Cloud Capital Terms of Service

This Terms of Service (this “Agreement”), effective as of the date Customer (defined below) accepts this Agreement (the “Effective Date”), is a legally binding contract between you and either Cloud Capital Technologies, Ltd., a company incorporated under the laws of the United Kingdom, if you are based in the United Kingdom, or Cloud Capital Technologies, Inc., a corporation organized under the laws of the United States, if you are based in the United States or anywhere else (each, as applicable, “Cloud Capital” “us,” “we,” or “our”) regarding your use of the Service (as defined herein). References to “Customer”, “you”, and “your” refer to the individual, company, or other entity that accepts the Agreement, by executing an ordering document provided to you by us, placing an Order using online functionality Cloud Capital makes available like clicking a box, creating an Account (as defined herein), or otherwise affirmatively accepting the Agreement through another means Cloud Capital offers you. If an authorized individual uses the Service on behalf of a company or entity, all references to ‘Customer,’ ‘you,’ or ‘your’ will refer to that entity. The individual represents and warrants they have the authority to bind the entity to this Agreement. If a prior agreement exists regarding the Service use or if an authorized representative has already accepted this Agreement before the acceptance date, this Agreement does not apply. Instead, the pre-existing agreement governs all rights and obligations related to the Service. If you are not eligible, or do not agree to the terms and conditions of the Agreement, then you do not have our permission to use the Service. Your use of and our provision of the Service to you, constitutes an Agreement by Cloud Capital and by you to be bound by this Agreement. Capitalized terms not otherwise defined in the Agreement shall have the meaning set forth in Appendix A.

1. Overview. Cloud Capital’s Services provide a free-to-use, web-based SaaS platform that enables engineering and finance teams to collaboratively build a plan and forecast long-term cloud infrastructure costs and to assess potential cost savings opportunities. The Services may include various features, some of which are currently available and some of which may be added or discontinued.

2. Services.

2.1. Ordering Process. Services are purchased as stated in an Order in the manner established for each of the Services.

2.2. Permitted Use. During a Subscription Term, subject to Customer’s compliance with the terms of this Agreement, Customer may access and use the Services only for its internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in an Order.

2.3. Users. To access the Services, Customer and its Users must register for an account (“Account”), and, in doing so, may be required to provide Cloud Capital with information (such as name, email address, or other contact information). Customer agrees that the information it provides to Cloud Capital is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Only Users, using the mechanisms designated by Cloud Capital (“Log-in Credentials”), may access and use the Services. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Cloud Capital’s breach of this Agreement). Customer will promptly notify Cloud Capital if it becomes aware of any compromise of any Log-in Credentials. Cloud Capital may Process Log-in Credentials in connection with Cloud Capital’s provision of the Services or for Cloud Capital’s internal business purposes.

2.4. Restrictions. Customer will not (and will not permit anyone else to), except as enabled by the functionality of the Service, do any of the following: (a) provide access to, distribute, sell, or sublicense a Service to a third party (other than Users); (b) use a Service on behalf of, or to provide any product or service to, third parties; (c) use a Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code to a Service, except to the extent expressly permitted by Law (and then only with prior notice to Cloud Capital); (e) modify or create derivative works of a Service or copy any element of a Service; (f) remove or obscure any proprietary notices in a Service; (g) publish benchmarks or performance information about a Service; (h) interfere with the operation of a Service, circumvent any access restrictions, or conduct any security or vulnerability test of a Service; (i) transmit any viruses or other harmful materials to a Service; or (j) take any action that risks harm to others or to the security, availability, or integrity of a Service.

3. Support. During a Subscription Term, Cloud Capital will use commercially reasonable efforts to provide commercially reasonable support for the applicable Services.

4. Updates and Upgrades.

4.1. Updates. Unless stated otherwise in an Order, Cloud Capital will make Updates to Services as Cloud Capital makes them available to its customers of the applicable Services generally.

4.2. Upgrades. From time to time, Cloud Capital, in its sole discretion, may make available Upgrades under additional or different terms. Nothing in this Agreement obligates Cloud Capital to make Upgrades available to Customer as part of the Services or otherwise unless specifically included in an Order. Cloud Capital may modify, terminate, suspend, or otherwise disable Upgrades at any time for any or no reason with or without Customer’s notice or consent.

4.3. No Obligation; No Guarantee. Customer's access to the Services is not contingent on the delivery of any future functionality, features, Updates, or Upgrades, nor is it dependent on any oral or written public or private comments made by Cloud Capital regarding future functionality or features of the Services. There is no guarantee of any particular functionality, features, Updates, or Upgrades.

5. Data and Output.

5.1. Use of Customer Data. Customer grants Cloud Capital the non-exclusive, worldwide, transferable, sublicensable right to use, copy, store, disclose, transmit, transfer, modify, and create derivative works from Customer Data only as necessary to: (a) provide any Services and support, including to create Customer’s cloud spend forecast and savings analysis, and assess Customer’s counterparty credit risk; (b) derive or generate Usage Data; (c) create and compile Aggregated Data and Output Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties.

5.2. Security. Cloud Capital will maintain, for as long as it Processes Customer Data, commercially reasonable information security measures.

5.3. Data Processing. To the extent Cloud Capital will Process Customer personal data or information to provide Services to Customer pursuant to this Agreement, each party will comply with any applicable privacy regulations or legislation, including GDPR or CCPA obligations.

5.4. Usage Data; Aggregated Data. Cloud Capital may Process and freely transfer or assign Usage Data and Aggregated Data for internal business purposes, such as to: (a) track use of Services; (b) provide support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) improve Services, its other products and services, and to develop new products and services; (f) train Cloud Capital’s internal artificial intelligence or machine learning algorithms; and (g) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection or processing of Usage Data or Aggregated Data.

5.5. License to Output Data. Cloud Capital hereby grants to Customer a non-exclusive, worldwide, royalty-free, fully paid-up, non-transferable license, without the right to sublicense, to use, reproduce, distribute, and display the Output Data, both during and after the term, solely for its internal business purposes.

6. Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data provided to Cloud Capital. Except for Customer’s use rights in this Agreement, to the maximum extent permitted under applicable law, Cloud Capital and its licensors own and will retain ownership of any and all intellectual property rights and other rights in or to the Services, Output Data and any other deliverables, Documentation, Aggregated Data, Usage Data, and Cloud Capital technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Cloud Capital. If Customer provides Cloud Capital with feedback or suggestions regarding the Services or other Cloud Capital offerings, Cloud Capital may use the feedback or suggestions without restriction or obligation.

7. Customer Obligations. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Cloud Capital to Process Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data. If Customer fails to do any of the following, Cloud Capital’s obligation to provide the Services will be excused until Customer is in compliance: Customer will (1) give Cloud Capital timely access to Customer Data reasonably needed for the Services, (2) provide continued access to Customer Data reasonably needed for the Services, (3) ensure any Customer Data it provides is accurate to their best knowledge, and (4) keep any such Customer Data up-to-date on a monthly basis.

8. Suspension of Service. Cloud Capital may immediately suspend Customer’s access to any or all of the Services if: (1) Customer breaches Section 2.4 (Restrictions) or Section 7 (Customer Obligations); (2) changes to Laws or new Laws require that Cloud Capital suspend a Service or otherwise may impose additional liability on the part of Cloud Capital; or (4) Customer’s actions risk harm to any of Cloud Capital’s other customers or the security, availability, or integrity of a Service. Where practicable, Cloud Capital will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Cloud Capital will restore Customer’s access to the Service(s).

9. Customer Systems. Customer will provide and maintain any Customer Systems. In addition, Customer will give Cloud Capital timely access to Customer Data reasonably needed for the Services, and if Customer fails to do so, Cloud Capital’s obligation to provide Services will be excused until access is provided.

10. Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Cloud Capital does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer authorizes Cloud Capital to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.

11. Commercial Terms.

11.1. Subscription Term. Except as set forth in an Order, each Subscription Term will automatically renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 30 days before the current Subscription Term ends.

11.2. Affiliate Orders. An Affiliate of Customer may use Services by entering into its own Order as agreed with Cloud Capital. Each such Order creates a separate agreement between the Affiliate and Cloud Capital which incorporates this Agreement, with the Affiliate treated as “Customer”. Neither Customer nor any Customer Affiliate has any rights or obligations under each other’s agreement with Cloud Capital, and breach or termination of any such agreement is not breach or termination under any other.

12. DISCLAIMERS. THE SERVICES AND ALL OUTPUT (INCLUDING OUTPUT DATA) RESULTING FROM THE SERVICES, SUPPORT, TECHNICAL SERVICES, AND ALL OTHER CLOUD CAPITAL SERVICES ARE PROVIDED “AS IS”. CLOUD CAPITAL, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. CLOUD CAPITAL DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT CLOUD CAPITAL WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. CLOUD CAPITAL IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE CLOUD CAPITAL’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE PERFORMANCE TO THE SHORTEST LEGALLY PERMITTED PERIOD. YOU UNDERSTAND AND AGREE THAT 11.1. YOU USE ANY PORTION OF THE SERVICE, INCLUDING ANY DECISIONS YOU MAKE BASED ON OUPTUT, OR INFORMATION DISPLAYED OR PRODUCED VIA THE SERVICE, AT YOUR OWN DISCRETION AND RISK. THE SERVICE IS FOR INFORMATIONAL PURPOSES ONLY. CLOUD CAPITAL IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR ANY LOSS OF DATA, AND CLOUD CAPITAL IS NOT RESPONSIBLE FOR THE ACCURACY, TIMELINESS, OR COMPLETENESS OF THE SERVICE, OUTPUT (INCLUDING OUTPUT DATA) OR INFORMATION RELATED THERETO.

13. Term and Termination.

13.1. Term. The term of this Agreement (the “Term”) starts on the Effective Date and continues until expiration or termination of all Subscription Terms.  

13.2. Termination. Either party may terminate this Agreement or an Order if the other party: (a) fails to cure a material breach of this Agreement within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

13.3. Effect of Termination. Upon expiration or termination of an Order, Customer’s access to and Cloud Capital’s obligations to provide the Services described in the Order will cease. During a Subscription Term, Customer may export data or information that Customer (including its Users) submits to the Services, including from Third-Party Platforms from the applicable Service using the export features described in the applicable Documentation. After that 30-day period, Cloud Capital will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 16, may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.

13.4. Survival. These Sections survive expiration or termination of this Agreement: 2.4 (Restrictions), 5.4 (Usage Data; Aggregated Data), 6 (Ownership), 7 (Customer Obligations), 12 (Disclaimers), 13.3 (Effect of Termination), 13.4 (Survival), 14 (Limitations of Liability), 15 (Indemnification), 16 (Confidentiality), 16.5 (Required Disclosures), 19 (General Terms), and Exhibit A (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

14. Limitations of Liability.

14.1. Consequential Damages Waiver. Except for Excluded Claims (as defined below) neither party (nor its suppliers or licensors) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.

14.2. Liability Cap. Except for Excluded Claims, each party’s (and its suppliers’ and licensor’s) entire liability arising out of or related to this Agreement will not exceed, in aggregate, $100.

14.3. Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Sections 2.4 (Restrictions) or 7 (Customer Obligations); (b) either party’s breach of Section 16 (Confidentiality) (but excluding claims relating to Customer Data); or (c) amounts payable to third parties under the indemnifying party’s obligations in Section 15 (Indemnification).

14.4. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 14.4 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

15. Indemnification.

15.1. Indemnification by Cloud Capital. Cloud Capital will defend Customer from and against any third-party claim to the extent alleging that a Service as operated by Cloud Capital, when used by Customer as permitted under the applicable Order infringes or misappropriates a third-party’s U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Cloud Capital resulting from the claim.

15.2. Indemnification by Customer. Customer will defend Cloud Capital from and against any third-party claim to the extent resulting from Customer Data, Customer’s breach or alleged breach of Section 7 (Customer Obligations), or Customer’s use of the Services or Output Data and any decisions made by Customer based on the foregoing and will indemnify and hold harmless Cloud Capital against any damages and costs awarded against Cloud Capital (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.

15.3. Procedures. The indemnifying party’s obligations in this Section 15 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services, when Cloud Capital is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

15.4. Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Cloud Capital determines necessary to avoid material liability, Cloud Capital may at its option: (a) procure rights for Customer’s continued use of the applicable Service; (b) replace or modify the allegedly infringing portion of the applicable Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (c) terminate the affected Order.

15.5. Exceptions. Cloud Capital’s obligations in this Section 15 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Services or use of Services in combination with items not provided by Cloud Capital (including Third-Party Platforms); (b) to infringement resulting from Services other than the most recent release; (c) to unauthorized use of Services; (d) if Customer settles or makes any admissions about a claim without Cloud Capital’s prior consent; or (e) to Trials and Betas (as defined in Section 17) or other free or evaluation use.

15.6. Exclusive Remedy. This Section 15 sets out Customer’s exclusive remedy and Cloud Capital’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.

16. Confidentiality.

16.1. Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Cloud Capital’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Services. Customer’s Confidential Information includes Customer Data.

16.2. Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 5.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Cloud Capital is the Recipient, Cloud Capital may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Cloud Capital, the subcontractors referenced in Section 19.9), provided it remains responsible for their compliance with this Section 16 and they are bound to confidentiality obligations no less protective than this Section 16.

16.3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.

16.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 16.

16.5. Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

16.6. Return or Destroy Confidential Information. Upon termination of this Agreement, or at Discloser’s written request, Recipient shall return or, if directed by Discloser, destroy all Confidential Information in its possession, custody, or control and cease all further use thereof. Recipient shall provide Discloser with a written certification of its compliance with this section upon Discloser’s request. Notwithstanding the foregoing, Cloud Capital may retain copies of Confidential Information to the extent required by law or any applicable governmental or regulatory authority, and to the extent such Confidential Information is automatically archived on backup or disaster recovery systems in accordance with Cloud Capital’s standard backup procedures. Such Confidential Information shall remain subject to all confidentiality obligations under this Agreement.

17. Trials and Betas. If Customer receives access to Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Cloud Capital (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Cloud Capital may never release, and their features and performance information are Cloud Capital’s Confidential Information. Notwithstanding anything else in this Agreement, Cloud Capital provides no warranty, indemnity, or support for Trials and Betas, and its liability for Trials and Betas will not exceed US$50.

18. Publicity. Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. Cloud Capital may use Customer’s name, trademarks, and Results in Cloud Capital’s customer lists and promotional materials but will cease further use at Customer’s written request.

19. General Terms.

19.1. Assignment. Cloud Capital may freely assign or transfer this Agreement and its rights herein without notice to or consent from Customer. Customer may not assign this Agreement without the prior consent of Cloud Capital, except in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

19.2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States, irrespective of the location of the applicable Cloud Capital entity you are contracting with and without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction or the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California and both parties submit to the personal jurisdiction of those courts.

19.3. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

19.4. Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the first page and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either party may update its address with notice to the other party. Cloud Capital may also send operational notices to Customer by email or through the Services.

19.5. Entire Agreement. This Agreement (including the Order) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

19.6. Amendments. Cloud Capital may, from time to time, change this Agreement. Please check this Agreement periodically for changes. Revisions will be effective immediately except that material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept the modified Agreement in order to continue to use the Service. If you do not agree to the modified Agreement, then you should discontinue your use of the Service. Except as expressly permitted in this Section 19.6, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties to this Agreement.

19.7. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

19.8. Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.

19.9. Subcontractors. Cloud Capital may use subcontractors and permit them to exercise Cloud Capital’s rights, but Cloud Capital remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

19.10. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.

19.11. Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

19.12. Open Source. The Services may incorporate third-party open source software (“OSS”) a list of which Cloud Capital will provide upon Customer’s written request. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

19.13. Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of the body of this Agreement and the terms of any exhibits, attachments, addenda, or other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms contained in the body of this Agreement; (b) the terms of the exhibits, attachments, and addenda to this Agreement; and (c) the Documentation.

Exhibit A

Definitions

1. “Affiliate” means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of 50% or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
2. “Aggregated Data” means Customer Data, that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
3. “Confidential Information” has the meaning given to it in Section 16.1.
4. “Customer Data” means any data or information that: (a) Customer (including its Users) submits to the Services, including from Third-Party Platforms; and (b) is Processed by Cloud Capital to provide the Services to Customer.
5. “Customer Systems” means Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Services.
6. “Discloser” has the meaning given to it in Section 16.1.
7. “Documentation” means the then-current version of Cloud Capital’s usage guidelines and standard technical documentation for the Services that Cloud Capital makes generally available to its customers that it provides the applicable Services to.
8. “Excluded Claims” has the meaning given to it in Section 14.1.
9. “Force Majeure Events” has the meaning given to it Section 19.8.
10. “Laws” means all applicable relevant local, state, federal and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of data, including Customer Personal Data and Customer Personal Information.
11. “Log-in Credentials” has the meaning given to it in Section 2.3.
12. “Order” means an order or online ordering process that describes the Services being purchased by Customer.
13. “OSS” has the meaning given to it in Section 19.12.
14. “Output Data” means resultant forecast projections and savings analyses produced by the Services using Customer Data, including Results.
15. “Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
16. “Recipient” has the meaning given to it in Section 16.1.
17. “Results” means data and information illustrating Customer’s business results, impacts, return on investment (ROI) case studies (e.g., “30% Cost Savings”), and other metrics related to Customer’s use of the Services.
18. “Service” or “Services” means the then-current version of Cloud Capital’s proprietary service and other services that are identified in the relevant Order. Each of the Services includes the Documentation for the Service.
19. “Subscription Term” means the period during which Customer’s subscription to access and use the Services is in effect, as identified in the applicable Order.
20. “Term” has the meaning given to it in Section 13.1.
21. “Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Cloud Capital that Customer elects to integrate or enable for use with any Service.
22. “Trials and Betas” has the meaning given to it in Section 17.
23. “Updates” means any updates, modifications, or bug fixes to the Services or Documentation that Cloud Capital provides free of additional charge to its customers using a Service.
24. “Upgrades” means additions, enhancements, upgrades, new services, or modules that include new features and substantial increases in functionality to the Services that Cloud Capital makes available to its customers.
25. Usage Data” means information generated from the use of the Services, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Services, but excluding any identifiable Customer Data.
26. “User” means any employee or contractor of Customer or its Affiliates that Customer allows to use the Services on Customer’s behalf.

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