OPENMETAL, INC.
CLOUD SERVICES AGREEMENT

Last Updated: January 1, 2023

IMPORTANT: THESE TERMS AND CONDITIONS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER. DEPENDING ON THE JURISDICTION, THAT SECTION MAY NOT APPLY.

Terms and Conditions, Related Agreement, Policies and Order Form.
1. This Cloud Services Agreement (“CSA”) is an agreement entered into by OpenMetal, Inc. (“Company”) and the entity or person agreeing to these terms as set forth in the applicable order form (“Customer”), which order form is incorporated herein by this reference (together with any subsequent order forms submitted by Customer, collectively, the “Order”), and governs the leasing of the hardware, licenses, software and purchases the support services and other related products and cloud services (as applicable) ordered by Customer as set forth in the Order (collectively, the “Cloud Services”).
2. Company and Customer may be individually referred to herein as a “Party” and together the “Parties.”
3. This CSA is subject to the Order, Company’s Universal Terms of Use (“UToU”), Acceptable Use Policy (“AUP”), Privacy Policy (“Privacy Policy”), and Data Processing Addendum (“DPA”), all of which incorporated herein by reference. The UToU, AUP, Privacy Policy and Order shall collectively be referred to as the “Agreements.” In the event of a conflict between the documents that make up the Agreements, the documents will control in the following order (of decreasing precedence): the Data Processing Addendum, the Privacy Policy, AUP, this CSA and the remainder of the Agreements (excluding the foregoing).
4. The person listed on the signature page of the Order (“Signatory”) enters this CSA on behalf of Customer, and represents and warrants that the Signatory
  1. has full legal authority to bind Customer to the Agreements;
  2. has read and understands the Agreements; and
  3. agrees, on behalf of Customer, to the Agreements.
Term and Termination.
1. Effective Date and Term. This CSA is effective on the date Company signs the Order (the “Effective Date”). The Order shall commence as of the Effective Date and shall remain in effect for the time period listed in the Order, unless earlier terminated as provided herein (the “Term”).
2. Termination for Breach. To the extent permitted by applicable law, either Party may terminate the CSA immediately on written notice if
  1. the other party is in material breach of the Agreements and fails to cure that breach within ten (10) business days after receipt of written notice of the breach; or
  2. the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
3. Trial Period. If Customer enters into an Order, Company may provide Customer with a trial for the time period set forth in the applicable Order beginning on the Effective Date (“Trial Period”). Company will make the Cloud Services available to Customer on a trial basis until the end of the Trial Period. Within three (3) days of the end of the Trial Period, Customer shall notify Company of its desire to continue with or cancel the applicable Order. In the event Customer desires to cancel the applicable Order at the end of the Trial Period, Customer shall be responsible for the fees related to the Trial Period as specified in the applicable Order and the applicable Order shall be canceled. The Trial Period is limited to one Trial Period per account. Company, as determined in its sole discretion, reserves the right to revoke, restrict and/or terminate access to the Cloud Services during the Trial Period.
4. Termination Due to Applicable Law; Violation of Laws. Company may terminate the CSA immediately on written notice if Company reasonably believes that
  1. continued provision or portion of any Cloud Service used by Customer would violate applicable law(s); or
  2. Customer has violated or caused Company to violate any applicable commercial and public anti-bribery laws (including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act 2010, that prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Government officials include: any government employees, candidates for public office, members of royal families, and employees of government-owned or government-controlled companies, public international organizations, and political parties) or applicable export and re-export control laws and regulations, including (i) the Export Administration Regulations maintained by the U.S. Department of Commerce; (ii) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control; and (iii) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State.
5. Effects of Termination. If any of the Agreements are terminated, then
  1. all rights and access to the Cloud Services will terminate (including access to Customer Content, if applicable), unless otherwise described in this CSA; and
  2. all amounts owed by Customer to Company are immediately due upon Customer’s receipt of the final electronic bill or as stated in the final invoice.
Provision of the Cloud Services.
1. Cloud Services Use. During the Term (as defined herein), Company will provide the Cloud Services in accordance with the Order and Agreements, including the Service Level Agreement (“SLA”), and Customer may use the Cloud Services, and integrate and use the Cloud Services in accordance with the Agreements.
2. Customer Account and Admin Console. Customer must have a Customer account to use the Cloud Services (“Account”) and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and for any use of its Account. Company has no obligation to provide multiple accounts to Customer. Within the Account, Customer will have access to an Admin Console or similar application, through which Customer may manage use of the Cloud Services.
3. Modifications.
  1. To the Cloud Services. Company may make commercially reasonable updates to the Cloud Services from time to time. Company will inform Customer if Company makes a material change to the Cloud Services that has a material impact on Customer’s use of the Cloud Services provided that Customer has subscribed with Company to be informed about such change.
  2. To the Agreements. Company may make changes to the Agreements and pricing from time to time. Unless otherwise noted by Company, material changes to the Agreements will become effective thirty (30) days after they are posted, except to the extent the changes apply to new functionality or the DPA, or are required by applicable law, in which case they will be effective immediately. Company will provide at least ninety (90) days’ advance notice for materially adverse changes to any SLAs by
    1. sending an email to the email address located in the Account; or
    2. posting a notice to the applicable SLA webpage.
    If Customer does not agree to the revised Agreements, Customer may stop using the Cloud Services. Customer’s continued use of the Cloud Services after such material change will constitute Customer’s consent to such changes. Company will post any modification to the Agreements.
  3. To the Data Processing Addendum. Company may only change the DPA
    1. where such change is required to comply with applicable law, is expressly permitted by the Data Processing Addendum; is commercially reasonable;
    2. does not result in a material reduction of the security of the Cloud Services;
    3. does not expand the scope of or remove any restrictions on Company’s processing of Personal Data, as described in the DPA; or
    4. does not otherwise have a material adverse impact on Customer’s rights under the DPA.
    If Company makes a material change to the DPA in accordance with this Section, Company will post the change at the webpage containing the Data Processing Addendum.
  4. Discontinuation of the Cloud Services. Company will notify Customer at least three (3) months before discontinuing any portion of the Cloud Service (or associated material functionality) unless Company replaces such discontinued portion or functionality with a materially similar portion or functionality. Nothing in this Section limits Company’s ability to make changes required to comply with applicable law, address a material security or data privacy risk, or avoid a substantial economic or material technical burden. This Section does not apply to pre-general availability of the Cloud Services, offerings, or functionality.
Payment Terms.
1. The Order is subject to the payment terms stated therein. Customer agrees to pay the fees specified in the applicable Order. Fees are billed as provided in an Order.
2. Subject to any legal requirements, fees due under this CSA may include any local, state, federal or foreign taxes, levies or duties of any nature, including, value-added, sales use or withholding taxes (collectively, “Taxes”). If Company has a legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. Taxes.
  1. Customer is responsible for all government-imposed taxes (including, without limitation, any local, state, federal or foreign taxes, levies or duties of any nature, including, value-added, sales use or withholding taxes), except for taxes based on Company’s net income, net worth, asset value, property value, or employment (“Taxes”). Customer will pay Company for the Cloud Services without any reduction for Taxes. If Company is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Company, unless Customer provides Company with a timely and valid tax exemption certificate in respect of those Taxes.
  2. Customer will provide Company with any applicable tax identification information that Company may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Company for) any Taxes, interest, penalties, or fines arising out of any improperly or false declaration by Customer.
  3. Payment Disputes and Refunds. Any payment disputes must be submitted in writing before the payment due date. Refunds (if any) are at Company’s discretion and will only be in the form of credit for the Cloud Services. Nothing in the Agreements obligates Company to extend credit to any party.
  4. Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such delinquent amounts. Further, if Customer’s payment for the Cloud Services is overdue, Company may disable or limit access to or use of the Cloud Services or components of the Cloud Services.
Customer Responsibilities.
1. Customer Content. Customer is solely responsible for the quality, performance and all other aspects of any data provided to Company by Customer or the individuals or entities (include employees of Customer or Customer’s affiliates and other authorized third parties) who use or visit Customer’s websites and applications or are permitted by Customer to use the Cloud Services (collectively, “End-Users”) through the the Cloud Services (collectively, “Customer Content”). Customer shall be fully and solely responsible for uploading, supplementing, modifying and updating the Customer Content.
2. Back-Ups. Customer is solely responsible for making back-up copies of Customer Content.
3. Customer Personnel. Customer shall be responsible for and allocate engineering personnel and resources to enable Company to deliver and perform the Cloud Services.
4. Compliance. Customer will
  1. ensure that Customer End-Users comply with the Agreements;
  2. use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Cloud Services; and
  3. promptly notify Company of any unauthorized use of, or access to, the Cloud Services, Account, or Customer’s password of which Customer becomes aware.
  Company reserves the right to investigate any potential violation of the AUP by Customer, which may include reviewing Customer content or data.
5. Privacy. Customer assumes sole and full responsibility for providing End-Users with any required disclosure or explanation of the various features related to Customer Content and any goods or services described therein, as well as any rules, terms or conditions of use, including matters related to data privacy and cybersecurity laws. Customer is responsible for any consents and notices required to permit:
  1. Customer’s use and receipt of the Cloud Services; and
  2. Company’s accessing, storing, and processing of data provided data to Company by Customer, including the Customer Content, by Customer under the Agreements.
6. Cooperation. Customer will cooperate fully with Company in connection with Company’s delivery of the Cloud Services necessary to perform under the Order. Customer may be required to provide equipment and/or software (additional to such stated in the Order) that may be necessary for Customer to use the Cloud Services for Customer’s intended use of the Cloud Services.
7. Delays. Delays in Customer’s performance of its obligations under the Agreements may extend the time for Company’s performance to provide the Cloud Services.
8. Restrictions. Customer will not, and will not allow End-Users to:
  1. copy (except for installation purposes), modify, or create a derivative work of the Cloud Services;
  2. reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Cloud Services (except to the extent such restriction is expressly prohibited by applicable law);
  3. sell, resell, sublicense, transfer, or distribute any or all of the Cloud Services; or
  4. access or use the Cloud Services:
    1. for activities where the use or failure of the Cloud Services would reasonably be expected to lead to death, personal injury, or environmental or property damage;
    2. in violation of the AUP;
    3. in a manner intended to avoid paying any amounts owed by Customer;
    4. to engage in cryptocurrency mining without Company’s prior written approval;
    5. to operate or enable any telecommunications service or in connection with any Customer Application that allows End-Users to place calls or to receive calls from any public switched telephone network;
    6. for materials or activities that are subject to the International Traffic in Arms Regulations (“ITAR”) maintained by the United States Department of State;
    7. in a manner that breaches, or causes the breach of export and re-export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and ITAR; or
    8. to transmit, store, or process health information subject to United States he Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it (“HIPAA”) regulations except as permitted by an executed HIPAA “Business Associate Agreement” (as defined in HIPAA).
Documentation and Specifications. To use the Cloud Services and the extent available, at no additional charge to Customer, unless otherwise stated in an Order, Company shall provide or make available Customer with any documentation and specifications relating to the Cloud Services (collectively, “Documentation and Specifications”). If the Documentation and Specifications are revised or supplemented at any time, Company shall promptly deliver a copy of such revised or supplemental Documentation and Specifications to Customer or make such available, at no additional cost to Customer. Customer may, at any time, reproduce copies of all Documentation and Specifications and other materials provided by Company, distribute such copies to its personnel, and incorporate such copies into its own technical manuals, provided that such reproduction relates to Customer’s and its personnel’s use of the Cloud Services as permitted in the Agreements, and all copyright and trademark notices, if any, are reproduced thereon. To the maximum extent available, Company shall deliver the Documentation and Specifications in electronic form to Customer.
Monitoring of Customer Content; License to Company; Suspension.
1. Company does not review, pre-screen or monitor Customer Content. However, Company reserves the right (but undertakes no duty) to do so and decide whether any item of Customer Content is appropriate and/or complies with the Agreements.
2. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Term (as defined herein) to do the following to the extent necessary in the performance of the Cloud Services:
  1. the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to perform the Cloud Services.
  2. digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content;
  3. make archival or backup copies of the Customer Content (although Company is not required to do so as Customer is solely responsible for backing-up any Customer Content);
  4. except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer; and
  5. Company, in its sole discretion, reserves the right:
    1. to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the the Cloud Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, of the Customer Content and/or website(s)); and/or
    2. to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal.
  6. Customer further agrees that Company shall not be liable to Customer for any loss or damages that may result from such conduct.
Trademark and/or Copyright Claims. Company supports the protection of intellectual property. Company responds to notices of alleged copyright or trademark infringement claims and will terminate the Account of repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act and other laws. Make copyright and trademark claims at Legal Inquiries.
Data and Security.
1. Company may collect certain information about computing jobs Customer utilizes via the Cloud Services, including but not limited to CPU utilization, memory usage, IO performance, and error and information messages.
2. Customer is solely responsible for monitoring the status of all computing jobs. Company may throttle and/or terminate any computing jobs that Company determines may degrade the performance of the Cloud Services. Company is not responsible for any data loss and/or data corruption that may occur as part of Customer’s computing jobs.
Customer’s Representations and Warranties.
1. Customer hereby represents and warrants to Company, and agrees that during the term and any Term (as such terms are defined herein) Customer will ensure that:
  1. Customer is and remains the legal owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all copyrights, trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any person or third party;
  2. Customer’s use, publication, and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
  3. Customer will comply with all applicable laws, rules, and regulations regarding the Customer Content and will use the Customer Content only for lawful purposes; and
  4. Customer has used and will continue to use its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses and/or other malicious code.
2. Customer shall be solely responsible for the development, operation and maintenance of Customer Content, electronic commerce activities, all products and services offered by Customer or appearing through Customer Content and for all contents and materials appearing online or on Customer’s products or within any services, including, without limitation:
  1. the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products or services;
  2. ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person or third party; and
  3. ensuring that the Customer Content and the content and materials appearing in Customer Content or electronic commerce activities, products and services offered by Customer are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries and/or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with Customer Content, its website(s) and electronic commerce activities.
3. In addition to transactions entered into by Customer or on Customer’s behalf, Customer agrees to be bound by the terms of the Agreements for transactions entered into on Customer’s behalf by anyone acting as Customer’s agent, and transactions entered into by anyone who uses Customer’s Account, whether or not the transactions were on Customer’s behalf.
Cloud Services, Support, SLA and Software. During the Term, Company shall:
1. Provide Customer with the Cloud Services set forth in the Order.
2. Provide Customer with the support services set forth in the Order.
3. Achieve the service levels and performance standards set forth in the Order or SLA. Subject to the terms and conditions of the SLA, Company shall use commercially reasonable efforts to attempt to provide the Cloud Services on twenty-four (24) hours a day, seven (7) days a week basis, however, such up-time is not a guarantee. Customer understands, acknowledges and agrees that from time to time the Products and Subscriptions may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions, periodic maintenance, repairs or replacements that Company undertakes from time to time or causes beyond Company’s reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. Customer understands, acknowledges and agrees that Company has no control over the availability of the Products and Subscriptions on a “guaranteed” continuous or uninterrupted basis and that Company assumes no liability to Customer or any other party with regard thereto.
4. During the Term, Company hereby grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable license to use any software products provided related to an Order in accordance with the provisions set out in the UToU and the Order. Subject to mandatory applicable law(s), Customer shall not
  1. license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any software provided under an Order in any way;
  2. modify or make derivative works based upon the software;
  3. provide the software as a cloud service, service bureau, or outsourcing service; or
  4. reverse engineer or access the software in order to
    1. build a competitive product or service;
    2. build a product using similar ideas, features, functions or graphics of the software;
    3. copy any ideas, features, functions or graphics of the software.
Intellectual Property Rights; Protection of Customer Data; Feedback.
1. Intellectual Property Rights. Except as expressly stated in the Agreements, no Party is granted any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property.
2. Protection of Customer Data. Company will only access or use Customer Content to provide the Cloud Services to Customer and will not use it for any other Company products, services, or advertising. Company has implemented and will maintain administrative, physical, and technical safeguards to protect Customer Content, as further described in the DPA.
3. Customer Feedback. At its option, Customer may provide feedback or suggestions about the Cloud Services to Company (“Feedback”). If Customer provides Feedback, then Company and its affiliates may use that Feedback without restriction and without obligation to Customer.
Upgrades. Subject to the compatibility of any hardware or software installed by Customer (other than such delivered under the Order), Company may, as determined is Company’s sole discretion, provide Customer with software version upgrades only, without additional charge to Customer, after commercial release (“Upgrades”). Upgrades do not include any hardware updates or upgrades. Upon delivery to Customer, each Upgrade will constitute an element of the applicable portion of the Cloud Services and will thereafter be subject to the terms and conditions contained in the CSA, including without limitation warranty, and indemnity terms.
Technical Support Services
1. By Customer. Customer is responsible for technical support to its End-Users.
2. By Company. Subject to payment of applicable support fees as set forth in the Order, Company will provide the support listed in the Order to Customer during the Term.
Confidential Information.
1. Confidential Information. “Confidential Information” means the following that one party to this CSA (“Discloser”) discloses to the other (“Recipient”):
  1. any document Discloser marks as “Confidential”;
  2. any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within three business days;
  3. the non-public features and functions of the Cloud Services, for which Company is Discloser; and
  4. any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential.
2. Confidential Information Limitations. Notwithstanding the foregoing, Confidential Information does not include information that:
  1. is in Recipient’s possession at the time of disclosure (which has not previously been designated as Confidential Information);
  2. is independently developed by Recipient without use of or reference to Confidential Information;
  3. becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or
  4. is approved for release in writing by Discloser.
  Recipient is on notice that the Confidential Information may include Discloser’s valuable trade secrets.
3. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this CSA (the “Purpose”). Recipient shall not:
  1. disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Section; and
  2. disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
4. Required Disclosure. Notwithstanding any provision to the contrary in this CSA, the Recipient or its affiliates may also disclose Confidential Information to the extent required by applicable request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process; provided that the Recipient or its affiliate uses commercially reasonable efforts to:
5. promptly notify the other party before any such disclosure of its Confidential Information; and
6. comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure.
  Notwithstanding the foregoing, subsections above will not apply if the Recipient determines that complying with such subsections could result in a violation of the applicable legal request; obstruct a governmental investigation; or lead to death or serious physical harm to an individual.
7. Injunction. Recipient agrees that breach of this Section would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
8. Termination and Return of Confidential Information. With respect to each item of Confidential Information, the obligations of Section 15.3 above (Nondisclosure) will terminate three (3) years after the date of termination of this CSA; provided that such obligations related to Confidential Information constituting Discloser’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon request of Discloser or termination of this CSA, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
9. Retention of Rights. This CSA does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
10. Exception and Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this CSA:
  1. Immunity. An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and
  2. Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal (or applicable protective order); and (B) does not disclose the trade secret, except pursuant to court order.
Representations And Warranties.
1. From Company.
  1. Function. Company represents and warrants that, during the Term, the Cloud Service will perform materially as described in the Documentation and Specifications. HOWEVER, COMPANY DOES NOT WARRANT THAT THE CLOUD SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL CLOUD SERVICE ERRORS, OR THAT THE CLOUD SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE CLOUD SERVICES THAT ARISE FROM CUSTOMER CONTENT OR THIRD-PARTY CONTENT, APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. In the event of breach of the warranty in the preceding sentences, Company shall (to the extent possible or practical):
    1. repair the Cloud Services;
    2. replace the Cloud Services with hardware software of substantially similar functionality; or
    3. if such attempts do not succeed after sixty (60) days, this CSA shall be declared null and void. The preceding sentence, in conjunction with Customer’s right to terminate this CSA for breach where applicable, states Customer’s sole remedy and Company’s entire liability for breach of the warranty in this Subsection 16.1.
  2. Intellectual Property. To the extent applicable under law, Company represents and warrants that it is the owner of the Cloud Services and of each and every component thereof, or the recipient of a valid license thereto (except for any publicly accessible (i.e., open source) aspects of the Cloud Services), that it has and will maintain the full power and authority to grant the intellectual property rights to the Cloud Services set forth in this CSA, without the further consent of any third party, and that the Cloud Services do not infringe on the rights of any third party. In the event the of breach of the warranty in this Subsection 16.1.2 (to the extent possible or practical), Company shall, at its own expense, replace or modify the Cloud Services to make it non-infringing, provided such modification or replacement does not materially degrade any functionality set forth in the Documentation and Specifications; provided if the foregoing is not possible or practical, Company may terminate this CSA. In conjunction with Section 16.1 (From Company), the preceding sentence states Company’s sole obligation and liability, and Customer’s sole remedy, for potential or actual intellectual property infringement by the Cloud Services.
2. From Both Parties. Each Party represents and warrants to one another that each has the full right and authority to enter into, execute, and perform its obligations under this CSA and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this CSA.
3. Warranty Disclaimers. Except for the express warranties in Sections 16.1 and 16.2 above, COMPANY DOES NOT MAKE AND EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TITLE, NONINFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE CLOUD SERVICES AND ANY REPRESENTATIONS ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE CLOUD SERVICES.
4. Company does not warrant that the Cloud Services will perform without error or that it will run without immaterial interruption. Company provides no warranty regarding, and will have no responsibility for, any claim arising out of:
  1. a modification of the Cloud Services made by anyone other than Company, unless Company approves such modification in writing; or
  2. use of the Cloud Services in combination with any operating system not authorized in the Specifications or Documentation or with hardware or software specifically forbidden by the Documentation and Specifications.
Indemnification.
1. From Company. Company shall defend and indemnify Customer and Customer’s Associates (as defined below in Section 17.3) against any “Indemnified IP Claim,” meaning any third-party claim, suit, or proceeding arising out of, related to, or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right by the Cloud Services. Company’s obligations set forth in this Section 17.1 do not apply to the extent that an Indemnified IP Claim arises out of
  1. Customer’s breach of this CSA;
  2. revisions to the Cloud Services made without Company’s written consent;
  3. Customer’s failure to incorporate Upgrades that would have avoided the alleged infringement, provided Company offered such Upgrades without charges not otherwise required pursuant to this CSA;
  4. use of the Cloud Services in combination with hardware or software other than as specified by Company.
  In the event of an Indemnified IP Claim, Company may exercise any of the remedies set forth in Subsection 17.1 above, including without limitation its right therein to terminate this CSA.
2. From Customer. Customer shall defend and indemnify Company and Company’s Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding:
  1. by any sub-customer or End-User, as well as any such entity’s employee, contractor; or
  2. Company’s material breach of this CSA.
  Notwithstanding the foregoing, no such claim, suit, or proceeding shall be considered an Indemnified Claim pursuant to this Section 17.2 to the extent that it arises out of, relates to, or alleges: intellectual property infringement by the Cloud Services; or an injury caused by the Cloud Services’s failure to conform to its Documentation or Specifications. For the avoidance of doubt, Indemnified Claims do not include claims related to injuries to the extent caused by the Subscription’s failure to perform as represented by Company but not by the Documentation or Specifications.
3. Litigation and Additional Terms. The obligations of the indemnifying party (“Indemnitor”) pursuant to Sections 17.1 or 17.2 above:
  1. include retention and payment of attorney’s and expert fees and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments; and
  2. will be excused to the extent that the other contracting party’s (“Indemnified Party’s”) or any of such Indemnified Party’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. As used in this Section 17, a Party’s “Associates” are its officers, directors, managers, shareholders, members, parents, subsidiaries, agents, successors, and assigns. Customer’s “Associates” also include sub-customers and end-customers, provided each such sub-customer or end-customer was rightfully licensed pursuant to this CSA.
Limitation of Liability.
1. Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 15 (Confidential Information) and Section 18.3 (Clarifications and Disclaimers), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE CLOUD SERVICES (INCLUDING SOFTWARE PRODUCT OR SUPPORT SERVICES), INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE CLOUD SERVICES OR SUPPORT SERVICES, OR FOR ANY CONTENT OR DATA OBTAINED FROM OR THROUGH THE CLOUD SERVICES OR SUPPORT SERVICES, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Dollar Cap. TO THE FURTHEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS CSA WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO COMPANY BY CUSTOMER WITHIN THE PRECEDING SIX (6) MONTHS THE EVENT GIVING RISE TO SUCH CLAIM, EXCEPT COMPANY’S TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO CLOUD SERVICES IS LIMITED TO $5,000 USD.
3. Clarifications and Disclaimers. Nothing in this CSA excludes or limits either Party’s liability for:
  1. fraud or fraudulent misrepresentation;
  2. obligations under Section 17 (Indemnification);
  3. its infringement of the other Party’s intellectual property rights;
  4. its payment obligations under the CSA; or
  5. matters for which liability cannot be excluded or limited under applicable law.
  If applicable law(s) limits the application of the provisions of this Section 18.3 the Parties’ liability will be limited to the maximum extent permissible by law. For the avoidance of doubt, each Party’s liability limits, and other rights set forth in this Section apply likewise to its Associates, affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
Dispute Resolution and Arbitration; Class Action Waiver. PLEASE READ THIS CAREFULLY IF CUSTOMER IS A RESIDENT OF THE UNITED STATES OF AMERICA. IT AFFECTS CUSTOMER’S LEGAL RIGHTS.
1. Applicable Law. This CSA and any dispute that may arise between Customer and Company shall be resolved by binding arbitration and governed by and construed in accordance with the Federal Arbitration Act, applicable federal law and the laws of the State of Delaware, United States of America, excluding its rules regarding conflicts of law. Customer agrees that any claim or dispute Customer may have against Company must be resolved exclusively by a state or federal court located in Kent County, Delaware, except as otherwise agreed by the Parties in writing or as described below. Customer agrees to submit to the personal jurisdiction of the courts located in Kent County, Delaware for the purpose of litigating all such claims or disputes.
2. Dispute Resolution. Before either Party may seek arbitration as provided below, the complaining party must first send to the other party a written notice of dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. After the Notice is received, the Parties may attempt to resolve the claim or dispute informally. If the Parties do not resolve the claim or dispute within sixty (60) calendar days after the Notice is received, either Party may begin an arbitration proceeding as provided below.
3. Arbitration. Customer agrees to resolve the dispute in a cost-effective manner through binding arbitration (including non-appearance-based arbitration). In such event, Customer hereby agrees the arbitration procedure shall be initiated through the American Arbitration Association (collectively, “ADR”). The ADR provider and Parties must comply with the following rules:
  1. the arbitration shall be conducted by telephone, online and/or be solely based on written submissions;
  2. the arbitration shall not involve any personal (whether physically or virtually) appearance by the Parties or witnesses unless otherwise mutually agreed by the Parties in writing, in which case the location of the arbitration shall be in Kent County, Delaware, and
  3. any award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration expressly excludes claims for injunctive or other equitable relief.
    Arbitral claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Kent County, Delaware and conducted by a single arbitrator, knowledgeable in the subject matter of the dispute. Except as provided below, the party bringing the action shall be responsible for paying all arbitration initiation, filing and administrative fees. The Parties shall equally split the arbitrator’s fees. Each Party shall bear its own attorneys’ and experts’ fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorneys’ and experts’ fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages. The arbitrator cannot certify a class or institute a class action. The arbitrator shall execute an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts and the basis of the arbitrator’s decision within thirty (30) days of the conclusion of the arbitration proceeding.
4. Waiver of Jury Trial. CUSTOMER HEREBY WAIVE CUSTOMER’S CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. In the event any litigation should arise between the Parties in any state or federal court in a lawsuit to vacate or enforce an arbitration award or otherwise, CUSTOMER WAIVES ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by binding arbitration as provided herein.
5. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WHICH MAY BE MADE WITHIN THE SCOPE OF THIS CSA MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THE AGREEMENTS, CUSTOMER WAIVES PARTICIPATING IN A CLASS ACTION.
Suspension.
1. AUP Violations. If Company becomes aware that Customer’s or any End-User’s use of the Cloud Services violates the AUP, Company will notify Customer and request that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Company’s request, then Company may disable or limit access to or use of the Cloud Services or components of the Cloud Services until the violation is corrected.
2. Other Suspension. Notwithstanding Section 20.1 (AUP Violations), Company may immediately suspend all or part of Customer’s use of the Cloud Services if
  1. Company reasonably believes Customer’s or any End-User’s use of the Cloud Services could adversely impact the Cloud Services, other Company customers’ or its end-users use of the Cloud Services or the Company network or servers used to provide the Cloud Services;
  2. there is suspected unauthorized third-party access to the Cloud Services; or
  3. Company reasonably believes that immediate suspension is required to comply with any applicable law.
    Company will lift any such suspension when the circumstances giving rise to the suspension have been resolved.
General Terms.
1. Headings. Headings and captions used in this CSA are for reference purposes only and will not have any effect on the interpretation of the Agreements.
2. Electronic Communications. The Parties may use electronic mail (“e-mail”) to satisfy written approval and consent requirements under the Agreements.
3. Independent Contractors. The Parties are independent contractors and will represent themselves in all regards. Neither Party is the agent of the other, and neither may make commitments on the other’s behalf.
4. No Third-Party Beneficiaries. Except as otherwise specifically provided herein, this CSA shall inure to the benefit of the Parties only, and this CSA does not confer any benefits on any third party unless it expressly states that it does.
5. Notices. Notices pursuant to this CSA shall be sent to Customer at the email in the Account and notices to Company must be sent to legal@openmetal.io. By submitting a request Customer agrees to the terms of the Privacy Policy regarding Customer’s personally identifiable information.
6. E-Mail notice will be treated as received when the email is sent. Customer is responsible for keeping the email in the Account current throughout the Term. To the extent legally required, notices pursuant to this CSA may be sent to addresses listed in the Order, or to such others as either Party may provide in writing; in such, event, such notices will be deemed received at such addresses upon the earlier of actual receipt or delivery in person, by nationally recognized overnight courier, by email with written confirmation of receipt, or by certified mail return receipt requested.
7. Force Majeure. Neither Party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including, without limitation to, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, epidemics, pandemics, or other causes beyond the performing party’s reasonable control.
8. Assignment and Successors. This CSA shall extend to and be binding upon the Parties hereto and their respective successors and assigns. Customer may not assign this CSA. Company may assign the Order and this CSA in the event of a transfer of Company to an affiliated entity; if Company transfers substantially all of the assets related to its rights and obligations hereunder to a third party; or if Company is acquired, reorganizes or merges, provided that, in any such event, to the extent legally able, Company shall provide Customer with at least sixty (60) days prior written notice.
9. Change of Control. If a Party experiences a change of control (i.e., greater than 50 percent of the voting rights or equity interests of a party) other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within thirty (30) days after the change of control.
10. Subcontracting. Company may subcontract obligations under the Agreements but will remain liable to Customer for any subcontracted obligations.
11. No Agency. The Agreements do not create any agency, partnership, or joint venture between the Parties.
12. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this CSA invalid or otherwise unenforceable in any respect. In the event that a provision of this CSA is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this CSA will continue in full force and effect.
13. No Waiver. Neither Party will be deemed to have waived any of its rights under this CSA by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this CSA will constitute a waiver of any other breach of this CSA.
14. Government Restricted Rights. Portions of the Cloud Services and Documentation and Specifications are commercial items, as that term is defined in 48 C.F.R. 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 C.F.R. 12.212. If the Cloud Services or Documentation and Specifications are acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense licenses only) and 48 C.F.R. 12.212 (for licenses with all federal government agencies), the government’s rights to the Cloud Services and Documentation and Specifications are limited to the commercial rights specifically granted in this CSA, as restricted by this CSA. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software or Documentation and Specifications. This Section does not grant Customer any rights not specifically set forth in this CSA.
15. Bankruptcy Rights. Each Party may terminate this CSA, without prejudice to any other remedy it may have immediately without further obligation, in the event the other Party makes an assignment for the benefit of its creditors, files under any voluntary bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code, or under the provisions of any law of like import, or the appointment of a trustee or receiver for its property.
16. Choice of Law and Jurisdiction: This CSA will be governed solely by the internal laws of the State of Delaware, including without limitation applicable federal law, without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; the 1980 United Nations Convention on Contracts for the International Sale of Goods; or other international laws. The Parties consent to the jurisdiction of the federal and state courts of Kent County, Delaware.
17. Equitable Relief. Nothing in the Agreements will limit either Party’s ability to seek equitable relief.
18. U.S. Governing Law.
  1. For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county, or state government entity, then the Agreements will be silent regarding governing law and venue.
  2. For U.S. Federal Government Entities. If Customer is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENTS OR THE CLOUD SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE STATE OF DELAWARE (EXCLUDING DELAWARE’S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE CLOUD SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN KENT COUNTY, DELAWARE.
  3. For All Other Entities. If Customer is any entity not identified in Section 21.17.1 (U.S. Governing Law for U.S. City, County, and State Government Entities) or Section 21.17.2 (U.S. Governing Law for Federal Government Entities), then the following applies: SUBJECT TO SECTION 19 (Dispute Resolution and Arbitration; Class Action Waiver) ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENTS OR THE CLOUD SERVICES WILL BE GOVERNED BY DELAWARE LAW, EXCLUDING THAT STATE’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF KENT COUNTY, DELAWARE, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
19. Construction. The Parties agree that the terms of this CSA result from negotiations between them. this CSA will not be construed in favor of or against either Party by reason of authorship.
20. Technology Export. Customer shall not: (a) permit any third party to access or use the Cloud Services in violation of any U.S. law or regulation; or (b) export the Cloud Services or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Cloud Services in, or export it to, a country subject to a United States embargo.
21. Attorney’s Fees and Costs. Claims for attorney’s fees and other costs (including expert fees) are recoverable by the prevailing party in any legal action (including arbitration) associated with the enforcement of this CSA, or the collection of any amounts due under this CSA.
22. Entire Agreement. The Order and this CSA sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications.
23. Amendments. Except as stated in Section 3.3.2 (Modifications: To the Agreement) or (c) Section 3.3.3 (Modifications: To the Data Processing Addendum), any amendment must be in writing, signed by both Parties, and expressly state that it is amending this CSA.
24. Entire Agreement. The Agreements set out all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. In entering into the Agreements, neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in the Agreements.
25. Survival. The following Sections will survive expiration or termination of this CSA: Section 2.4 (Effect of Termination), Section 4 (Payment Terms), Section 12 (Intellectual Property Rights; Protection of Customer Data; Feedback), Section 15 (Confidential Information), Section 16.2 (Warranty Disclaimers), Section 17 (Indemnification), Section 18 (Limitation of Liability), Section 18.3 (Clarifications and Disclaimers), Section 21 (General Terms).
26. Conflicting Languages. If the Agreements are translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.

OPENMETAL, INC. CLOUD SERVICES AGREEMENT

OPENMETAL, INC.
CLOUD SERVICES AGREEMENT