Terms and Conditions
1. Definitions
1.1 “Company” means the business entity and individual signing the goCloudOffice, Inc. (“goCloudOffice”) Workorder or Project Assignment, or subscribing to an goCloudOffice Membership via www.goCloudOffice.com or sending an email to the goCloudOffice Support Ticket system via email or submitting a Customer Support Request form via the Support button from www.goCloudOffice.com.
1.2 “goCloudOffice Component” means any system architecture, software, process, algorithm or other Intellectual Property of goCloudOffice which goCloudOffice develops or delivers in conjunction with the Services hereunder, and all Derivative Works based thereon.
1.3 “Workorder” means either a workorder paper form signed by both parties or an email sent by Company to the goCloudOffice Support Ticket system or a Customer Support Request form submission by Company via the Support button from www.goCloudOffice.com.
1.4 “Deliverable” means either any specific, unique deliverable created by goCloudOffice according to Company’s specifications as set forth within a Project Assignment agreed upon by the parties, or the delivery of Services.
1.5 “Derivative Work” means any modification or extension of any current invention, process, algorithm, software program, trade secret, other work of authorship or other Intellectual Property right.
1.6 “Intellectual Property” means copyright rights in any and all copyrightable works (including, without limitation, rights in written work, designs, pictures, videos, graphics, artwork, software, moral rights, authors rights, and the exclusive, world-wide right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, trade dress and look and feel), patent rights (including, without limitation, the exclusive right to make, have made, use and sell), trade secret rights (including, without limitation, formulae, system architecture information and designs, network information and designs, processes, techniques, ideas, artwork, algorithms, rights to technical developments, designs, business methods, business processes and inventions whether or not patentable), right of publicity, contract and licensing rights, goodwill, know-how, any invention or other new or useful art, discovery or improvement, and all other intellectual property and intangible rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States and/or any other state, country or jurisdiction.
1.7 “Services” means the services provided hereunder pursuant to any Project Assignment.
1.8 “Effective Date” means the date work or agreement start date on any approved goCloudOffice Work order or Project Assignment.
2. Project Assignments.
2.1 Meetings. The Project Managers shall schedule regular meetings, to be held either remotely or in person, at mutually agreeable times and locations during the term hereof, to be participated in by personnel of each party, to discuss the status of each Project Assignment. The party calling the meeting will provide reasonable notice for meetings it wishes to hold. The Company will reimburse goCloudOffice’s travel and subsistence expenses associated with the attendance of goCloudOffice personnel at meetings which are held in person. “Project Manager” shall mean the primary contact person designated by each party, in writing, who will coordinate the activities of the parties hereunder. Each party may change its designated Project Manager from time-to-time by written notice.
2.2 Target Delivery Dates. goCloudOffice will use commercially reasonable efforts to meet the target delivery dates set forth within each Project Assignment or Workorder. Such completion dates are estimates only.
2.3 Cost Estimates. Unless a project is specified as a Fixed-Price Project, all cost estimates are estimates only and the final cost may vary. Unless otherwise stated, any cost estimates and/or price quotes are valid for 10 days from the date of the cost estimate and/or price quote.
3. Company Property. goCloudOffice acknowledges that the Company’s property includes all documents, such as drawings, designs, blueprints, manuals, notes, notebooks, reports, formulas, memoranda, records, files, computer programs, machine listings, data and the like delivered to goCloudOffice by Company. goCloudOffice agrees to redeliver all Company property and all copies of Company property in goCloudOffice’s possession to Company promptly upon Company’s request or upon termination of this Agreement for any reason, except for one copy which goCloudOffice may retain for its records in its confidential files, and as Company may, by prior written permission, otherwise allow goCloudOffice to retain.
4. Relationship of Parties. goCloudOffice shall perform the Services under the general direction of Company, but goCloudOffice shall determine in its sole discretion, the manner and means by which the Services are accomplished. goCloudOffice is an independent contractor and neither party is an agent or employee of the other party, or has the authority to bind the other party.
5. Proprietary Rights in Work Product and Data; License Rights.
5.1 Rights in Deliverables. The rights relating to any Deliverables developed by goCloudOffice under this Agreement are as follows: Effective upon delivery by goCloudOffice and acceptance and payment by Company for each Deliverable and all amounts due, goCloudOffice agrees to assign all right, title and interest in the Deliverables delivered to Company under each Project Assignment, provided, however, that such assignment shall be subject to and consistent with the other provisions of this Agreement including Section 5 herein below.
5.2 goCloudOffice Components. Company acknowledges and agrees that notwithstanding the provisions of Section 5.1 (“Rights in Deliverables”) above, goCloudOffice retains all right, title and interest and all ownership rights in any and all goCloudOffice Components embodied in the Deliverables delivered to Company under each Project Assignment. Effective and contingent upon acceptance by Company of the corresponding Deliverable(s) and full payment to goCloudOffice in connection with such Deliverables, goCloudOffice grants and Company accepts a worldwide, nonexclusive, nontransferable, royalty-free license to the goCloudOffice Components for use by Company solely as part of a Deliverable delivered to Company under the applicable Project Assignment or as part of a Company Product incorporating such Deliverables. Neither Company nor its sublicensees, contractors or agents shall have any other rights whatsoever to the goCloudOffice Components.
5.3 Nothing in this Agreement shall restrict or prevent goCloudOffice from using any ideas, concepts, know-how, methodology, techniques or other Intellectual Property related to the Services or Deliverables under this Agreement (“Working Rights”), provided that the use of any Working Rights does not infringe the patent, copyright, trademark or trade secret rights of Company, or result in an intentional breach of the provisions of Section 8 (“Confidentiality”).
5.4 Right to Perform Consulting Services for Others: Except as otherwise expressly provided in this Agreement, nothing in this Agreement shall restrict or limit goCloudOffice from performing consulting or other services similar in nature to the Services provided hereunder for any third party, both during and after the term of this Agreement and any Project Assignment.
5.5 Noninterference. During the term of this Agreement and any Project Assignment hereunder, and for a period of one (1) year immediately following its termination, each party agrees not to solicit or induce any employee, independent contractor, consultant or subcontractor to terminate or breach an employment, contractual or other relationship with the other party.
6. Taxes. The fees set forth in a Project Assignment do not include any sales or use taxes now or hereafter enacted, or without limitation any federal, local or other governmental taxes which would normally be the responsibility of Company (and except for taxes based on goCloudOffice’s net income), including duties, licenses, fees, excises or tariffs, that are applicable to the Services (“Taxes”). Company agrees to pay and indemnify goCloudOffice against all Taxes, and any interest and penalties associated therewith, whether levied or invoiced at or after the time of goCloudOffice’s performance.
7. Working Facilities and Information. Company shall supply to goCloudOffice, at Company’s sole expense, with access to the information, services and systems as goCloudOffice shall reasonably request for performance of each Project Assignment. goCloudOffice shall also be furnished with all facilities, information, services, systems and support as are suitable and adequate for the performance of its duties, to the extent that applicable Project Assignments require work to be performed at Company’s facility.
8. Confidentiality. Each party (“Recipient”) agrees to protect the confidential nature of the other party’s (“Discloser’s”) Confidential Information with the same degree of care Recipient uses to protect its own confidential information of a similar nature, but in no event less than reasonable care. “Confidential Information” means any information provided to Recipient by Discloser in connection with the Services which is confidential and proprietary to Discloser and conspicuously marked as confidential at the time provided by Discloser, or otherwise identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days thereafter. Notwithstanding the above, goCloudOffice Components and Intellectual Property shall be considered confidential without the necessity of marking. Recipient may disclose Discloser’s Confidential Information only to (i) those employees who have a need to know the information and who are assigned to or participating in the procurement or delivery of Services, or (ii) subcontractors and agents of Recipient who have a need to know the information to fulfill the purpose of the relevant Project Assignment; provided, however, that each such employee, subcontractor or agent shall be under a written obligation of nondisclosure at least as rigorous as the requirements of this Section. Notwithstanding anything to the contrary herein, neither party will have an obligation of confidentiality with respect to any information that (i) was in the public domain at or subsequent to the time it was communicated to Recipient by Discloser through no fault of Recipient; (ii) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by the Discloser; (iii) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by the Discloser, as shown by clear and convincing written evidence; or (iv) is required to be disclosed by law, court order or governmental authority, provided, however, that Recipient shall provide prompt written notice thereof to enable Discloser to seek a protective order or otherwise prevent such disclosure.
9. Approval.
9.1 Paper Forms. Any Workorders or Projecet Assignments printed on paper are considered as approved when signed by both Company and goCloudOffice.
9.2 Electronic Forms. Any Workorders or Project Assignments submitted by Company as an email to the goCloudOffice Support Ticket system or as a Customer Support Request form submission by Company via the Support button from www.goCloudOffice.com are considered approved after the goCloudOffice Support Ticket system has emailed a confirmation email to Company and goCloudOffice has not canceled the ticket.
10. Acceptance.
10.1 Unless otherwise provided in the applicable Workorder, or Project Assignment, Services and Deliverables associated with Workorders or Project Assignments performed hereunder shall be deemed accepted by Company upon delivery by goCloudOffice.
11. Payment for Services. Company shall pay goCloudOffice the fees for Services set forth within approved Workorder or Project Assignments or Current Pricing, together with reimbursement for goCloudOffice’ costs and expenses as provided therein. Unless agreed otherwise in writing fees are calculated based on Current Pricing and payment terms are: “Payment due upon receipt of Invoice”. If Company fails to make timely payments, then Company agrees to pay interest on the unpaid balance at the higher of twenty-six point nine percent (26.9%) per annum or the highest rate allowed by law, plus $9.50 administrative charge for each late payment notice for undisputed charges sent to Company. One late payment notice may be sent each week after invoices become delinquent. Each Workorder or Project Assignment shall be considered a separate agreement and a breach of obligations thereof shall not affect the Agreement as a whole, or other Workorders or Project Assignments, except for a failure of Company to timely pay fees and expenses due under an approved Workorder or Project Assignment.
12. Warranties.
12.1 Warranty of Performance. goCloudOffice warrants that it will perform the Services for each Workorder, or Project Assignment in accordance with generally accepted standards in effect at the time of such performance.
12.2 Except for the express warranty in section 11.1, goCloudOffice makes no other warranties with respect to the services or the deliverables, express, implied or statutory, and goCloudOffice expressly disclaims all other warranties, including but not limited to the implied warranties of non-infringement, merchantability and fitness for a particular purpose. in the case of a breach of warranty by goCloudOffice, company’s sole and exclusive remedy shall be at goCloudOffice’s option (i) to reperform the defective services without charge for goCloudOffice’ time expended or (ii) receive a pro rata refund of the fees paid to date for the project assignment.
13. Indemnification.
13.1 Third Party Claims. If Company develops a product, process or service based in part on a Deliverable (“Company Product”), then Company assumes full responsibility for final review, testing and approval of all features of any such Company Product. Unless otherwise agreed, this period for final review, testing and approval for all features shall not exceed ten (10) business days. Company also assumes all responsibility for any information and/or specifications it provides to goCloudOffice regarding the Services and agrees that goCloudOffice may rely on such information and/or specifications without independent verification. Company assumes all responsibility for and agrees to indemnify, defend and hold goCloudOffice harmless from any liabilities in connection with it’s or a third party’s use of the Deliverables, and in circumstances where a third party alleges that (i) it has been damaged by a defect in a Company Product or (ii) a Company Product infringes its Intellectual Property rights. goCloudOffice may participate in any such defense or settlement with counsel of its own choosing at Company’s expense.
14. Consequential Damages Waiver. goCloudOffice shall not be liable to company or any other party for any loss of use, interruption of business or any indirect, exemplary, special, incidental or consequential damages of any kind (including lost profits or loss of data) regardless of the form of action whether in contract, tort (including negligence), strict product liability or otherwise, even if goCloudOffice has been advised of the possibility of such damages.
15. Limitation of Liability. in no case shall goCloudOffice’s aggregate liability in connection with any and all project assignments of whatever nature, including any software developed pursuant thereto, exceed the lesser of the monies received by goCloudOffice from company pursuant to the relevant project assignment during the prior six (6) month period preceding the event giving rise to liability, minus all claims reviously paid hereunder, or $50,000. This limitation is cumulative for all claims howsoever arising under all agreements, and this limitation shall apply even if the remedies provided in this agreement shall fail of their essential purpose.
16. Term and Termination; Survival.
16.1 Term and Termination. This Agreement shall commence on the Effective Date and shall continue until terminated as follows:
(a) Either party may terminate a Project Assignment if a material breach of this Agreement is not cured within thirty (30) days after receiving written notice thereof;
(b) Either party may terminate a Workorder submitted via email or via electronic form at www.goCloudOffice.com at any time after such Workorder has been created, by responding to any email related to this specific Workorder with the term: “TERMINATE REQUEST” written in the body of the response email. After such termination Company will be obligated to pay for all services provided and expenses accrued by goCloudOffice in conjunction with this Workorder up to the point of termination;
(c) Either party may terminate this Agreement upon written notice to the other party if either party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes a general assignment for the benefit of creditors, is unable to meet its obligations in the normal course of business as they fall due, or if a receiver is appointed on account of insolvency;
(d) Either party may terminate this Agreement for its convenience upon thirty (30) days written notice to the other if there is no outstanding Project Assignment in effect;
(e) goCloudOffice may terminate this Agreement and all Project Assignments and all Workorders if Company fails to make payments due and payable to goCloudOffice on any Project Assignment or Workorder and such failure is not cured within ten (10) days after receiving written notice thereof.
16.2 Survival. 5 (“Proprietary Rights in Work Product and Data; License Rights”), 6 (“Taxes”), 8 (“Confidentiality”), 11 (“Warranties”), 12 (“Indemnification”), 13 (“Consequential Damages Waiver”), 14 (“Limitation of Liability”), 15 (“Term and Termination; Survival”), 16 (“Dispute Resolution”) and 17 (“General Provisions”) will survive any termination of this Agreement. Additionally, any and all payment obligations and payment related provisions under this Agreement and any Project Assignments and any Workorder shall survive termination.
17. Dispute Resolution
17.1 Except for actions based upon the nonpayment of money, or suit to compel compliance with this dispute resolution process, the Parties agree to use the dispute resolution procedures in this Section for any controversy or claim arising out of or relating to this Agreement. The Parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims related to this Agreement. The Parties will promptly meet and confer with the goal of settling such dispute. If they are unable to reach a prompt, amicable agreement, the Parties will submit the matter to non-binding mediation through the Judicial Arbitration and Mediation Service, Inc., (“JAMS”), through its San Jose, California office. JAMS will be requested to provide a mediator with expertise in technology and consulting agreements. Failing the resolution of their dispute by mediation, the dispute will be fully and finally settled by binding arbitration under the auspices of JAMS. Both the mediation and arbitration will be conducted in San Jose, California in English. An arbitrator with a background in technology and consulting agreements shall be selected by the Parties according to the rules of JAMS. The arbitrator will not have power or authority exceeding that of a superior court judge sitting without a jury, or to award punitive damages to either Party. Each Party shall bear its own expenses, but the Parties will share equally the expenses of the mediator, arbitrator and JAMS. Any judgment by the arbitrator may be entered in any court of competent jurisdiction. Client agrees that any legal action in connection with this Agreement will be brought only in the state and federal courts located in Santa Clara County, California, the Parties submit to the personal jurisdiction of such courts, and Client waives any right to seek a change of venue to any other court. If arbitration becomes necessary, the prevailing party shall be entitled to recover all reasonable costs, expenses, and attorney’s fees related to the arbitration, which shall be made a part of the arbitration award.
18. General Provisions.
18.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. Any legal action brought by Company in connection with this Agreement will be brought only in the state and federal courts located in Santa Clara County, California, the parties hereby submit to the personal jurisdiction of such courts, and Company waives any right to seek a change of venue to any other court. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement if otherwise applicable.
18.2 Severability; Headings; Counterparts. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will either be amended to achieve as nearly as possible the intent of the parties, or if amendment is not possible the offending provision shall be deemed struck, and the remainder of this Agreement will remain in full force and effect. The captions and other headings contained in this Agreement are for convenience only and shall not be considered a part of or effect the construction and interpretation of any provision of this Agreement. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
18.3 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon receipt of written verification of receipt; (iii) by facsimile transmission upon when confirmed by telecopier or facsimile transmission; (iv) by certified or registered mail, return receipt requested, upon verification of receipt, or five (5) days after deposit in the mail, or (v) by electronic mail, followed by certified or registered mail, return receipt requested, upon verification of such receipt. Notice shall be sent to the addresses (regular and/or electronic) and facsimile numbers set forth above or such other address or facsimile number as either party may specify in writing.
18.4 Publicity. Notwithstanding anything to the contrary in this Agreement, either party shall be free to disclose and publicize the existence (but not the terms) of a contractual relationship between the parties. Any substantive advertising, press releases or other publicity which discusses a project under this Agreement, or goCloudOffice’s role in the development of any Company Product under any Project Assignment hereunder shall require the prior written consent of both parties.
18.5 Force Majeure. Neither Party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the Party.
18.6 Waiver. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
18.7 Successors and Assigns. Neither party may assign its rights or obligations arising under this Agreement without the other party’s prior written consent. Any such attempted assignment shall be void. This Agreement will be for the benefit of the permitted successors and assigns, and will be binding on heirs, legal representatives and permitted assignees.
18.8 Entire Agreement; Modification. This Agreement, together with approved Project Assignments, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all Services under all Project Assignments. In the event of a conflict between the terms and conditions of this Agreement and any Project Assignment, the terms and conditions of the Project Assignment shall control. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.
18.9 Valid Date. These Terms and Conditions apply to all Services provided on or after the date provided on the header or footer of this document. This document may be changed without prior notice for engagements not in effect at the time of revision. To obtain the most current revision of this document go to www.goCloudOffice.com.
Revision: 02/01/2015