Schedule 1: MASTER LICENSE AND SERVICES AGREEMENT
This Master Services Agreement (“Schedule 1”) of the Agreement and is made as of the Agreement’s Effective Date by CloudMine, Inc., a Delaware corporation with an address at 1217 Sansom Street, Suite 600, Philadelphia, PA 19107 (“CloudMine”) and Customer.
For good and valid consideration, the receipt and sufficiency of which is hereby acknowledged, CloudMine and Customer, intending to be legally bound hereby, agree as follows:
- Revision. The Terms are subject to occasional revision. If material changes are made, we may notify you by via email. Any changes to the Terms will be effective following our posting of notice of the changes on our Site. We encourage you to periodically review the Terms of Services. Continued use of the Services following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the new, modified Terms.
- License; Proprietary Rights. CloudMine grants Customer a limited, revocable, non-transferable, non-sublicenseable (except to end users of Customer’s mobile applications), worldwide license to access and use CloudMine’s Services rendered through its proprietary web-based application interface (such interface, the “API”, and the Services provided through the API, the “API Services”) solely for the purpose of data storage, retention and retrieval for Customer’s mobile applications and Customer’s internal business purposes. If Customer is receiving a free trial, this license shall automatically terminate after thirty (30) days unless Customer and CloudMine mutually sign a Master License and Services Agreement. CloudMine or Customer may terminate a trial immediately for any reason upon notice to the other party, email sufficing. Customer shall not grant third parties access to the API or the Services, or use the Services for service bureau-type activities, resale or distribution, without CloudMine’s prior written consent. Customer may not disclose the results of any benchmark or performance testing with respect to the Services without CloudMine’s prior written consent. Customer is solely responsible for complying with (and ensuring that its mobile application end users comply with) applicable intellectual property and other laws in connection with its use of the Services, as well as with CloudMine’s applicable policies and terms of service, as posted on CloudMine’s website or provided to Customer from time to time. CloudMine may terminate or suspend any of Customer’s mobile application end users’ access and use of the Services if CloudMine reasonably believes that their use constitutes illegal activity or an infringement of intellectual property rights, interferes with the CloudMine platform or others’ use of the platform, violates the terms of this Agreement or could result in civil or criminal liability for CloudMine. Except as specifically permitted in this Agreement, Customer agrees to keep confidential and not to disclose to any third party, without CloudMine’s prior written consent, CloudMine’s proprietary API software and technology and all other non-public business or technical information relating to the Services (collectively, the “CloudMine Materials”), which Customer acknowledges constitute CloudMine’s copyrighted works, proprietary information and trade secrets. Title to the Services and the CloudMine Materials is at all times owned by CloudMine, along with all worldwide patent, copyright and other intellectual property rights and all trademarks, service marks and trade names used with the CloudMine Materials and the Services, together with all associated goodwill. Customer agrees (i) not to copy, distribute, modify, display, de-compile, disassemble or reverse-engineer the Services or the CloudMine Materials, or combine or merge them with any other product, service or materials (except for integrating the API with Customer’s mobile applications and systems in accordance with CloudMine’s instructions and specifications), without CloudMine’s prior written consent, or attempt to derive the source code or underlying ideas, inventions or algorithms for the CloudMine Materials; and (ii) that any permitted copies shall bear CloudMine’s proprietary notices as appearing in the original material. All rights not expressly granted to Customer in this Section 3 are reserved to CloudMine. In addition, CloudMine shall exclusively own and have the right to freely use all ideas, inventions, feedback, suggestions, improvements, modifications and other developments relating to the API or the CloudMine Materials (collectively “Improvements”) suggested or created by either party in connection with this Agreement, without any obligation to obtain Customer’s consent or pay any compensation. Customer hereby assigns all worldwide rights in and to any Improvements to CloudMine and shall execute such documents and take such further measures as CloudMine may reasonably request to record, perfect or enforce such rights. Where the parties mutually agree that CloudMine will perform custom implementation or development involving the API, all deliverables and other Improvements shall be covered by the license granted to Customer in the first sentence of this Section 3, unless provided otherwise in a separate agreement executed by the parties.Subject to the foregoing, CloudMine agrees to hold in confidence and not disclose to third parties or use (except in connection with this Agreement or as required by law or legal process) any non-public information belonging to Customer that is of a confidential or proprietary nature and is marked “confidential”. This obligation shall not apply to information that is independently developed or sourced without use of Customer’s confidential information.
- Limitation of Liability and Indemnification. EXCEPT AS PROVIDED AS AN EXCEPTION ON THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS”, WITH NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, ACCURACY, TIMELINESS AND ERROR-FREE OR UNINTERRUPTED OPERATION. IN NO EVENT WILL CLOUDMINE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, BUSINESS, REVENUE OR DATA, IN CONNECTION WITH THE SERVICES, EVEN IF CLOUDMINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. WITH RESPECT TO CUSTOMERS WITH PAID SUBSCRIPTIONS, CLOUDMINE’S ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY CLAIM OR ACTION OR SERIES OF CLAIMS OR ACTIONS RELATING TO THE SERVICES (WHETHER IN NEGLIGENCE, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION, INCLUDING ALL REQUESTS FOR SLA FEE ADJUSTMENTS), SHALL BE DIRECT DAMAGES NOT TO EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID BY CUSTOMER TO CLOUDMINE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION. WITH RESPECT TO ANY CUSTOMER WITH A FREE TRIAL SUBSCRIPTION, CLOUDMINE’S ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY CLAIM OR ACTION OR SERIES OF CLAIMS OR ACTIONS RELATING TO THE SERVICES (WHETHER IN NEGLIGENCE, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION), SHALL BE DIRECT DAMAGES NOT TO EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS ($100). IN NO EVENT SHALL CLOUDMINE HAVE ANY LIABILITY WHATSOEVER TO CUSTOMER’S END USERS, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY. WITHOUT LIMITING THE FOREGOING, CLOUDMINE SHALL HAVE NO LIABILITY TO CUSTOMER’S END USERS FOR ANY LOST PROFITS OR LOST OR DAMAGED DATA, NOR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER OR NOT CLOUDMINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SCHEDULE 1 OR ANY OTHER TERMS, ALL FREE TRIALS ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND WITHOUT ANY SERVICE LEVEL GUARANTEES AND WITHOUT INDEMNIFICATION. For the avoidance of doubt, if Customer and CloudMine mutually sign an agreement for a paid subscription following a free trial, any warranties, service level guarantees, and indemnification shall apply only to Customer’s paid subscription. Solely for paid subscriptions, CloudMine shall indemnify Customer and its members, officers, directors, employees, agents and contractors from any damages awarded by a court or settlement amounts agreed to in connection with a third-party claim or cause of action alleging that CloudMine’s Services furnished under this Agreement infringe a U.S. patent, copyright or trademark. CloudMine shall also assume and control the defense and settlement of any such claim or cause of action and bear the out-of-pocket costs thereof (including reasonable attorneys’ fees and court costs); however, CloudMine may not agree to any settlement which would impose an obligation upon Customer without Customer’s prior written consent, which shall not be unreasonably withheld. Should any portion of Services become, or in CloudMine’s opinion likely to become, the subject of a claim or cause of action, CloudMine shall, at its option and expense either: (i) procure for Customer the right to continue to use the infringing portion of the Services, or (ii) replace or modify the infringing portion of the Services to make its use non-infringing without loss of substantial functionality. Notwithstanding the foregoing, if CloudMine, in its sole discretion, determines that neither of the said options is reasonably available to it, CloudMine, at its option, may terminate Customer’s license for the allegedly-infringing portion of the Services or remove the allegedly-infringing Services, in which event CloudMine shall refund to Customer the unused portion of any Service Fee paid in respect of the portion of the Services. However, CloudMine shall have no liability or obligation to Customer with respect to any claim or cause of action based on (i) use of Services by Customer in combination with other business processes, products, devices, software, services or components which were not furnished to Customer by CloudMine or included with the Services, or which were not explicitly approved in writing by CloudMine, if the infringement would not have occurred but for the combination; (ii) modification or alteration of the Services or any part thereof by Customer, Customer’s end users or agents, if the infringement would not have occurred but for the modification or alteration; (iii) use of other than a currently supported, unaltered version of the API, API Services or Services, if the infringement would have been avoided by use of the currently supported unaltered version of the same Programs; (iv) continued use of the Services or portion thereof after CloudMine notifies Customer to discontinue use due to a claim, allegation or proceeding; (v) use of the Services by those other than authorized users; or (vi) use of the Services for a purpose other than that for which they were designed. This paragraph states CloudMine’s entire liability, and Customer’s sole and exclusive remedy, for claims and actions relating to intellectual property infringement, notwithstanding anything to the contrary elsewhere in this Agreement.Customer shall defend, indemnify and hold CloudMine and its members, officers, directors, employees, agents and contractors harmless from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (the “Claim”) made or brought against CloudMine (i) by a third party alleging that Customer’s mobile applications or any other product or service of Customer that uses the Services or any content thereof infringes the intellectual property rights of, or has otherwise harmed, a third party; (ii) by an end user of Customer’s mobile applications or other products or services that use the Services; or (iii) that relates to or arises out of the actions or omissions of an end user of Customer’s mobile applications or other products or services that use the Services. Customer shall include in its end-user agreements for any mobile applications or other products using the Services disclaimers and limitation of liability with benefitting CloudMine consistent with those provisions contained in this Agreement.
- Force Majeure. Neither Party shall be responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, such as riots, war, public disturbance, strike, labor dispute, fire, explosion, storm, flood, acts of God, acts of terrorism, internet or communication outages, computer virus, malicious acts or omissions of third parties and governmental action.
- General. This Agreement is the complete and entire agreement between the parties and supersedes all prior and contemporaneous agreements and communications with respect to the subject matter hereof. This agreement may not be modified except in a writing executed by both parties. All notices under this Agreement shall be in writing and sent via nationally recognized courier service or first-class mail, return receipt requested, to the party at the address provided in this Agreement or such other address as the parties provide to each other in writing; notices are effective upon receipt. This Agreement shall be construed in accordance with, and all disputes shall be governed by, the laws of the Commonwealth of Pennsylvania, without giving effect to the conflicts of laws rules thereof. Exclusive jurisdiction and venue for the adjudication of any disputes relating to this Agreement shall be in the state and federal courts (including the appellate courts) for the Commonwealth of Pennsylvania, and the parties hereby consent to the jurisdiction and venue of such courts. Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that CloudMine may, without consent, utilize subcontractors to perform its obligations under this Agreement and either party may assign this Agreement to (i) an affiliate or (ii) a successor in connection with a merger or a sale of substantially all its assets. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions shall remain in full force and effect as if said provision never existed. No failure or delay by either Party in exercising any rights, power or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. This Agreement is not intended to create any third-party beneficiary rights. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. Facsimile and electronically transmitted signatures shall be valid as originals.
- Data Ownership. All data uploaded and stored on CloudMine by Customer is the explicit property of Customer. Data can be transferred or exported from CloudMine servers at anytime utilizing CloudMine APIs or bulk export functions. CloudMine has no obligation to retain data following termination or expiration of a free trial unless Customer and CloudMine mutually sign an agreement for a paid subscription.
- Definitions. “Service Fees” shall be defined as the total fees CloudMine shall charge Customer for the usage of CloudMine’s API Services. ”API calls per sec” shall be defined as the total number of unique platform requests that makes one (1) or more calls to any of the API Services in the given calendar month as measured by our internal systems. “Data Usage” shall be defined as the number of gigabytes (“GB”) used by Customer’s application(s) to store files and object data as described in the CloudMine documentation located at https://cloudmine.io/docs. If Customer is receiving a free trial, the trial shall be subject to limits of 5 API calls per second and 0.5 GB of Data Usage.
- Data Encryption. CloudMine shall take all reasonable measures to keep secure the data it stores on behalf of Customer. In order to achieve this, all consumption of API Services shall be encrypted using industry-standard SSL technology. Additionally, all data stored within CloudMine shall be fully encrypted when at rest on the filesystem in order to prevent the theft of data in a human-readable format. CloudMine monitors for unauthorized breaches and breach attempts on servers under its control at all times and shall notify Customer within 24 hours of detection—via email or phone—any breaches that result in the theft of data in an encrypted or unencrypted form.
- HIPAA Compliance. All terms related to HIPAA and HIPAA HITECH compliance shall be outlined and agreed to in a separate Business Associate Agreement (“BAA”) between CloudMine and Customer. In the case that any terms conflict between this Agreement and the BAA, those specified in the BAA shall prevail. In the case that a BAA is not signed between CloudMine and Customer, Customer recognizes that it is not in compliance with HIPAA HITECH law and hereby acknowledges that Customer shall be fully liable and responsible for any and all actions, financial and otherwise, brought against it by the Department of Health and Human Services, or any other governmental body responsible for enforcing the terms of HIPAA HITECH regardless of whether Customer believes it is subject to the scope of HIPAA HITECH.