1. MASTER SERVICES AGREEMENT (MSA).

This Master Services Agreement  including independently signed and executed Statement of Work (SOW) and any other document independently signed and  incorporated into the SOW such as, but not limited to, change orders, work orders, equipment lists, process documents, authorization forms are between cloudIT, LLC an Arizona Corporation with principal offices at 920 E. Madison St., Suite 120, Phoenix, AZ  85034, here in referred to as cloudIT and designated client of cloudIT, herein referred to as Client as defined further in the document entitled SOW. The SOW is a separate signed document that shall become a part of and subject to this MSA when signed by both cloudIT, LLC and Client collectively referred to as (Parties) and upon execution is deemed incorporated and is in whole part of this MSA.

These terms (Terms) applies to Client’s purchases from cloudIT, of services (Services), as well as licenses for software, hardware, support, and maintenance services, and/or subscription services collectively, (Products). Client hereby engage and retain cloudIT to render Services or provide Product, as more particularly set forth in the SOW or subsequent SOW’s or any work order as agreed among the Parties (each a Work Order) under such SOW. Except as otherwise stated therein, subsequent SOW’s or Work Orders shall be made a part of and subject to the terms contained herein. No Product or Services will be provided under these Terms alone, but will require the execution of a written or electronic SOW, or other mutually acceptable Work Order documentation, each of which must be executed by both Parties and, upon such execution, is deemed incorporated in these Terms for all purposes. In the event of any conflict between the Statement of Work and these Terms, the terms of the Statement of Work will prevail over these Terms and all non-conflicting terms and conditions of this MSA shall remain fully in force.

Upon termination of the SOW, all non-client owned hardware and software installed by cloudIT to provide Services are the property of cloudIT and will be surrendered and returned to cloudIT at the end of the SOW.

This MSA is effective upon signed execution by the parties as declared effective in the independently signed SOW and associated documents (if any). This MSA remain in effect for the duration stated in the SOW and will continue in effect for as long as cloudIT provides services to Client based on terms stated in SOW and can only be terminated as described in the fully executed SOW.

2. GENERAL REQUIREMENTS & CONDITIONS.

2.1.1. System.

For the purposes of these Terms, System means, collectively, any system, product, equipment, service, software, computer network, computer system, any other service listed in the SOW, peripheral or device installed, maintained, monitored, or operated by cloudIT pursuant to an SOW. To avoid a delay or negative impact on our provision of the Services, during the term of each SOW Client agrees to refrain from modifying or moving the System, or installing software on the System, unless cloudIT expressly authorizes such activity. Any additional critical devices added to the System(s) without the consent or acknowledgement of cloudIT will not be honored or supported by cloudIT under this MSA or SOW.

2.1.2. Maintenance; Updates.

If patches and other software-related maintenance updates (Updates) are provided under a SOW, cloudIT will install the Updates only if cloudIT has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. cloudIT will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.

2.1.3. Third-Party Service Providers.

Third-Party Service Providers means services provided by other than the cloudIT in fulfillment of the SOW requirements whose terms and conditions cloudIT and Client may be legally bound.cloudIT does not own certain Third-Party Products and the use thereof is subject to certain rights and limitations of which we need to inform Client. Client’s right to use the Third-Party Products is subject to Client’s Agreement with us, and to Client’s understanding of compliance with and consent to these Terms and conditions of the Third-Party agreements, which cloudIT does not have authority to vary, alter or amend. Therefore, cloudIT may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with these Terms. cloudIT will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Service Provider to the Client, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products or Services, and cloudIT will not be held liable as an insurer or guarantor of the performance, downtime of usefulness of any Third-Party Provider. The Third-Party Provider may require the cloudIT to sign a contract with the Third-Party Provider for its services (Third-Party Contract) and the terms of the Third-Party Contract may require certain conditions and requirements upon the Client. The terms and conditions of any such Third-Party Contract(s) will be provided to Client or attached to the SOW which identifies the Third-Party Service Provider and the associated terms and conditions. Client hereby agrees to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which Client has consented cloudIT to contract upon its behalf. Third-Party Provider terms and conditions link of PDF can be found at our website and/or SOW as applicable.

2.1.4. Third-Party Product Vendors.

Third-Party Product Vendors means machinery and equipment inclusive of component parts purchased from vendors in fulfillment of the SOW requirements.

2.1.5. Third-Party Support.

If, in cloudIT’s discretion, a hardware or software issue requires vendor or Original Equipment Manufacturer (OEM) support, we may contact the vendor or OEM (as applicable) on your behalf and pass through to Client, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $100, cloudIT will obtain your permission before incurring such expenses on Client’s behalf unless exigent circumstances require otherwise.

2.1.6. Subcontractors.

Subcontractors means third-party to whom cloudIT contracts to provide specified services to complete the services indicated in the applicable SOW.

2.1.7. Conditions of Service.

Client’s System is eligible for participation in cloudIT’s IT Services Program as outlined in these Terms provided it is in good condition and cloudIT’s serviceability requirements and site environmental conditions are met:

 2.1.7.1.1. If on site work is included in the SOW, you shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and unrestricted telephone access for use by cloudIT’s representatives.

 2.1.7.1.2. Client assumes full responsibility for the overall effectiveness and efficiency of the Systems operating environment in which the System is to function,

 2.1.7.1.3. cloudIT’s representatives shall have and Client shall provide full access to the Network and Systems in order to affect the necessary monitoring and/or supplemental services.

 2.1.7.1.4. cloudIT reserves the right to suspend or terminate these Terms or any SOW if, in its sole discretion, conditions at the service site pose a health or safety threat to any of cloudIT’s representatives.

 2.1.7.1.5. All equipment, software, and licensing to be supported by cloudIT pursuant to these Terms, must be supportable by cloudIT and subject to patching, security updates, and manufacturer provided support.

It is the responsibility of the Client to promptly notify cloudIT of any events/incidents that could impact the services defined within these Terms and/or any supplemental service needs.

cloudIT shall provide services as defined in these Terms during business hours, unless otherwise specified in any subsequent SOW and in accordance with cloudIT’s Service policies then in effect.

Client agrees that you will inform cloudIT of any modification, installation, or service performed on the Network and/or Systems by individuals not employed by cloudIT in order to assist cloudIT in providing an efficient and effective Network support response.

Only representatives authorized by cloudIT will be eligible to access and service Client’s network and systems. Any unauthorized access or service conducted on the network and/or systems without the explicit consent of cloudIT which results in negative network performance will not be covered by the monthly plan fee as documented in the SOW and will be billed according to cloudIT’s labor rates as outlined in the SOW.

cloudIT shall be obligated to provide service only at the Service Site(s) as outlined in the SOW. If Client desires to relocate, add, or remove locations, Client shall give appropriate notice to cloudIT of your intention to relocate sixty (60) days in advance. cloudIT reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by Client. Such right includes the right to refuse service at the relocation and/or new site.

It is mutually agreed that cloudIT will have no responsibility for any deficiencies in the System until the cloudIT has had a reasonable opportunity to conduct a review the current System and to provide Client with cloudIT’s recommendations.

2.1.8. Service Limitations.

Except as otherwise stated in the SOW, in addition to other limitations and conditions set forth in these Terms, the following service and support limitations are expressed:

2.1.8.1.1. Cost of consumables, replacement parts, hardware, software, network, systems upgrades, and associated services are outside the scope of this Agreement. cloudIT will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.

2.1.8.1.2. Any unauthorized changes made to the network without cloudIT’s written consent which causes issues or failures to the network, are beyond the responsibility of cloudIT and Client will be billed the full cost to restore the network and system to its original state.

2.1.8.1.3. Except as otherwise stated in any SOW, all System, Server, Network Device and Software upgrades are outside the scope of this Agreement.

2.1.8.1.4. Manufacturer warranted parts and labor/services are outside the scope of these Terms.

2.1.8.1.5. Unless specifically agreed to and stated in any subsequent SOW, all equipment that is not currently covered by its manufacturer’s warranty or support agreement is outside the scope of these Terms.

2.1.8.1.6. Periodic reboots for such network and systems devices such as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes. cloudIT’s support services within these Terms are predicated upon Client support and commitment to providing time/scheduling for system and network device reboots with its staff and/or user’s support

2.1.8.1.7. Application software support is limited to the manufacturer’s products listed in the SOW and any and all third-party user agreements.

2.1.8.1.8. Printer maintenance support (if any) is limited to non-warranty servicing of printer products listed in the SOW.

2.1.8.1.9. Virus mitigation within the scope of these Terms and/or the SOW is predicated on Client satisfying recommended backup schemes and having appropriate Anti-Virus Software with current updates. cloudIT will provide appropriate Anti-Virus software and current updates as part of these Terms. Virus removal and disinfection services are outlined in full detail in the SOW.

2.1.8.1.10. Restoration of lost data caused by systems/hardware failure is outside the scope of these Terms, unless otherwise stated in the SOW.

These Terms and support services herein are contingent on Client’s permission of cloudIT having secure remote access into your Network and Systems, (e.g. VPN, Citrix/AccessIT, Telnet, SSH, RAS or other solutions expressly approved by cloudIT). Depending on the remote access solution used, additional charges may apply to the contract.

Additional out of scope services, not specified in these terms or the current SOW will be provided at cloudIT’s current labor rate.

3. RESPONSE; REPORTING.

3.1.1. Response.

cloudIT warrants and represents that we will provide the Services, and respond to any notification received by US of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s) designated in the applicable SOW (Response Time), except for periods of delay caused by Client’s Downtime (defined below), Vendor-Side Downtime (defined below) or periods in which cloudIT is required to suspend the Services to protect the security or integrity of your System or our equipment or network, or delays caused by a force majeure event.

3.1.2. Scheduled Downtime.

For the purposes of this Agreement, Scheduled Downtime will mean those hours, as defined in the current SOW or determined by cloudIT but which will not occur between the hours of 9:00 AM and 5:00 PM Arizona time,, Monday through Friday without Client’s authorization or unless exigent circumstances exist, during which time cloudIT will perform scheduled maintenance or adjustments to Client’s network. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.

3.1.3. Client’s Downtime.

cloudIT will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Client’s actions or omissions (Client’s Downtime).

3.1.4. Vendor-Side Downtime.

cloudIT will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services or Systems to the extent that such delays or deficiencies are caused by third-party service providers, third-party licensors, or upstream service or product vendors.

cloudIT expressly agrees that this paragraph is intended to be as broad as permitted by the laws of the State of Arizona and that this paragraph shall be governed by and interpreted in accordance with the laws of the State of Arizona.

4. CONFIDENTIALITY AND NON-DISCLOSURE.

4.1.1. Definition of Confidential Information.

As used herein, Confidential Information means all confidential information disclosed by a Party (Disclosing Party) to the other Party (Receiving Party), in any format whether oral, written, electronic, or other, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information shall include any personally identifiable information or protected health information of Client’s employees, Client’s customers, and Client’s Data. Client acknowledges and agrees that these Terms do not constitute a Business Associates Agreement (BAA) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 and as amended), and that the requirement for any such agreement in addition to these Terms may be necessary to provide the Services hereunder. Client shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to these Terms. Furthermore, Client hereby agrees to defend, indemnify and hold harmless cloudIT and any affiliated company, and our respective present and former shareholders, officers, directors and employees and our attorneys and agents, and our predecessors, successors, insurers, assigns, heirs, executors and administrators (collectively referred to as the Indemnitee), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs and expenses, including attorneys’ fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way relate to the failure of Client to comply with these Terms in proper handling of protected health information not caused by cloudIT’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify cloudIT of the necessity of same. Confidential Information of cloudIT shall include the System(s), Product(s) or Service(s), the terms and conditions of these Terms and the SOW, and documentation related to the Systems, Products and/or Services.

4.1.2. Confidential Information of each Party shall include the terms and conditions of these Terms and all SOW’s, as well as business and marketing plans, technology and technical information, product plans and designs, trade secrets, and business processes disclosed by such Party.

4.1.3. Confidential Information (other than Client Data) shall not include any information that: is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, is received from a third-party without breach of any obligation owed to the Disclosing Party, or was independently developed by the Receiving Party.

4.1.4. Protection of Confidential Information.

The Receiving Party shall: protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement or otherwise in any manner to the Disclosing Party’s detriment, and except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement.

4.1.5. Non-disclosure.

Neither Party shall disclose these Terms or any SOW to any third-party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.

4.1.6. Compelled Disclosure.

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

4.1.7. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

4.1.8. Return or Destruction of Confidential Information.

Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy (such as archived computer records). In the event that such return or destruction of Confidential Information is unduly burdensome, or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.

4.1.9. Confidential Information Terms shall survive termination of this MSA and SOW.

 

5. PROVISION OF MATERIALS AND SERVICES TO CLOUDIT.

Client agrees to timely furnish, at Client’s own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe workspaces for purposes of cloudIT or its contracted subcontractors, performing the Services. Client will also provide cloudIT or its contracted subcontractors, with access to all information, passwords and facilities requested by cloudIT that is necessary for cloudIT or its contracted subcontractors, to perform the Services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that cloudIT or its contracted subcontractors, may be unable to perform their duties adequately.

6. RESPONSIBILITY FOR EQUIPMENT.

Client acknowledges that from time to time (a) cloudIT may identify additional items that need to be purchased by Client, and (b) changes in Client’s system may be required in order for cloudIT to meet your requirements. In connection therewith, Client agrees to work in good faith with cloudIT to effectuate such purchases or changes, and such changes shall be set forth in a Change Order under the then current SOW. In the event that cloudIT is required to purchase any assets, including computer hardware and/or software, in connection with cloudIT providing the services, all such assets will remain the sole property of cloudIT, except that assets sold by cloudIT to Client or procured by cloudIT on Client’s behalf shall be the sole property of Client. Client will take such reasonable precautions to ensure the quality, completeness and workmanship of any item or service furnished by it, and for ensuring that the materials provided to cloudIT or its contracted subcontractors, do not infringe or violate the rights of any third-party. Client will maintain adequate backup for all data and other items furnished to cloudIT.

7. CLIENT DATA OWNERSHIP AND RESPONSIBILITY.

Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by Client to cloudIT.

8. INTELLECTUAL PROPERTY.

cloudIT retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this MSA and SOW, as well as any software, materials, or methods created prior to or after conclusion of any work Intellectual Property. Client acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.

8.1. Client may only use and disclose Intellectual Property in accordance with the terms of this Agreement and applicable SOW. cloudIT reserves all rights in and to the Intellectual Property not expressly granted in this Agreement. Client may not disassemble or reverse engineer any Intellectual Property or decompile or otherwise attempt to derive any software source code within the Intellectual Property from executable code, except to the extent expressly permitted by applicable law despite this limitation or provide a third-party with the results of any functional evaluation, or benchmarking or performance tests on the Intellectual Property, without cloudIT’s prior written approval.

8.2. Except as expressly authorized in these Terms or an SOW, Client may not: (a) distribute the Intellectual Property to any third-party (whether by rental, lease, sublicense, or other transfer), or (b) operate the Intellectual Property in an outsourcing or cloudIT business to process the data of third parties.

Additional usage restrictions may apply to certain third-party files or programs embedded in the Intellectual Property – applicable installation instructions or release notes will contain the relevant details.

9. LICENSE AGREEMENTS.

9.1. License.

Subject to these Terms, cloudIT grants Client a perpetual, non-exclusive, non-transferable license to use all programming, documentation, reports, and any other product provided as part of the Services solely for Client’s own internal use. At all times, all software on the System must be genuine and licensed, and Client agrees to provide us with proof of such licensing upon our request. If cloudIT requires Client to implement certain minimum hardware or software requirements (Minimum Requirements), Client agrees to do so as an ongoing requirement of cloudIT providing our Services to Client.

9.2. Software Installation or Replication.

If cloudIT is required to install or replicate Client’s software as part of the Services, Client will independently verify that all such software is properly licensed. Client’s act of providing any software to cloudIT will be deemed your affirmative acknowledgement to cloudIT that Client has a valid license that permits cloudIT to perform the Services related thereto. In addition, Client will retain the duty and obligation to monitor Client’s equipment for the installation of unlicensed software unless cloudIT in a written SOW expressly agrees to conduct such monitoring.

9.3. Software Updates.

Sometimes Client’s will need software updates to keep using the Services. cloudIT may automatically check Client’s version of the software and download software updates or configuration changes. Client may also be required to update the software to continue using the Services. Such updates are subject to these Terms unless other terms accompany the updates as stated in the SOW, in which case, those other terms apply.

9.4. Pre-Existing License Agreements.

Any software product provided to Client by cloudIT as a reseller for a third-party, which is licensed to Client under a separate software license agreement with such third-party, will continue to be governed by the third-party license agreement.

9.5. End User License Agreements – (EULA).

Portions of the Services may require Clients to accept the terms of one or more third-party end user license agreements (EULAs). If the acceptance of a EULA is required in order to provide the Services to you, then the Client hereby grants cloudIT permission to accept the EULA on Client’s behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. Client agrees to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, cloudIT is required to comply with a third-party EULA and the third-party EULA is modified or amended, cloudIT reserves the right to modify or amend any applicable SOW with Client to ensure our continued compliance with the terms of the third-party EULA. Client agrees to hold harmless and indemnify cloudIT against Client’s violation of any of the terms and conditions included in the subject EULA.

9.6. Third-Party Products.

Unless otherwise stated in a SOW, all hardware, software, peripherals, or accessories purchased through cloudIT (Third-Party Products) are nonrefundable once the applicable SOW is placed in our queue for delivery. cloudIT will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products to Client, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and cloudIT will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third-Party Products. Unless otherwise expressly stated in a SOW, all Third-Party Products are provided as is and without any warranty whatsoever as between cloudIT and Client (including but not limited to implied warranties).

10. WORKING ENVIRONMENT.

Client shall provide a suitable working environment for any System, Product or Equipment located at Client’s facility. Such environment includes, but is not limited to, the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. Client shall bear the risk of loss of any Equipment located at Client’s facility.

11. CLOUDIT’S EMPLOYEE’S, AGENTS OR SUBCONTRACTORS.

Client acknowledges that cloudIT has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors, and independent contractors. From the Effective Date of the last SOW and up to one (1) calendar year after the date of termination of any SOW, Client will not hire or contract directly or indirectly with any of the cloudIT’s employees, agents or sub-contractors who have communicated with and/or worked on any Service for Client. Client and cloudIT mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the amount of monetary damages that would be caused by a breach by Client of this provision. Therefore, Client and cloudIT mutually agree that in the event of a breach by Client in any way of this provision, Client shall pay to cloudIT as liquidated damages, an amount equal to One Hundred Fifty Thousand Dollars ($150,000.00). this amount is an effort by both parties to properly and reasonably assess the damages that cloudIT would suffer as a direct result of a breach by Client, taking into account the following facts and circumstances: (a) an average employee working for cloudIT will generate significant net revenue for cloudIT and remain employed by cloudIT for an extended period of time; (b) cloudIT will lose significant revenue and incur significant costs in connection with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced; and (d) accurately assessing the value of such employee to cloudIT upon such breach is virtually impossible. In light of these circumstances, Client and cloudIT mutually agree that this is liquidated damages provision represents reasonable compensation to cloudIT for the losses that it would incur due to any such breach. Client and cloudIT further acknowledge and agree that nothing in this paragraph shall limit cloudIT’s rights to obtain injunctive relief or any other damages including, but not limited to punitive, consequential, special, or any other damages, as may be appropriate in connection with Client’s breach of this section.

12. WARRANTY.

cloudIT warrants that it or its contracted subcontractors, will perform the services substantially in accordance with the specifications set forth whether under these Terms, SOW, other work order or otherwise in connection with any of them. For any breach of the foregoing warranty, cloudIT or its contracted subcontractors, will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Client’s written notice to cloudIT specifying in reasonable detail such non-conformance. If cloudIT concludes that conformance is impracticable, then cloudIT will refund all fees paid by Client to cloudIT hereunder, if any, allocable to such nonconforming Services.

Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by cloudIT product shall be deemed null and void if the applicable product is (a) altered, modified or repaired by persons other than cloudIT, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by cloudIT (b) misused, abused, or not operated in accordance with the specifications of cloudIT or the applicable manufacturer or creator of the hardware or product, or, (c) subjected to improper site preparation or maintenance by persons other than cloudIT or persons approved or designated by cloudIT.

Notwithstanding the above, cloudIT does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. cloudIT does not guarantee or promise any cost savings, profits, or returns on investment.

13. SOFTWARE HARDWARE & SECURITY.

Client understands and agree that data loss or network failures may occur, whether or not foreseeable. In order to reduce the likelihood of a network failure Client must maintain proper security for your computer and information system including software and hardware updates. Client will adhere to software and hardware updates and maintain specific security standards, policies, procedures set forth and recommended by cloudIT.

14. CLIENT CYBER SECURITY.

It is understood that the Services provided to Client, unless otherwise specified in the SOW, does not include any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for Client. As cyber threats are always evolving and increasing in threat level, it is strongly recommended that Client engage the services of cloudIT for cyber protection to proactively monitor the cyber controls and cyber activities in Client’s System. cloudIT can assist in evaluating Client’s specific needs and provide a Cyber Security Assessment for cloudSecure Cyber Security protection.

15. TELEMARKETING & UNSOLICITED EMAILS.

In no event, including the negligent act or omission on its part, shall cloudIT or its contracted subcontractors, whether under these Terms, a SOW, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if Client’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic spiders, spybots, spyware, wiretapping, bugging, video cameras or identification tags.

16. TERRORISM.

In no event, including the negligent act or omission on its part, shall cloudIT, whether under these Terms, a SOW, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.

17. EXTRAORDINARY EVENTS.

In no event, including the negligent act or omission on its part, shall cloudIT or its contracted subcontractors, whether under these Terms, an SOW, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic or other physical event.

18. RELEASE WITH LIMITATION OF LIABILITY.

THIS PARAGRAPH LIMITS THE LIABILITIES ARISING UNDER THESE TERMS OR ANY SOW AND IS A BARGAINED-FOR AND MATERIAL PART OF THESE TERMS. CLIENTACKNOWLEDGES AND AGREES THAT CLOUDIT WOULD NOT ENTER INTO THESE TERMS UNLESS IT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH. CLIENT AND ANY OF CLIENT’S AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE RELEASOR PARTIES) AGREES TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE NOTED IN THESE TERMS, AGREES TO RELEASE CLOUDIT AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE RELEASED PARTIES) FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES. UNDER NO CIRCUMSTANCES SHALL CLOUDIT’S AGGREGATE LIABILITY ARISING FROM OR OUT OF OR RELATING TO THESE TERMS EXCEED THE FEES PAID UNDER THESE TERMS FOR THE PREVIOUS TWELVE (12) MONTHS. CLOUDIT SHALL NOT BE LIABLE TO CLIENT FOR ANY DELAY IN DELIVERY OR PERFORMANCE, OR FAILURE TO DELIVER OR PERFORM AT OR WITHIN THE DEADLINES SET FORTH IN THESE TERMS.

19. MUTUAL INDEMNIFICATION AND HOLD HARMLESS.

EACH PARTY AGREES TO THE FULLEST EXTENT PERMITTED BY LAW SHALL AT ALL TIMES DEFEND, INDEMNIFY, PAY, SAVE AND HOLD THE OTHER PARTIES AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE MUTUALLY INDEMNIFIED PARTIES) HARMLESS FROM EACH AND ANY AND ALL LIABILITIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES), COSTS, EXPENSES, SUITS, CIVIL OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING, LOSSES, CLAIMS, ACTIONS, VIOLATIONS, FINES AND PENALTIES (INCLUDING WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEY’S FEES AND ANY OTHER REASONABLE COSTS OF LITIGATION) (HEREINAFTER COLLECTIVELY, THE CLAIMS) THAT ANY OF THE MUTUALLY INDEMNIFIED PARTIES MAY SUFFER, SUSTAIN OR INCUR TO THE EXTENT CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE MUTUALLY INDEMNIFIED PARTIES ARISING OUT OF THESE TERMS.

THE PRECEDING INDEMNIFICATION OBLIGATIONS ARE CONDITIONED ON ANY OF THE INDEMNIFIED PARTIES: (I) NOTIFYING THE INDEMNIFYING PARTY PROMPTLY IN WRITING OF SUCH ACTION; (II) REASONABLY COOPERATING AND ASSISTING IN SUCH DEFENSE; AND (III) GIVING SOLE CONTROL OF THE DEFENSE AND ANY RELATED SETTLEMENT NEGOTIATIONS TO THE INDEMNIFYING PARTY WITH THE UNDERSTANDING THAT THE INDEMNIFYING PARTY MAY NOT SETTLE ANY CLAIM IN A MANNER THAT ADMITS GUILT OR OTHERWISE PREJUDICES THE INDEMNIFIED PARTY, WITHOUT CONSENT.

20. CLOUDIT INSURANCE.

cloudIT agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law.  Without limiting the foregoing, to the extend this Agreement creates exposure generally covered by the following insurance policies, cloudIT will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement:

Commercial General Liability including (a) bodily injury (b) property damage (c) contractual liability coverage (d) personal injury, in an amount not less than Two Million Dollars ($2,000,000) per occurrence (e) Business Automobile Liability for hired and non-owned vehicles in an amount of not less than One Million dollars ($1,000,000) for each accident (f) Workers Compensation at statutory limits (h) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services

Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000). cloudIT shall have Client included in the Professional Liability policy as an additional insured. Such status will provide protection, subject to the policy terms and conditions, where liability is imposed on Client as a result of the wrongful act of cloudIT.

21. CLIENT’S INSURANCE.

21.1.1. Commercial Property Insurance. Client shall secure at Client’s own cost and expense Property Insurance for the equipment that is part of the provisions of the service agreement. The policy shall include the following coverages:

21.1.1. Replacement cost valuation on cloudIT’s equipment.

21.1.2. Waiver of coinsurance for the insured property

21.1.3. Insured for All Risk/Special Perils with an extension of coverage for Flood and Earthquake.

22. CYBER INSURANCE.

Client shall secure and maintain for the duration of the contract Cyber Liability Insurance to insure Client’s cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Client’s specific coverage and policy limit requirements.

23. MUTUAL WAIVER OF SUBROGATION.

TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS PROFESSIONAL LIABILITY GENERAL LIABILITY. PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD CLOUDIT ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT CLIENT’S INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE MASTER SERVICE AGREEMENT.

24. DISCLAIMERS.

The express remedies set forth in these Terms will constitute Client’s exclusive remedies, and cloudIT’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.

EXCEPT FOR THE WARRANTIES MADE BY CLOUDIT IN SECTION 12, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY AS-IS. CLOUDIT DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.

CLOUDIT DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY OF CLIENT’S REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., ALPHA OR BETA) RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT, SUCH COPIES ARE PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND.

No statement by any cloudIT employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify these Terms in any way whatsoever.

25. SEVERABILITY.

If any provision of these Terms is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of these Terms shall not render invalid the remainder of the Terms.

26. AMENDMENT.

These Terms may not be amended except by a writing executed by an authorized individual of the cloudIT.

27. RELATIONSHIP.

The Parties are independent parties; and these Terms do not make the Parties principal and agent, partners, employer, and employee; nor does it create a joint venture. It is further understood that there is no relationship, including but not limited to a partnership, joint venture, sub-contractor, or other commission-based relationship, between any party that referred cloudIT or Client to the other party to these Terms.

28. LAW.

These Terms shall be governed by and construed in accordance with the laws of the State of Arizona without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Arizona.

29. WAIVER.

Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.

30. FORCE MAJEURE.

Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.

31. DATA ACCESS/STORAGE.

Depending on the Service provided, a portion of Client’s data may occasionally be accessed or stored on secure servers located outside of the United States. Client agrees to notify cloudIT if Client’s company requires cloudIT to modify our standard access or storage procedures.

32. ASSIGNMENT.

Client may not assign Client’s rights or obligations under these Terms without cloudIT’s prior written consent which shall not be unreasonably withheld.

33. COUNTERPART AND ELECTRONIC SIGNATURES.

These Terms must be executed as part of Client’s SOW and by agreeing to the SOW and initializing the SOW that Client has read and understood these Terms, these Terms are now part of, and integrated into, the SOW, and each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Client’s electronic signature on the SOW shall have the same validity and effect as a signature affixed by Client’s hand.

34. NO GUARANTEE OF FUTURE SERVICE.

These Terms do not provide any guarantee or promise of continued service by cloudIT. cloudIT retains the right to terminate its relationship with any Client at any time, with or without cause, for any reason or no reason.

35. HEADINGS.

The headings of sections in this MSA are included solely for convenience and shall not affect the meaning of any of the Terms within.

36. ENTIRE AGREEMENT.

These Terms, the SOW, and any subsequent SOW’s constitute the entire agreement by and between the Parties regarding the subject matter contained therein and supersedes all prior and contemporaneous undertakings and agreements of the Parties, whether written or oral, with respect to such subject matter. Any and all other agreements between the Parties is subject to paragraph 1 above.