MASTER SERVICE AGREEMENT

This MASTER SERVICE Agreement (the “Agreement”) is accepted as of this day electronically agreed upon, the "Date" of this Agreement, by and between PROPULSIVE TECHNOLOGIES, LLC, dba onCloud, whose principal address is located at 1025 Rose Creek Drive, Suite 620-214, Woodstock, GA 30189 USA (“onCloud”), and the Customer, whose principal address is provided, and kept accurate, at the time of signup with onCloud (“Client”).  onCloud and Client may be referred to hereafter as a "party" or collectively as the "parties".


1. Definitions


1.1 “Content” means all text, pictures, sound, graphics, video and other data supplied by Client to onCloud. Such materials may be modified by Client from time to time.


1.2 “Domain Name” means the domain name specified for the Website, service or portal of Client from time to time.


1.3 “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the universe, including, but not limited to, copyrights, moral rights, and mask-works, (b) trademarks, tradenames, service marks, and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights of every kind and nature throughout the universe and however designated, including, without limitation, logos, “rental” rights, and rights to remuneration, whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).


1.4 “Specifications” means Client’s requirements set forth in this Agreement.


1.5 “User Content” means all text, pictures, sound, graphics, video and other data provided by Client or Website users.


1.6 “Website” means the user interface, functionality and Content made available on pages under a Domain Name.


1.7 “Work Product” means object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by onCloud or with onCloud in providing the services herein to Client.


1.8 “Illegal Activity” means an activity that is prohibited by law, or not authorized by United States or any other recognized country's law.


1.9 “Authorized User” means an employee, vendor, customer or sub-contractor who has been willfully granted access by Client for use of their systems and/or to access Client data.


1.10 “Access credentials” means a secret, strong, passcode, provided only to the “Authorized User” to gain access to Client or onCloud systems.


1.11 "Virtual Extension" means an extension on the phone system that call forwards to a remote telephone number, such as a cell phone instead of a conventional Internet-connected desk or wireless phone.


1.12 "Call Leg" means each connected call from point A to point B. For example,  in the event a call originates from a cell phone to an onCloud myVoice tenant, then this call is then later call forwarded to another remote phone number this would be calculated as  two call legs.


2. Web Hosting


2.1 Services. onCloud shall provide the following web hosting services, if included in a Statement of Work (“SoW”) attached hereto and signed by the Parties:


(a) Domain Name.  If requested by Client, onCloud shall cooperate with Client in registering the Domain Name; however, Client is responsible for all domain registration and applicable service fees. Client shall own all right, title and interest in and to the Domain Name and all Intellectual Property Rights related thereto.


(b) Content Control. Client shall have sole control over the Content.  onCloud will not supplement, modify or alter Content except with Client’s prior written consent. However, onCloud may remove any Content, should the Content be deemed illegal or otherwise unacceptable as described in section 7 below.  A 24-hour notice to cure will be provided by onCloud, if allowed by law.  A notice to cure may not be provided, however, if a recognized legal authority such as, but not limited to, a federal or state court order supersedes this section.


(c) Standards. onCloud’s hosting standards shall conform to the following:


(i) Availability of Web Site and Cloud Services.  The Website or applicable leased services shall be publicly available to users as prescribed by Client. There may be occasions when the Website or contracted services may not be available due to scheduled or emergency maintenance window. In case of scheduled maintenance, Client will be notified in advance via the registered e-mail address provided. In the event of emergency maintenance, no notification may be given at the time of outage. In the unlikely event of an un-planned outage, onCloud will make every effort to resolve a service disruption problem for Client as well as communicate with Client regarding the nature of the problem and estimated time for repair. Unless specifically contracted, onCloud is not responsible for Internet access to Client premise(s), devices or telephones. Outages or service disruptions beyond the control of systems under onCloud’s network infrastructure, or contracted work scope, are the responsibility of Client to remedy.


(ii) Response Time. onCloud agrees to use its best efforts to repair in a timely manner that is commercially reasonable any issues affecting its service that may arise.  No specific service level agreement (“SLA”) is assumed unless amended to this Agreement.


(iii) Bandwidth. onCloud agrees to house servers and required network infrastructure. onCloud will provide as much necessary bandwidth to Client; but, where the usage by Client exceeds the standard bandwidth thresholds to access subscribed services, and affects the functioning of the server and/or affects usage by other clients, provision of bandwidth to Client will be restricted until such time the issue is resolved. 


2.2 Client License.  During the period that onCloud provides web hosting services pursuant to this Section 2, Client hereby grants to onCloud a non-exclusive, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, publicly perform, publicly display and digitally perform the Content only on, or in conjunction with, the Website.  Client grants no rights other than explicitly granted herein, and onCloud shall not exceed the scope of its license.


3. CLOUD SERVICES



3.1 Cloud-based telecommunication ("VoIP") services (“myVoice”). onCloud shall provide myVoice, if included and set forth in a SoW, as follows:


(a) Unlimited Calling. Unlimited calling plans are offered with the expectance of normal business calling patterns/usage.  Unlimited usage applies to the domestic lower forty-eight United States and Canada only.  Call center or predictive dialer use, without explicit authorization is prohibited.


(b) Reasonable Use. The Customer acknowledges (1) that any reference onCloud has made to “unlimited” minutes or features refers to onCloud's practice not to charge users on a per-minute or per-use basis when use is reasonable and (2) that onCloud does not offer “unlimited” plans for call center operations, fax spamming, or other activities that use an extraordinary amount of connectivity to the public switched telephone network (the “PSTN”). When the customer exceeds 2,000 minutes per extension, averaged between all billable voice extensions, onCloud may limit PSTN connectivity, impose per-minute charges for excessive use, or terminate this agreement if it determines that the Customer’s average per-user PSTN connectivity is unreasonable as compared to other customers.


(c) International Calling. onCloud reserves the right to restrict or limit international based origination (dialing) based on credit worthiness of Client.  From time-to-time, Client may be re-evaluated based on payment history.


(d) Telecom Taxes. Telecom taxes are not included with package pricing.  Actual state and federal taxes will be imposed to any telecom portion of services rendered.  Taxes, recovery fees and surcharges may change from time-to-time as federal, state and local regulations change.


(e) 911 Emergency Service. 911 service is not always available with Voice over IP ("VoIP") or cloud systems due to network congestion's, lack of power, lack of Internet or other unforeseen reasons.  Client recognizes onCloud provided phone service makes a best-effort to provide 911 services, but that it may not always be available. Excessive 911 calls (defined as exceeding more than 3 calls per calendar month from a customers registered E911 location), or abuse of the 911 system, may result in per-call surcharges or fines being levied on the customers account.


(f) Expectation of Power and Internet. VoIP phones require Internet service and electricity to function.  Client should not rely on VoIP phones as the sole means of communications for emergency, health or life monitoring.


(g) Programming Changes. Where offered, “Unlimited System Programming Changes” are limited to four per calendar month, effective after the first 30-days of service.  Excessive programming changes may be billed at onCloud’s standard per-hour rate.  Voicemail password resets, name changes, and addition or removal of extensions are not considered programming changes.


(h) Metered Plans. Customer acknowledges and understands they are responsible for any per-minute charges that may exceed the subscribed, or included, minute pool package. Unless otherwise noted on a signed and executed SoW, the per minute rate shall be $.05/cents per minute billed in excess of included plan minutes during any monthly plan term. Minute usage is calculated for both incoming and outgoing phone calls from the onCloud voice network, however, internal extension-to-extension calls are excluded from minute usage calculations. In the event of a call being forwarded outside of the onCloud voice network, such as but not limited to ("Virtual Extensions"), Answering Services or other phone numbers the minutes consumed are per call each ("Call Leg)".


3.2 Services Non-Transferable.  Services provided to Client are non-exclusive and non-transferable without prior written consent of onCloud.


3.3 Licensing.  onCloud is responsible for all licensing of onCloud provided software. onCloud is not responsible for licensing of any Client installed software, unless explicitly contracted. Software installed or utilized by the Client must be legally licensed before use. onCloud may request such proof of license at any time.


3.4 Service Activation & Start Date.   Billing for services commences at the time of provisioning. For customers activating numbers from other providers into myVoice, service and billing commences no later than fourteen (14) days after the (“SoW”) is executed*. For customers activating new numbers in myVoice, service and billing commences the day the user equipment is delivered to the customer. In the event customer is providing their own equipment, service is activated when provisioning is completed and credentials are provided to the customer.


*In no event, shall the service start date exceed fourteen days from the executed (“SoW”) date. Delays created due to customer’s inability to schedule on-boarding calls, provide required customer-specific information to onCloud, customer’s network or Internet deficiencies or other customer-facing issues will not serve as grounds to postpone the activation and billing start date.


4. FEES


Except as otherwise specified herein, onCloud shall invoice all fees in advance every month as specified under the (“Total”) in each SoW, as the parties may enter multiple SoWs under this Agreement.  SoWs are separate agreements that can be added during the lifetime of this Master Service Agreement (“MSA”) that specifically contract onCloud for certain services with a specific term.  Each signed SoW acts as a supplement under and to this MSA.


4.1 Surcharge.  In case of payments made for any single invoice over $1,000 using a credit card, Client shall pay 3% surcharge.


4.2 Taxes.  All fees quoted exclude all sales, use, excise, telecommunications and other taxes, which may be levied in connection with this Agreement. Client is responsible for all imposed federal, state, local or Internet related taxes, both present and future.


4.3 Interest. Payment must be received by the due date on the invoice. Any late payment shall be subject to interest of 3% per month from the due date until the date of payment, with a minimum late fee assessed per invoice of $1.


4.4 Returned Check.  In case of a Returned Check, Client shall be liable for the amount of the dishonored check, the court costs and the processing charges incurred by the holder, plus interest at the rate of 18% per annum from the date of dishonor.


5. Term And Termination


5.1 Term.  The initial term of this Agreement shall be for a period of 1-Year from the Date of this Agreement.  At the end of initial term or any subsequent renewals, unless otherwise terminated by the parties, this Agreement shall automatically renew for a further period equal to the initial term and continue until terminated.


5.2 Suspension. (a) onCloud may suspend the services if payment is not received within thirty (30) days from the invoice due date for making payment. Client will receive a notice to cure (“Payment Reminder”) two (7) days, seven (14) days and fourteen (30) days after the invoice due date via the registered account e-mail address.


(b) onCloud has zero tolerance for Illegal Activities.  onCloud may suspend its services immediately without issuing any notice, if it observes any Illegal Activity of or by Client.


(c) onCloud has zero tolerance for broadcasting of unsolicited (“SPAM”) emails.  onCloud may suspend its e-mail services immediately without issuing any notice, if it observes any Spamming from Client’s subscribed systems or account, regardless of who initiated the action, until such action is resolved.


(d) onCloud has the right to suspend the service or terminate the Client account if it adversely disrupts onCloud’s networks or systems. Examples include, but are not limited to, malware or virus infections, etc.


5.3 Termination.  (a) onCloud may terminate the services if the delay in payment is beyond thirty (30) days from the invoice due date and may remove all Client data and systems if payment is not made after sixty (60) days from the invoice due date. Upon termination of services, should Client wish to be reactivated, Client shall be required to pay all installation and setup charges as if they were a new client.


(b) Either party may terminate the Agreement after the initial term or during any renewal term with at least sixty (60) days’ written notice (before the end of the initial term or during any renewal term), duly signed by an authorized officer of the Client and delivered, via a certified method, to the above address through an authorized postal or courier service.   If Client terminates the Agreement before the expiration of any term of this Agreement, Client, nevertheless, shall remain liable for 100% of the monthly recurring cost ('MRC') for the remaining months in the term of all active, signed, Statement of Work(s) (“SoW”), unless otherwise agreed between the parties.


5.4 Termination for Cause.  Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for fourteen (14) days following written notice to the breaching party.  The non-breaching party must provide written notice to the breaching party for demand to cure within fourteen (14) days.


5.5 Termination before Activation. Client acknowledges that onCloud has significant on-boarding expenses associated with the setup and activation of services for Client. Should Client request Termination of services prior to Activation or Service Start Date, and a Signed State-of-Work (“SoW”) has been submitted to onCloud, Client shall be responsible for payment of three (3) months at the monthly re-occurring cost ('MRC') listed in any given Statement of Work ("SoW") plus any upfront non re-occurring cost ('NRC') such as, but not limited to, activation charges, equipment charges, porting fees, or setup/installation fees as listed in referenced Statement of Work ("SoW") under one-time charges.


5.6 Termination Due to Delay. Customer acknowledges that within sixty (60) days of the Signed Executed Date, Customer is responsible to provide the necessary information to complete the Statement-of-Work (“SoW”). In the event a statement-of-work ('SoW') exceeds sixty (60) calendar days from the Signed Execution Date, due to no fault of onCloud, a pending order will automatically cancel. If the statement-of-work ('SoW') is unable to be executed due to fault of Client, section 5.5 will apply.


5.7 Effect of Termination. In the event of the termination of this Agreement, each party will continue to be liable for all portions of this Agreement that are to remain in effect following termination of this Agreement, including, but not limited to, Sections 5.3, 6, 7, 8.4, 9, 11, & 12.  If there is a request by the Client at the time of termination of this Agreement, onCloud shall return, in their original form, all Content and copies thereof and deliver the originals and all copies of the Work Product in whatever stage of completion to Client.  In the event the Work Product is in digital form, it will be made, at Client’s request, available for download for seven (7) days.  In the event of a material breach of this Agreement by Client, onCloud is under no obligation to return any Client Content, Work Product, or data.


6.  REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ONCLOUD


onCloud hereby represents, covenants, and warrants to and for the benefit of Client as follows:


6.1  Due Organization.  onCloud is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Georgia.  


6.2  Power and Authority.   onCloud has full power and authority to own, operate, lease and sell its property including, but not limited to, its software and systems; and to carry on its business as now conducted and has full power and authority to execute and deliver this Agreement and any SoWs and to perform its obligations under this Agreement and any SoWs.  This Agreement, any SoWs, and the obligations contemplated hereby have been duly and validly authorized by all necessary action on the part of onCloud, and this Agreement and any SoWs constitute legal, valid, and binding obligations of onCloud, enforceable in accordance with the terms and conditions of the respective agreements.


6.3  No Violation.  Neither onCloud's execution and delivery of this Agreement or any SoWs, nor its performance of the obligations set forth in this Agreement or any SoWs, will, with or without the giving of notice or the passage of time, or both, to the best of onCloud's knowledge, violate or infringe any contractual rights, intellectual property rights, or other rights of any third party.


6.4  Consents.  No further permit, consent, filing, or approval, that has not already been obtained, of any third party is required to be obtained or made by onCloud in connection with the execution, delivery, and performance of this Agreement or any SoWs in order to (i) render either valid and effective and (ii) enable onCloud to perform the obligations contemplated hereby.


6.5  Legal Matters.  To the best of onCloud's knowledge, there is no claim, legal action, counterclaim, suit, arbitration, governmental investigation, or other legal, administrative, or tax proceeding, or any order, decree, or judgment of any court, governmental agency, or arbitration tribunal in progress, pending, or threatened against or relating to onCloud or the assets of onCloud that would individually or in the aggregate have a material adverse affect on onCloud's ability to perform the obligations contemplated by this Agreement or any SoWs executed herewith.


6.6  Ownership.  onCloud hereby represents that it has the patent in, and worldwide exclusive rights to, its software, as licensed herein, that it is the sole and exclusive confidential property of onCloud, and that the software is free and clear of any lien.


6.7  Warranty.  ONCLOUD MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MYVOICE, ITS SOFTWARE, OR SYSTEM, EXCEPT THAT IT HAS THE RIGHT TO GRANT THE LICENSE HEREIN; THAT THE SOFTWARE AT THE TIME OF DELIVERY (A) MAY BE PROGRAMMED INTO CLIENT’S SYSTEMS, (B) WILL PERFORM THE FUNCTIONS REFERENCED IN THE SOWS, AND (C) WILL BE FREE OF ALL KNOWN DEFECTS, ERRORS, DEFICIENCIES, AND BUGS; AND THAT ONCLOUD WILL CORRECT ANY LATER IDENTIFIED DEFECTS, ERRORS, DEFICIENCIES, OR BUGS IN A TIMELY AND WORKMANLIKE MANNER IN ACCORDANCE HEREWITH.  SPECIFICALLY, ONCLOUD MAKES NO EXPRESS OR IMPLIED WARRANTIES OF TITLE, NON-INFRINGMENT, SUITABILITY FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY OR THAT THE OPERATION OF CLIENT'S SYSTEM WILL BE UNINTERRUPTED AND ERROR-FREE, AND CLIENT WAIVES ANY SUCH WARRANTIES.  NOTWITHSTANDING THE FOREGOING, ONCLOUD WARRANTS THAT MYVOICE AND THE SOFTWARE SHALL PROPERLY RUN AND PERFORM THE FUNCTIONS AS SET FORTH IN THIS AGREEMENT AND ANY SOWS.  IF ANY FUNCTION OF THE SYSTEM DOES NOT PERFORM AS WARRANTED, ONCLOUD'S OBLIGATION WILL BE TO MODIFY ITS SERVICE TO MAKE IT PERFORM AS WARRANTED.


ANY ACTION UPON THE BREACH OF THE WARRANTY HEREIN AS TO MYVOICE OR RELATED SOFTWARE MUST BE BROUGHT WITHIN ONE (1) YEAR FROM THE DATE OF INSTALLATION THEREOF, UNLESS A LONGER PERIOD IS REQUIRED BY LAW, IN WHICH CASE THE MINIMUM PERIOD REQUIRED BY LAW SHALL APPLY.


6.8  Work Product Warranties.  onCloud warrants that onCloud-made changes to the Content shall not: (a) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including, without limitation, the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (c) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) be obscene, child pornographic or indecent; and (e) contain any viruses, Trojan Horses, trap doors, back doors, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.


6.9 Limitation of Liability.  IN NO EVENT, OTHER THAN ONCLOUD’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, WILL ONCLOUD BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY NATURE, INCLUDING LOST PROFITS OR LOST SAVINGS, ARISING OUT OF OR IN CONNECTION WITH ONCLOUD'S SERVICES SET FORTH IN THE SOWS, EVEN IF ONCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR HEREIN.  SUBJECT TO SECTION 6.11, BELOW, ANY DAMAGES DUE CLIENT FOR FAILURE OF ONCLOUD'S SERVICES SET FORTH IN THE SOWS, UNLESS CAUSED BY CLIENT, SHALL BE LIMITED TO ANY FEES DUE HEREUNDER, WHICH PAYMENTS ARE NOT PENALTIES OF THE PARTIES HEREIN, BUT ARE LIQUIDATED DAMAGES THAT THE PARTIES HEREBY AGREE ARE A REASONABLE PRE-ESTIMATE OF THE PROBABLE LOSS, AS SUCH DAMAGES WOULD BE DIFFICULT TO ESTIMATE. 


6.10  Intellectual Property. During the term of this Agreement, onCloud shall maintain in full force and effect its present rights to use, if they exist, any trade name, trademark, labels, copyrights, patents, and patents affiliated with its software and shall, at its own expense, exercise its common-law and statutory rights against any infringements or its right to so use such trade name, trademark, labels, copyrights, pending patents, and patents. 


6.11  Data Security.  onCloud will make its best effort to protect Client systems and data.  However, it shall not be responsible for data leaks, intrusions or hacking.  Clients must perform due-diligence to safeguard their access credentials.  onCloud is not responsible for any customer data breach and shall not be held liable for any damages or loss of revenue of such breach.


6.12  Backup.  Client is responsible for backing up and safeguarding its data unless explicit services from onCloud are purchased for data protection and backup and set forth in a SoW.  Should Client purchase data backup package, no data protection guarantees, however, are offered.  onCloud will make best efforts using sophisticated software, hardware and technology to safeguard Client data, however, no data backups are ever guaranteed.


6.13  Disruption for Late or Non-Payment.  Should Client’s systems or services be disrupted or terminated due to late or non-payment, onCloud shall bear no responsibility for any loss of Client data, business, revenue or claims of damage.


7.  REPRESENTATIONS, COVENANTS, AND WARRANTIES OF CLIENT


Client hereby represents, covenants, and warrants to and for the benefit of onCloud as follows:


7.1  Due Organization.   Client is a legal entity, duly organized, validly existing, and in good standing under the laws of it's state where registered to conduct business.


7.2  Power and Authority.  Client has all requisite corporate power and authority to own, operate, and lease its property, and to carry on its business as now conducted and has full power and authority to execute and deliver this Agreement and any SoWs and to perform its obligations under this Agreement and any SoWs. This Agreement, any SoWs, and the obligations contemplated hereby have been duly and validly authorized by all necessary action on the part of Client, and this Agreement and any SoWs constitute legal, valid, and binding obligations of Client, enforceable in accordance with the terms of the respective agreements.


7.3  No Violation.  Neither Client's execution and delivery of this Agreement or any SoW, nor its performance of the obligations set forth in this Agreement or any SoW, will, with or without the giving of notice or the passage of time, or both, to the best of its knowledge, violate or infringe any contractual rights, intellectual property rights, or other rights of any third party.


7.4  Consents.  No further permit, consent, filing, or approval, that has not already been obtained, of any third party is required to be obtained or made by Client in connection with the execution, delivery, and performance of this Agreement or any SoW in order to (i) render either agreement valid and effective and (ii) enable Client to perform the obligations contemplated hereby.


7.5  Legal Matters.  To the best of Client’s knowledge, there is no claim, legal action, counterclaim, suit, arbitration, governmental investigation, or other legal, administrative, or tax proceeding, or any order, decree, or judgment of any court, governmental agency, or arbitration tribunal in progress, pending, or threatened against or relating to Client or the assets of Client that would individually or in the aggregate have a material adverse affect on Client's ability to perform the obligations contemplated by this Agreement or any SoW executed herewith.


7.6  Ownership. Client acknowledges that the onCloud devices and software, which are placed on Client’s networks, workstations and mobile devices, are licensed to Client to be used solely in accordance with the terms and provisions hereof and that copies of any source or program, data entry manual, operating procedure and guidelines, instruction, documentation, and form made available to Client by onCloud are, and shall remain at all times, the sole and exclusive property of onCloud and that, upon termination of this Agreement, all such materials, including the software and devices provided by onCloud hereunder, shall be immediately returned to onCloud, together with all copies and reproductions of the software thereof made by Client in accordance with the terms hereof; and from such time, Client shall have no further right to use the onCloud provided devices and software.  Upon cessation of use of onCloud provided devices and the software at Client's locations, all of the foregoing devices, documentation and software furnished to Client shall be returned to onCloud.  Client agrees that it will not decompile or disassemble the software or devices or use any other method to reverse engineer the software or devices; and Client agrees to take no action or fail to take any action, which would adversely affect any copyright or patent that onCloud may have, or any other proprietary interest onCloud may have, in the software.  Client shall ensure that any identification labels or legal notices contained in any aspect of the onCloud system or service are not modified, suppressed, or in any other way made inconspicuous.


7.7  Additions to the System.  Client agrees not to modify or amend the System without the express written consent, which shall not be unreasonably withheld, of onCloud; and the System, if modified, shall be used by Client in accordance with the provisions of this Agreement and any SoWs.  Upon termination of the Agreement, Client's right to use the software or provided devices, however modified by onCloud or Client, shall cease.


7.8  Indemnity. Client agrees to indemnify and hold onCloud harmless from any loss, action, suit, or claim arising out of any breach or misrepresentation of the terms of this Agreement by Client, or the negligent acts and omissions or willful misconduct of Client or Client's agents, employees, or representatives in any way related to their use of the onCloud service, as well as any cause of action brought by Client's clients or customers, either at law or in equity, as a result of Client's negligence or willful misconduct. Client’s obligations are conditioned upon the indemnified party: (a) giving Client prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement to the Client; and (c) reasonably cooperating with Client at their expense.



7.9  Patent Rights.  Client acknowledges the validity of onCloud's patent rights in its software and algorithms. 


7.10  Website Restrictions. During the period that onCloud provides the services, Client shall not distribute on the Website or affiliated services any Content that: (a) infringes on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is unsolicited, spam, obscene, child pornographic or indecent; or (e) contains any viruses, Trojan Horses, worms, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.


7.11  Additional Installation. Client agrees to install only licensed software (such as in a virtual desktop environment), and further agrees to produce the proof of license if requested by onCloud.


7.12  Client Agreements. Client agrees not to:


7.13  Client Contact Information.  Client is responsible for keeping current contact information with onCloud.  Client recognizes onCloud may use e-mail, telephone and postal mail to communicate with the Client. Client contact changes and authorized person(s) changes can be made by authorized officers only.  Contact changes can be made via the online Client portal (https://www.oncloud.io/clientarea.php), by entering a support ticket at (billing@oncloud.io) or via registered postal services.


8. OBLIGATIONS OF ONCLOUD


8.1  Support.  onCloud will provide services for Client, as outlined in any SoW, for any operation and maintenance of the System; any programming, consultation, and development required to correct a defect, error, deficiency or bug found in the application of the software; and all software upgrades and program enhancements, which shall be made available to Client, per Section 8.3.  If contracted, IT support services are available to Client during regular business hours from 8 a.m. to 5 p.m. Eastern Standard Time, Monday through Friday.  onCloud shall respond after a request is made by telephone, or email, by Client for Systems Support as soon as commercially practical on a commercially best effort basis. Client support may be provided by onCloud or its duly authorized representative.  No after hours support will be available unless mutually agreed in the SoW by the parties.


 8.2  Installation and Training.  onCloud shall install the devices and software and perform the services described, at the locations listed, in the SoWs executed herewith.  If applicable, onCloud will train a servicing contractor in troubleshooting and installation.  onCloud may use subcontractors or agents to perform its obligations hereunder, provided that onCloud notifies Client thereof and remains primarily liable for any acts or omissions of such subcontractors or agents hereunder. onCloud agrees to use its commercially best efforts to ensure the continuity of individuals and companies assigned to perform the installation and troubleshooting.  onCloud shall also use its commercially best efforts to ensure that any change does not materially impede the progress of the engagement or materially increase the likelihood that delivery schedules will not be met. 


9.  OBLIGATIONS OF CLIENT


9.1  Proper Use.  Client will not sell, lease, license, or transfer the System, in whole or in part, or permit the use by or for the benefit of any other person or party of the System without the prior written consent of onCloud, and that it will not perform data service functions utilizing the System except as expressly provided for herein for Client's own internal operating purposes.


9.2  Reproduction.  Client will not copy or reproduce in any fashion, in whole or in part, any materials, documentation, or forms of any description comprising the software that is provided to Client herewith, except as Client shall use such materials, documentation, and forms in the use of the System in accordance herewith and at the locations of Client described herein, and except that Client shall have the right to duplicate the software for archival/back-up and disaster recovery purposes. 


9.3  Client's Responsibility Over System.  Client will be exclusively responsible for the supervision, management, and control of the use of the System and related materials, including, but not limited to:  (i) audit control, and operating procedures; and (ii) providing for adequate training on System operation, procedures, and controls for Client's personnel other than in connection with Section 8.  Client will notify onCloud of any servicing work done in any site (except emergency service work), which could materially affect the operation of the System, prior to the service.


10.  NO GRANT OF USE FOR OWNERSHIP


10.1  onCloud solely owns the intellectual property in the Work Product. All onCloud provided systems, software and licenses remain the property of onCloud unless explicitly transferred to the Client.  Client is leasing use of systems, software and licensing. Upon termination of the Agreement, Client forfeits the right to use all onCloud provided systems, software and licenses.  This Agreement does not constitute a license to use the Property (as defined below) other than as specified herein and regarding the use of the System.  Nothing in this Agreement, the SoWs, or the disclosure of Property to Client shall be deemed, by implication or otherwise, to convey to Client any patent rights, trade secrets, or other proprietary rights of in the Property or equipment of onCloud. 


10.2  Customer Content. As between onCloud and Client, any Content given to onCloud by Client under this Agreement or otherwise, and all User Content, shall at all times remain the property of Client or its licensor.  onCloud shall have no rights in such Content or User Content other than the limited right to use such Content for the purposes expressly set forth in this Agreement.


11.  CONFIDENTIAL AND PROPRIETARY INFORMATION.


11.1  Privacy. Client acknowledges that in the course of work with onCloud, as set forth in the recitals, (a) Client will be privy to certain confidential and proprietary information of onCloud that constitutes trade secrets as defined in the Georgia Trade Secrets Act of 1990 (the "Act"); and (b) Client will be privy to certain other confidential and proprietary information of onCloud that may not constitute trade secrets as defined in the Act.


Client acknowledges that onCloud must protect both of the above kinds of confidential and proprietary information from disclosure or misappropriation, and Client further acknowledges that the idea of the business and its processes, creative files, technical documentation, computer programs (including website content), source codes, formulas, systems, client lists, lists of potential clients, lists of suppliers and vendors, business plans, marketing plans and techniques, financial data (including all pricing, costs, margins, and similar data), marketing programs, client files and information,  financial institution files, technical expertise and know how, and other information and trade secrets, whether as defined in the Act or which may lie beyond it (collectively the "Property"), which have been or will be provided by onCloud to Client, which have value to onCloud, and which are not generally known to competitors of onCloud, are unique, confidential, and proprietary Property of onCloud and that by the provision of such Property to Client, onCloud is not conveying any ownership or other interest to Client.  Such Property, though, shall not include any data or information (i) which has been voluntarily disclosed to the public by onCloud, except where such public disclosure has been made by Client without authorization from onCloud, (ii) which has been independently developed and disclosed by others, or (iii) which has otherwise entered the public domain through lawful means.  Client acknowledges that such confidential and proprietary information, the Property, derives independent, actual, and potential commercial value from not being generally, readily ascertainable through independent development and is the subject of efforts by onCloud, that are reasonable under the circumstances, to maintain its secrecy.  Client agrees to hold in trust and confidence for onCloud, and to not disclose to any third-party without prior written consent of onCloud, said Property, whether it is tangible or intangible.  Client further agrees not to use any such Property, without an additional contract between the Parties or an amendment hereto, to Client's benefit or for the benefit of any third-party; and both Parties will refrain from reverse engineering, decompiling or disassembling any software code and/or hardware devices disclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.  Client and onCloud agree that Client's obligations under the above non-disclosure provision, as they relate to confidential and proprietary information that does not constitute trade secrets, shall apply so long as the Property remains confidential.


11.2  Books of Record. Client agrees that any books and records relating in any manner whatsoever to the Property of onCloud, which records and books are listed, or are in addition to the records and information referenced and discussed in section 11.1 above, and which are or have been prepared by Client or otherwise have come into Client's possession, shall be the exclusive property of onCloud, regardless of who actually prepared or obtained the original books or records.  All such books and records shall be returned to onCloud by Client immediately upon termination of this Agreement unless otherwise stipulated in a separate contract.  Further, upon the request of onCloud, Client will return to onCloud all Property containing any confidential and proprietary information, whether such materials are in tangible or computer-readable form, and including all copies of such items.


11.3  Confidentiality. Client shall treat all confidential and proprietary information, including, but not limited to, the Property of onCloud, with the same care that it uses to protect its most sensitive and important proprietary information or, at the very least, with the care that a reasonable person would use to prevent the misuse or misappropriation of such information.


12.  NON-SOLICITATION OF EMPLOYEES.  Client agrees during, and for a period of five (5) years following, the term of this Agreement, not to actively recruit, engage in passive hiring efforts, solicit, or induce any person or entity who, during such period, or within one (1) year prior to the execution of this Agreement, was an employee, agent, or representative of onCloud, to leave or cease his or her employment or other relationship with onCloud for any reason whatsoever or hire or engage the services of such person for Client in any business substantially similar to, or competitive with, that in which onCloud is engaged within five (5) years preceding the termination of Client's employment with onCloud.  As onCloud provides services to customers across all states, the territory in which this non-solicitation covenant shall apply across the entire United States of America.



13.  GENERAL PROVISIONS


13.1  Sale, Transfer, or Assignment of This Agreement.  This Agreement shall be binding on the parties and their successors and permitted assigns.  However, Client may not assign its rights or obligations under this Agreement in whole or in part without the prior written consent of onCloud, which consent may not be unreasonably withheld.  Notwithstanding the foregoing, either party may assign its rights or obligations in whole or in part under this Agreement to a wholly-owned subsidiary of its parent or to an entity under common control, or pursuant to a merger, consolidation, reorganization, or a sale of substantially all of its assets; provided that any such assignment shall not relieve either party of its obligations under this Agreement.


13.2  Governing Law. This Agreement, and any other claim or cause of action arising out of the relationships between the parties herein (including, but not limited to, causes of action sounding in tort), shall be governed by, and construed in accordance with, the laws of the State of Georgia.


13.3 Compliance with Laws.  onCloud and Client shall make their best effort to comply with the applicable international, national, and local laws and regulations.


13.4  Severability and Waiver. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall, nevertheless, continue in full force without being impaired or invalidated in any way.


13.5  Waiver of Breach.  Failure or delay of either party herein to insist upon compliance with any provision hereof shall not operate as, and is not to be construed as, a waiver or amendment of such provision or the right of the aggrieved party to insist upon compliance with such provision or to take remedial steps to recover damages or other relief for noncompliance. Any express waiver of any provision of this Agreement shall not operate, and is not to be construed as, a waiver of any subsequent breach, whether occurring under similar or dissimilar circumstances.


13.6  Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.


13.7 Independent Contractors.  The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.  Neither party shall have the power to obligate or bind the other party.  Personnel supplied by onCloud shall work exclusively for onCloud and shall not, for any purpose, be considered employees or agents of Client.  onCloud assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.


13.8  Attorney's Fees and Litigation Expenses.  Should any litigation arise between the parties from this Agreement, then the prevailing party shall be entitled to receive its reasonable attorneys’ fees and litigation expenses from the other party.


13.9 Pronouns and Plurals.  All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular, or plural as the identity of the person, persons, or entity may require.


13.10 Force Majeure.  onCloud shall not be liable or otherwise responsible for any default or delay attributable to Force Majeure.  “Force Majeure” shall mean any cause, circumstance, or contingency, including forces of nature, beyond the reasonable control of onCloud.  If onCloud’s performance is delayed by any such cause, time for delivery will be extended by a period reasonably necessary to overcome the effect of such delay.


13.11 Notice.  Unless otherwise stated herein, any notices required or permitted hereunder shall be in writing duly signed by the issuing party, and given to the appropriate party at the address specified above or at such other address as the party shall specify in writing.  Such notice shall be deemed given: upon personal delivery; or once confirmed received/signed for through certified services of the: USPS, UPS, FedEx, etc. seven (7) days after the date of confirmation, except for those notices that may be delivered via email to Client at the email address designated for the Client.


13.12  Consent to Injunction.  It is understood and agreed that a breach by Client of the covenants herein, including the restrictive covenants for which no liquidated damages apply, will cause irreparable damages to onCloud.  Therefore, the parties agree that in the event Client breaches any of these covenants, onCloud shall be entitled to a grant of injunctive relief, without notice to Client, and without the necessity of posting any bond, and without showing or proving actual damages, from a court of competent jurisdiction, in addition to any other remedies allowed by law.


13.13  Entire Agreement.  This Agreement supersedes all other agreements, either oral or in writing, between the parties with respect to the subject matter hereof and contains all of the covenants and agreements between the parties with respect to the work to be performed hereunder.  Each party herein acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by either party herein, or by anyone acting on behalf of either such party, that are not embodied in this Agreement, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding.  Any modification of this Agreement will be effective only if it is in writing, signed by both of the parties.


13.14  Reliance.  The parties represent and acknowledge that in executing this Agreement they do not rely, and have not relied, upon any representation or statement not set forth herein with regard to the subject matter, basis, or effect of this Agreement.


13.15  Presumption.  This Agreement or any section thereof shall not be construed against either party due to the fact that said Agreement or section hereof was drafted by either such party.


13.16 Consent as to Signature.  It is hereby expressly understood and agreed, and the parties do hereby represent, covenant, and warrant that the signatures below are genuine and are freely, knowingly, and willingly affixed hereon and understood by both parties.


13.17 Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.


13.18 Further Assurances. Both of the parties hereto shall, upon the reasonable request from the other party and without further consideration, execute and deliver any reasonably necessary document and take such reasonably necessary action to complete and give effect to this Agreement.



In Witness Whereof, the parties have freely and voluntarily caused this Agreement to be executed individually or by their duly authorized officer by electronic acceptance of checking the box "I have READ, ACKNOWLEDGE, UNDERSTAND and AGREE to the Terms of Service" during the signup process.


Revised 3/4/2020

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