Managed Services Subscription Agreement

US Cloud Managed Services Subscription Agreement

(Premier Support Performance)

THIS MANAGED SERVICES SUBSCRIPTION AGREEMENT (this "Agreement") is made, effective as of the later of the dates appearing below the signatures of the parties on the signature page hereof (the "Effective Date"), by and between US Cloud LC (“US Cloud”), and (Customer).

Customer desires to engage US Cloud to provide certain managed services, and US Cloud desires to be so engaged, on and subject to the terms and conditions set forth in this Agreement. Therefore, the parties hereto agree as follows:

  1. Services

    Customer hereby engages US Cloud to provide the Managed Services described in Schedule 1 and as further specified herein (the “Services”), and US Cloud agrees to provide such services during the term of this Agreement. Subject to the terms of this Agreement, US Cloud shall procure all hardware, software, and materials necessary for the performance of its obligations under this Agreement. US Cloud may not subcontract with third parties for implementation and performance of the Managed Services without the prior written consent of Customer, such consent not to be unreasonably withheld.

    In addition to its other obligations assumed herein, Customer agrees to provide appropriate billing and technical contacts to US Cloud, to permit US Cloud access to systems to which Customer has approved access in order that the Services may be performed, to request services via US Cloud’s web portal or by phone in order that support tickets may be opened, and to cooperate with US Cloud in solving issues.

    In addition to its other obligations assumed herein, US Cloud agrees to respond to Customer’s service requests in a timely and business-like fashion and to render the Services consistent with reasonably applicable industry standards.

  2. Fees, Taxes, Payment, Term and Termination
    1. Fees and Taxes. In consideration of US Cloud's performance of the Managed Services, Customer shall pay to US Cloud the service fees set forth on Schedule 2 attached hereto (the "Service Fees"). Payment terms are also set forth on Schedule 2. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Managed Services. All such taxes (other than taxes relating to US Cloud’s income) will be added to US Cloud’s invoices for the Service Fees as separate charges to be paid by Customer.

    2. Payment. All of US Cloud’s invoices for the Service Fees and related charges shall be due and payable in advance of US Cloud rendering service hereunder. Any payments received from Customer will be applied by US Cloud first to any Installation Charges and second to any balances on any current invoice.

    3. Terms and Termination by Customer. This Agreement shall be for the term identified in Schedule 2. This Agreement may be terminated without cause by Customer as described in Schedule 2. This Agreement may be terminated with cause by Customer if US Cloud is unable to remedy an issue within sixty (60) days of notification by Customer to US Cloud of such issue (Tickets escalated to Microsoft excluded). In such event, Customer must notify US Cloud of Customer’s intent to terminate this Agreement within ten (10) days of the end of said sixty (60) day period. In such case Customer shall be responsible for payment of Service Fees, pro-rated as necessary, up through the date of termination, and US Cloud shall refund to Customer the portion of the prepaid Service Fees applicable to the period following such date. In all other cases, Customer may terminate this Agreement with cause due to a material breach of this Agreement by US Cloud upon thirty (30) days’ notice to Fwpeb.net. If Fwpeb.net does not cure such breach within the 30-day time period, this Agreement shall be deemed terminated.In such cases Customer shall be responsible for payment of Service Fees, pro-rated as necessary, up through the date of termination (provided that US Cloud has used commercially reasonable efforts to cure such breach), and US Cloud shall refund to Customer the portion of the prepaid Service Fees applicable to the period following such date.

    4. Termination by US Cloud. US Cloud may terminate the agreement for cause due to non-payment of Service Fees upon notice to Customer. In all other cases, US Cloud may terminate this Agreement with cause due to a material breach of this Agreement by Customer upon thirty (30) days’ notice to Customer. If Customer does not cure such breach within the 30-day time period, this Agreement shall be deemed terminated. In such cases Customer shall be responsible for payment of Service Fees, pro-rated as necessary, up through the date of termination.

  3. US Cloud Intellectual Property
    1. US Cloud’s trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of US Cloud. Customer is not authorized to and shall not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of US Cloud.

    2. Both US Cloud and Customer will be free to use any ideas, concepts, know-how or techniques developed in connection with the Services for any purpose whatsoever, including, without limitation, developing, providing and marketing products and services. The Services shall not be considered work for hire.

  4. Limitation of Warranty
    1. US Cloud represents to Customer that the Managed Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof, and (ii) in compliance in all material respects with any specifications and requirements set forth on Schedule 2. Customer shall notify US Cloud after performance of any Managed Services promptly after it becomes aware that such Managed Services do not conform to the foregoing representations. Except in the case of US Cloud’s, fraud or willful misconduct, Customer's sole and exclusive remedy, and US Cloud’s sole obligation, for breach of the representations set forth above shall be for US Cloud, at its option, to re-perform the defective Managed Services as promptly as practicable at no cost to Customer or, if it is unable to re-perform, refund to Customer the Services Fees applicable to such defective Managed Services.

    2. The foregoing representations shall not apply to performance issues or defects (i) caused by factors outside of US Cloud’s reasonable control; (ii) that resulted from any actions or inactions of Customer in violation of this Agreement or actions or inactions of any third parties (excluding approved subcontractors of US Cloud) not within the sole control of US Cloud; or (iii) that resulted from Customer's equipment or any third-party equipment or software not within the sole control of US Cloud.

    3. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4, US CLOUD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

  5. Limitation of Liability
    1. IN NO EVENT WILL US CLOUD'S LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES UNDER THIS AGREEMENT PAID TO US CLOUD BY CUSTOMER. CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION, TOGETHER WITH OTHER PROVISIONS RELATED THERETO, IS MATERIAL IN US CLOUD’S DECISION TO ENTER INTO THIS AGREEMENT.

    2. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR MANAGED SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.

    3. The limitations contained in this Section 5 apply to all causes of action in the aggregate, whether based in contract, tort (including negligence) or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct.

    4. Customer acknowledges that US Cloud has set its prices and entered into this Agreement in reliance upon the limitations of liability and damages and the disclaimers of warranties set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that such limitation and disclaimers shall survive and apply even if this Agreement or any provisions hereof are found to have failed of their essential purpose.

  6. Indemnification of US Cloud

    Customer shall defend, indemnify and hold harmless US Cloud, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "US Cloud Indemnities"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the US Cloud Indemnities may suffer, incur or sustain resulting from or arising out of claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of information not provided by US Cloud.

  7. Indemnification of Customer
    1. Subject to Section 5, US Cloud shall, at its own expense, indemnify, defend and hold Customer harmless from any claim or suit alleging that the Managed Services performed herein infringe any United States patent, copyright or trademark, or that US Cloud has knowingly misappropriated any trade secret or other intellectual property right of any other Person, including any losses, damages, penalties, fees, costs or expenses arising from any such claim or suit. Customer agrees to cooperate with and assist US Cloud in the defense or settlement of any such claim or suit to the extent reasonably requested by US Cloud; provided, that Customer shall be reimbursed for all reasonable out-of-pocket fees, costs and expenses incurred in providing any cooperation or assistance requested by US Cloud, but Customer agrees to give prompt notice to US Cloud of any fees, costs, or expenses incurred that Customer believes are US Cloud’s responsibility herein. Customer shall further, except in an emergency, obtain US Cloud’s permission before incurring such fees, costs or expenses that Customer believes are US Cloud’s responsibility herein.

    2. Promptly, and in any event within 5 business days, after receipt by Customer of a threat of any claim or suit, or a notice of the commencement or filing of any claim or suit, against which Customer may be indemnified hereunder, Customer shall give written notice thereof to US Cloud, provided that failure to give or delay in giving such notice to US Cloud shall not relieve US Cloud of any liability it may have to Customer hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. US Cloud shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit; provided, that US Cloud may not enter into any settlement that requires an admission of liability by Customer or requires a payment by Customer without the prior written consent of Customer, not to be unreasonably withheld or delayed. Subject to US Cloud providing the indemnification, defense and hold harmless as aforesaid, Customer may not participate in the defense of any such claim or suit unless it reasonably determines that US Cloud and Customer have a conflict of interest.

    3. If an injunction, decree or judgment is, or US Cloud believes in its sole discretion is likely to be, entered providing that Customer may not use the Managed Services as contemplated in this Agreement without violating the intellectual property rights of a third party, US Cloud shall, at its sole option and expense, either (i) procure for Customer the right to use the Managed Services or affected part thereof as provided in this Agreement; (ii) replace the Managed Services or affected part thereof with other non-infringing services or modify the Managed Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to Customer. In the event of a termination of this Agreement under subsection (iii), US Cloud shall refund to Customer the portion of the prepaid Service Fees applicable to the remaining term of the Agreement.

    THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF US CLOUD, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.

  8. Confidentiality
    1. Each party agrees that it will not, without the prior written consent of the other party, for any reason or at any time, use or disclose to any person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Managed Services hereunder. Subject to the provisions of Section 8(b), each party agrees that it shall (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its directors, officers, employees, agents, contractors or advisors who need it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other person without the prior written consent of the other party.

    2. Notwithstanding the provisions of Section 8(a), the following shall not be considered Proprietary Information for purposes of this Agreement: (i) any information that the receiving party can demonstrate was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information which was publicly available prior to disclosure by the disclosing party as evidenced by documents which were generally published (including information discoverable on the internet) prior to such disclosure; (iii) any information which, after disclosure by the disclosing party, becomes publicly available other than as a result of a breach of the confidentiality provisions of this Agreement, (iv) any information which is disclosed to the receiving party without restriction by a third party who is not known by the receiving party to be subject to a confidentiality agreement with the disclosing party; or (v) any information which, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.

    3. The receiving party may disclose the disclosing party’s Proprietary Information to the extent that such disclosure is requested or required by any law, rule, regulation or the rules of any listing authority or stock exchange to which the receiving party is subject to or pursuant to a request or requirement of any judicial, administrative, legislative, regulatory or self-regulatory body (“Law”); provided, however, that the receiving party shall, to the extent legally permissible and practicable, and except in the case of routine regulatory review or examination, (i) notify the disclosing party in writing of such requirement prior to disclosing and provide the disclosing party a reasonable opportunity to: (A) review the disclosure and to interpose its own objection to the disclosure or (B) seek (at the disclosing party’s sole expense) a protective order or other appropriate relief, and (ii) disclose only such information as is requested or required by Law.

    4. Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to seek injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, following the written request of the other party, each party shall, at its election, either promptly return to the other party, or destroy, all Proprietary Information of the other party (including all copies thereof) in its possession or control. Notwithstanding the foregoing, the receiving party may retain (i) copies of the Proprietary Information in accordance with policies and procedures implemented by such persons in order to comply with applicable law, regulation, professional standards or reasonable business practice, (ii) any documents constituting Proprietary Information that have been prepared for the purpose of management decision making or in connection with legal, accounting or financial advice and (iii) electronic copies of the Proprietary Information that are automatically created pursuant to electronic backup and archival procedures.

    5. e. To the extent that US Cloud receives personally identifiable information about an individual (hereinafter referred to as “PII”) in the course of providing the Managed Services under this Agreement, US Cloud shall treat such PII as Proprietary Information and disclose it to recipients permitted under subparagraph (a) above only on a need to know basis. You shall report to Customer immediately upon discovery of a real or suspected loss of PII. PII includes, but is not limited to, an individual’s first name or first initial and last name in combination with any one or more of the following data elements including, but not limited to, social security number or other state identification number (such as a driver’s license number), passport number, credit card numbers, clearances, bank numbers, biometrics, date and place of birth, mother’s maiden name, criminal, medical and financial records, educational transcripts. US Cloud shall encrypt all electronic copies of PII while in transit.

  9. Miscellaneous
    1. Independent Contractor.The parties acknowledge that the relationship of each party to the other under this Agreement is that of an independent contractor, and that nothing contained in this Agreement shall be construed to place US Cloud and Customer in the relationship of employer and employee, principal and agent, master and servant, partners or joint ventures. Neither party shall have, expressly or by implication, or represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

    2. Governing Law; JurisdictionThe validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Missouri, without regard to its conflicts of laws principles. The parties expressly disclaim application of the United Nations Convention on the International Sale of Goods. Any suit, action or proceeding concerning this Agreement must be brought in a Missouri state or federal court in or for St. Louis County, Missouri, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.

    3. Headings. The headings as to contents of particular sections and paragraphs are inserted only for convenience and are in no way to be construed as part of this Agreement.

    4. Entire Agreement; Amendments. This Agreement, including all Schedules attached hereto, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. For greater certainty, this Agreement supersedes that certain US Cloud Mutual Confidentiality and Non-Disclosure Agreement between the parties entered into as of April 12, 2018, which agreement is terminated effective as of the Effective Date. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or US Cloud, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and US Cloud. This Agreement shall not be modified or amended except by another agreement in writing executed by the parties hereto.

    5. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

    6. Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Except where specifically provided otherwise in this agreement, email is not an acceptable method of giving notice hereunder. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein.

    7. Waiver. No failure or delay on the part of any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.

    8. Assignment; Successors. Neither party may assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other party, such consent not to be unreasonably withheld. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. For purposes of this paragraph, the term "assignment" also shall include any of the following transactions: (i) a merger involving a party in which such party is not the surviving entity; (ii) a merger involving a party in which such party is the surviving entity but in which securities or other ownership interests possessing more than fifty percent (50%) of the total combined voting power of such party’s outstanding securities or other ownership interests are transferred to other Persons; or (iii) a sale, assignment or other transfer of a party’s securities or other ownership interests possessing more than fifty percent (50%) of the total combined voting power of the party's outstanding securities or other ownership interests at the time of such transfer. Notwithstanding anything contained in the foregoing, any underwritten registered public offering of a party's securities or other ownership interests (as a result of which such party's securities or other ownership interests will be listed on a national securities exchange or quoted by a national securities association) shall not constitute an assignment, and shall not otherwise be subject to this paragraph. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

    9. Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.

    10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

    11. Interpreation. The parties are equally responsible for the preparation of this Agreement, and the terms hereof shall not be more strictly construed against one party than the other.

    12. No Third party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed, to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.

  10. Definitions

    For purposes of this Agreement, the following terms have the meanings specified below:

    1. "Proprietary Information" means all technical, business and other information of a party which derives value, economic or otherwise, from not being generally known or available to the public or to other Persons who can obtain value from its disclosure or use, including, without limitation, technical information, data, designs, specifications and know-how; names, addresses, telephone numbers, contact persons and other identifying information relating to such party's customers, employees, investors or prospects; price and cost information with respect to goods or services; financial information with respect to such party's business; sales data; and personnel data relating to such party's employees and independent contractors. Such Proprietary Information shall be contractually subject to protection pursuant to the provisions of this Agreement without regard to whether such Proprietary Information would otherwise be regarded or legally considered "confidential" and without regard to whether such Proprietary Information constitutes a trade secret and is also protectable at law or in equity as a trade secret.

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