any conflict between the terms of this Agreement and those of the SLA and/or Privacy Policy, the terms of this Agreement will govern.

Entire Agreement

This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof.