MANAGED CONSULTING TERMS OF SERVICE

Last Updated: April 16, 2019

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” YOU AGREE TO THESE TERMS AND CONDITIONS.

These Managed Consulting Terms of Service (“TOS” or “Terms”) create a legally binding contract between Cloudfit Software LLC (“Service Provider”) and you (“You,” “Your”, “Customer”).  This TOS is effective as of the date You click “Accepted and Agreed To” (the “Effective Date”).

The parties have agreed that Service Provider will provide such professional services as set forth below, and as requested from You from time to time, and confirmed by Service Provider with an order confirmation (“Order Confirmation”). Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the parties hereby acknowledge, the parties agree as follows.

    1. Services.  Service Provider shall provide the services to Customer as described in the Order Confirmation (the “Services”) in accordance with these Terms.
      1. Velocity Software.  In connection with Your use of the Services during the Term, You may access and use the Velocity online software system (“Velocity”) by way of our portal.  Service Provider may revise the features and functions of Velocity at any time.
      2. Reservation of Rights.  All intellectual property rights of Service Provider, including those embodied in Velocity, that are not otherwise granted or authorized for Customer use in this TOS are reserved and retained by Service Provider. Except as expressly provided in this Agreement, no other assignments or licenses of intellectual property are granted whatsoever, whether expressly or by implication or by estoppel, by any party hereto.
    2. Performance Dates.  Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.
    3. Customer Obligations.  You shall: (a) cooperate with Service Provider in all matters relating to the Services and provide such access to Your premises, and such office accommodation and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services; (b)  respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this TOS; (c)  provide such materials or information as Service Provider may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (d)  obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
    4. Customer’s Acts or Omissions. If Service Provider’s performance of its obligations under this TOS is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this TOS or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
    5. Changes Orders.  If You wish to change the scope or performance of the Services, You must submit details of the requested change to Service Provider in writing. Service Provider shall, within a reasonable time after such request, provide a written estimate to You of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; and (d)  any other impact the change might have on the performance of this TOS.  Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.
    6. Fees and Expenses; Payment Terms; Interest on Late Payments; Taxes.  In consideration of the provision of the Services by Service Provider and the rights granted to You under this TOS, You shall pay the fees set forth in the Order Confirmation.  You agree to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.  You shall pay all invoiced amounts due to Service Provider within 30 days from the date of Service Provider’s invoice. You shall make all payments hereunder in US dollars by wire transfer, check or credit card.  In the event payments are not received by Service Provider within 30 days after becoming due, Service Provider may: (a) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (b) suspend performance for all Services until payment has been made in full.  You shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by You hereunder.
    7. Intellectual Property Ownership.  Customer acknowledges that, as between Customer and Service Provider, Service Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP. “Provider IP” means the Services, any related documentation, and any and all intellectual property provided to Customer or any authorized user in connection with the foregoing. For the avoidance of doubt, Provider IP includes the Velocity and any information, data, or other content derived from Service Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Confidential Information.
    8. Confidentiality.  Except for any license or other right expressly granted under this TOS, each party reserves all right, title and interest (including, without limitation, any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other party under this TOS. The parties will comply with the terms of any nondisclosure agreement between the parties. If no such agreement exists, the receiving party of any Confidential Information (“Recipient”) will protect Confidential Information of the disclosing party (“Discloser”) against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this TOS; (b) any use or disclosure required by applicable law (e.g. pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the  Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.  As used in this TOS, “Confidential Information” means any trade secrets or other information that is not generally available to the public, that is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser, or any information that a party is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business, or other nature (including, but not limited to, information which relates to a party’s technology, research, development, products, services, pricing of products and services, customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). However, Confidential Information does not include any information that: (a) was known to the Recipient prior to receiving the same from the Discloser in connection with this TOS; (b) is independently developed by the Recipient without reference to the Confidential Information of the Discloser; (c) is acquired by the Recipient from another source without restriction as to use or disclosure; or (d) is or becomes known to the public through no fault or action of the Recipient.
    9. Representation and Warranty.  Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this TOS.  The Service Provider shall not be liable for a breach of the warranty set forth in this section unless Customer gives written notice of the defective Services, reasonably described, to Service Provider within 7 days of the time when Customer discovers or ought to have discovered that the Services were defective.  Service Provider shall, in its sole discretion, either: (a) repair or re-perform such Services (or the defective part); or (b) credit or refund the price of such Services at the pro rata contract rate.  THE REMEDIES SET FORTH IN THIS SECTION 9 SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 9.
    10. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9 ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
    11. Limitation of Liability. 
      1. Dollar Cap. SERVICE PROVIDER’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE ACTUAL FEES PAID BY YOU TO SERVICE PROVIDER.
      2. Exclusion of Consequential Damages. IN NO EVENT WILL SERVICE PROVIDER BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS TOS.
      3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 11 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF SERVICE PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 11, Service Provider’s liability will be limited to the maximum extent permissible.
    12. Term & Termination.
      1. Term. The term of this TOS (the “Term”) will commence on the Effective Date and continue until terminated by either You or Service Provider.
      2. Termination. Either party may terminate this TOS for any reason at any time. You may terminate this TOS by closing Your account. Service Provider may terminate by notifying You in writing and closing Your account.
      3. Effects of Termination. Upon termination of this TOS, You shall cease all use of the Services. The following provisions will survive termination of this TOS: Sections 7 (Intellectual Property Ownership), 8 (Confidentiality), 11 (Limitation of Liability), 12.2 and 12.3 (regarding termination), 13 (General); and any other provision of this TOS that must survive to fulfill its essential purpose.
    13. General.
      1. Independent Contractors. The parties are independent contractors. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
      2. Notices. Service Provider may send notices to You by email at the email address  provided by You, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this TOS to Service Provider by email to legal@cloudfitsoftware.com, and such notices will be deemed received 72 hours after they are sent.
      3. Assignment & Successors. You may not assign this TOS or any of Your rights or obligations under this TOS without Service Provider’s express written consent. Except to the extent forbidden in this Section 13.3 this TOS will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
      4. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this TOS invalid or otherwise unenforceable in any respect. In the event that a provision of this TOS 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 TOS will continue in full force and effect.
      5. No Waiver. Neither party will be deemed to have waived any of its rights under this TOS by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this TOS will constitute a waiver of any other breach of this TOS.
      6. Choice of Law & Jurisdiction: This TOS will be governed solely by the internal laws of the State of Washington, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. This Section 13.6 governs all claims arising out of or related to this TOS, including without limitation tort claims.
      7. Conflicts. In the event of any conflict between this TOS and any Service Provider policy posted online, including without limitation the Privacy Policy, the terms of this TOS will govern.
      8. Amendment and Modification. This TOS may only be amended or modified in a writing which specifically states that it amends this TOS and is signed by an authorized representative of each party.
      9. Entire TOS.  This TOS, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this TOS and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.