Terms and condition – Clouda Inc Ecommerce Development Agency

STANDARD TERMS AND CONDITIONS

The following standard terms and conditions (the “Terms and Conditions”) shall form an integral part of this Agreement between Clouda^® Inc (Clouda) and the client, as defined in the SOW (“Client”).

1. Background

Clouda is a consulting and application development firm with unparalleled VTEX system integration expertise. What Clouda does is deliver data-driven business solutions through services and SaaS product offerings. How Clouda does this is by building strong relationships. The result is enabled customers, not managed services.

2. Definitions

The following terms shall have the following meanings. All capitalized terms not otherwise set out in this section shall have the meaning as set out in the section of this Agreement in which they are defined.

a) “Affiliate” means, with respect to any party to this Agreement, any person, partnership, joint venture, corporation or other entity which directly or indirectly controls, is controlled by, or is under common control with such party where “control” (or variants of it) means the ability to direct the affairs of another by means of ownership, contract or otherwise.
b) “Business Day” means any day except Saturdays, Sundays or statutory holidays in the State of California.
c) “Ecommerce” means electronic commerce.
d) “Deliverables” means all products that are made, conceived, developed, or delivered to the Client by Clouda, either alone or jointly with others, in connection with the provision of the Services and includes all results of Clouda’s work pursuant to this Agreement, regardless of the form or format or of how such Deliverables are communicated or provided to the Client.
e) “Fees” means the fees payable by the Client to Clouda for the Services and / or the Deliverables, plus the Technology Fee and all applicable duties, levies, taxes, or similar governmental assessments of any nature, including but not limited to value added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction, if any.
f) “Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), original works of authorship, algorithms, tool-kits, technology, widgets, formulae, programs, concepts, work-arounds, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.
g) “Intellectual Property Rights” means all: (a) copyrights, (b) moral rights, (c) rights associated with works of authorship, (d) trademark rights, (e) trade name rights, (f) trade secret rights, (g) patent and industrial property rights (whether registered or not), and (h) other proprietary rights, in Intellectual Property.
h) “VTEX” means the vtex.com software as a service (SaaS) platform, including, without limitation, the VTEX Ecommerce and marketplace software.
i) “Services” means the consulting services to be provided by Clouda to the Client as described in this Agreement and any SOW(s) attached hereto.
j) “Statement(s) of Work” or “SOW(s)” means the Statements of Work attached hereto as Schedule “B” including any changes and modifications, that describe the Services and/or Deliverables to be provided by Clouda to the Client.
k) “Technology Fee” means a 2.0% charge applied to the Services for applications and technology that improve the quality and efficiency of the Services, further detailed under section 5.3 “Technology Fee”.

3. Statements of Work and Provision of Services

3.1. Provision of Services. Clouda shall provide the Services to the Client in accordance with the terms of this Agreement.

3.2. Provision of Services. Clouda shall provide the Services to the Client in accordance with the terms of this Agreement.

a) will be in writing, signed by Clouda and the Client and will attach and incorporate by reference the Standard Terms and Conditions;
b) will be attached as Schedule “B” to this Agreement. In the event there is more than one SOW, unless language indicates to the contrary, each additional SOW will be appended to and form part of Schedule “B” and will be consecutively numbered as follows: If there is one SOW, it will be called Schedule “B” or Schedule “B-1”. If there is more than one SOW, the first will be called Schedule “B” or Schedule “B-1”, the second will be called Schedule “B-2” and each additional SOW shall be consecutively numbered;
c) will identify the nature and scope of the Services;
d) will set forth the cost, estimated cost, or budget of the Services; and
e) may set out further particulars as to the provision of the Services including, without limitation:
f) any changes to the Standard Terms and Conditions;
g) the estimated: start date, end date, and duration for the provision of Services;
h) an allocation of the budget to specific projects or Deliverables within the provision of the Services; and
i) any terms in respect of warranty, follow-up, training, or troubleshooting.

3.3. Location and Travel. Unless otherwise set out in any SOW(s):

a) Clouda may, at Clouda’s sole discretion, provide the Services remotely or on-site at the Client’s premises, or both; and
b) The Client shall reimburse Clouda for reasonable air travel and other business related expenses incurred by Clouda in performing the Services but only to the extent that the Client has expressly approved such expenses in writing in advance. In the event Clouda’s employees are required to travel for the provision of the Services, the Client shall provide a meal allowance in the amount of $75.00 per employee per day of travel. Reimbursement of such reimbursable expenses shall be made by the Client from time-to-time upon submission by Clouda of a statement itemizing the expenses incurred and (except for the meal allowances) such other satisfactory evidence requested by the Client acting reasonably. Except as otherwise notified by the Client, all reimbursement requests by Clouda shall be made within thirty (30) days of such expenses being incurred.

3.4. Subcontractors. Clouda’s may subcontract its wholly owned subsidiaries to perform the Services. Clouda shall be liable for the obligations, actions and omissions of its subcontractors to the same extent as if such obligations, functions, actions and omissions were performed directly by Clouda, and for purposes of this Agreement, all work performed by Clouda’s subcontractors shall be deemed work performed by Clouda. Clouda shall be Client’s sole point of contact regarding the Services, including with respect to payment.

4. Workflow and Access

4.1. Client’s Obligations. Successful completion of the Services depends on the full commitment and participation of the Client. Clouda’s performance of the Services is predicated on the following responsibilities being managed and fulfilled by the Client, at no charge to Clouda. The Client will:

a) Ensure that sufficient VTEX licenses are purchased;
b) Take reasonable steps to ensure that all Client personnel participating in the implementation of the Services are knowledgeable about the fundamentals of the Services being provided and not be contractors who are in a competitive industry with Clouda;
c) Appoint a representative to supervise and coordinate the Client’s performance of its obligations under this Agreement and on each SOW. The representative will coordinate with Clouda in a professional and prompt manner and will have the necessary expertise and authority to act on behalf of the Client;
d) Provide Clouda with access to the Client’s systems, data, and documentation, as may reasonably be required by Clouda to facilitate the provision of the Services;
e) Be responsible for the content of any database, the selection and implementation of controls on access and use, backup and recovery, and security of stored data, including implementing any procedures necessary to safeguard the integrity and security of software and data accessed by Clouda in the provision of the Services;
f) Provide Clouda with access to necessary personnel, as may reasonably be required by Clouda;
g) Provide appropriate direction, as requested by Clouda; and
h) Perform appropriate and timely testing as reasonably required by Clouda.

4.2. Clouda’s Obligations. Clouda will provide the Services and Deliverables to the Client in accordance with high industry standards. Clouda will determine the methods, details, and means of performing the Services, except as may be specifically identified in a particular SOW. Clouda will use reasonable efforts to perform the Services and provide the Deliverables by the dates set out in each SOW.

4.3. Client Delays. In the event of any delays in the provision of the Services or the Deliverables or any part thereof that are attributable to the Client (“Client Delays”), Clouda may:

a) invoice the Client for Fees for Services provided to the Client to the date of such Client Delays;
b) change its resource team allocated to the Services in order to meet its own business demands, provided that Clouda will provide qualified individuals who are capable of continuing the Services in accordance with the specifications; and
c) require further changes and delays to the timeline for the provision of the Services, in order to redeploy Clouda’s resources, and the Client agrees that such further delays shall not constitute a default by Clouda.

5. Payment Terms

5.1. Terms of Payment. The Client will pay all Fees in accordance with the payment terms as set out in the Terms and Conditions or the applicable Statement(s) of Work. Unless otherwise provided in the relevant SOW, Clouda will invoice the Client periodically and the Client will pay the Fees in respect of such invoice within thirty days of the date of such invoice. All invoices are deemed accepted by the Client within five Business Days after they have been delivered to the Client. All amounts owing on account of past due invoices will incur interest at a rate of 1.5% per month, calculated monthly (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), until such time as they are paid in full. Client shall be responsible for legal fees incurred by Clouda for the collection of any unpaid invoices.

5.2. Fees. Fees for the Services and Deliverables shall be specified, or calculable in the applicable Statement(s) of Work or, if not in such Statement(s) of Work, in a rate sheet to be attached to this Agreement, which will be incorporated into the applicable SOW. Any changes to Fees or rates shall be specified in writing and must be agreed to by both parties, in advance, and, once approved, shall constitute a Change Order.

5.3. Technology Fee. Clouda leverages its industry knowledge, relationships and partnerships to take advantage of applications and technology to significantly improve the quality and efficiency of the Services. Such applications and technology will be used to support tasks such as deployment, release management, communication, and data management. Fees for the Services will be subject to a 2.0% Technology Fee to cover such aforementioned costs and will be separately itemized on any invoices.

6. Changes

In the event either Clouda or the Client requires a material change to the scope of work, the timeline, the Services, the Deliverables, or the Fees, the party requesting such change shall communicate such change to the other party, in writing, and will provide the other party with a reasonable opportunity to assess the impact of such changes. If the parties agree to such changes, such acceptance will be evidenced in writing by way of a mutually executed change order which will be incorporated into this Agreement. Neither party will be required to agree to any changes that materially change the Services or have a material impact on the business of the party.

7. Deployment and Acceptance

7.1. Deployment. For each SOW, to the extent deployment of Deliverables is required, Clouda and the Client shall set a mutually agreeable deployment schedule in accordance with the following:

b) Clouda and the Client shall use reasonable efforts to set a deployment schedule: (i) at the commencement of the Services; or (ii) if Clouda and the Client are unable to set a deployment schedule at the commencement of the Services, at least one month in advance of its anticipated deployment date; or (iii) in all other cases, on such other date as Clouda may decide, provided that Clouda will consult with the Client when setting a deployment schedule and will take into account the Client’s desired dates; and
c) In the event the Client requires a change to the deployment schedule, the Client shall notify Clouda no later than 15 days prior to the scheduled deployment date, failing which the Client shall be responsible for the Fees for deployment (or in the case of a “Fixed Fee” SOW, a reasonable estimate of the Fees attributed to the deployment by Clouda) as though Clouda had performed the deployment on the scheduled deployment date, in addition to the Fees as may be required for redeployment.

7.2. Acceptance. Unless otherwise set out in each SOW, the Client’s acceptance of the Services and the Deliverables shall be deemed to occur at the time Clouda has, in its reasonable opinion, completed the Services and notified the Client that it has completed the Services or provided the Deliverables (as applicable) unless: (a) the Client has commercially reasonable grounds for rejecting the Services or Deliverables, on the basis that such Services or Deliverables do not materially conform with the requirements set out in the relevant SOW; and (b) the Client provides written notification (the “Client Notice”) to Clouda of such rejection within thirty days of when Clouda has notified the Client that it has, in its reasonable opinion, completed the Services or provided the Deliverables (as applicable); and (c) any such Client Notice contains a list of deficiencies with sufficient details to permit Clouda to remedy such deficiencies. Upon receipt of such Client Notice, Clouda shall have a reasonable period of time to remedy such deficiencies, taking into account the significance of such deficiencies relative to the scope of the Services and / or Deliverables.

8. Limitation of Liability

8.1. Clouda’s core business is implementing and customizing third party cloud software (including VTEX’s software), developed by third parties (“Third Party Developers”). The Client acknowledges and agrees that Clouda is not such Third Party Developers and is not an Affiliate of such Third Party Developers and that Clouda makes no representations or warranties regarding Third Party Developers or their software, to anyone, express, implied or statutory (including warranties of design, operation, or fitness for any use or purpose). No representation or warranty by such Third Party Developers is binding on Clouda nor shall breach of such warranty relieve the Client of its obligations to Clouda. Third Party Developers may require the Client to enter into license agreements or pay license fees for the use of their software which, unless expressly set out herein or in a SOW, are not included in the Fees. There may be circumstances whereby Third Party Developers make changes to the software upon which the Services or Deliverables are based (“Third Party Software Changes”). Except as expressly set out in a SOW, Clouda will not be responsible for any fixes, patches, or replacement code that may be required for the Deliverables to function properly as a result of such Third Party Software Changes.

8.2. Neither party shall be liable to the other for any incidental, special, indirect, consequential or punitive damages of any character, including without limitation, damages for loss of business or goodwill, work stoppage, loss of information or data, or loss of revenue or profit, resulting from the provision of the Services or the use by the Client of the Deliverables or the reliance upon the Deliverables, or other financial loss arising out of or in connection with the Services or the Deliverables, regardless of the legal theory asserted, whether based on breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise. Even if Clouda has been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose, Clouda’s aggregate and total liability under this Agreement for any and all claims arising out of this Agreement shall be limited to direct damages and shall not exceed amounts paid or due by the Client to Clouda’s under this Agreement in the year in which the claim arose. Damages set forth in this Section 8.2 are the parties’ sole exclusive monetary remedy and the sole and exclusive alternative remedy in the event any other remedy fails of its essential purpose.

9. Intellectual Property

9.1. All Intellectual Property contained in the Deliverables or made available or disclosed to the Client, as part of the Services under any SOW or otherwise or that is contained in past deliverables or services provided by Clouda to the Client (collectively, “Clouda Intellectual Property”), and all Intellectual Property Rights in Clouda Intellectual Property are and shall remain the sole and exclusive property of Clouda and except for the license to use the Clouda Intellectual Property pursuant to section 9.2 of these Standard Terms and Conditions, the Client is granted no right, title, or interest in the Clouda Intellectual Property.

9.2. Clouda grants to the Client a worldwide, perpetual, non-exclusive royalty free license (the “License”) to use the Clouda Intellectual Property solely for the Client’s internal purposes as part of the Deliverables or as part of any systems implemented by Clouda in the provision of the Services. Other than the License, no ownership or license in any Clouda Intellectual Property shall be granted to the Client and, for greater certainty, but without limitation, the Client shall not be granted any rights to license, sub-license, sell, assign, transfer, or grant the Clouda Intellectual Property to any third parties without the prior express written consent of Clouda.

9.3.All Intellectual Property that was owned by or developed by or acquired by the Client or its Affiliates separate from this Agreement and without any use of the Services, Deliverables, or the Clouda Intellectual Property (collectively, “Client Intellectual Property”) shall remain the exclusive property of the Client. No rights of any kind shall be granted to Clouda in the Client Intellectual Property or any Confidential Information belonging to the Client.

10. Confidential Information Add Your Heading Text Here

10.1. For the purposes of this Agreement, “Confidential Information” means any information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in the course of Clouda providing the Services to the Client and that a reasonable person would consider to be confidential in the circumstances. Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, the terms of each SOW, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information: (a) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (b) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Confidential Information; (c) is or becomes publicly available without breach of any obligation of confidence; (d) is acquired by the Receiving Party from a third party who provided the information without breaching any express or implied obligations or duties to the Disclosing Party; or (e) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.

10.2. Each of Clouda and the Client agree with the other that it shall:

a) take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information;
b) not copy the Confidential Information except as may reasonably be required by Clouda in the provision of the Services;
c) not use the Confidential Information for its own purposes;
d) safeguard all documents containing Confidential Information against theft, damage or access by unauthorized persons;
e) use the same degree of care with respect to the Confidential Information as it employs with respect to its own proprietary or confidential information of like importance; and
f) except as required by law or a valid court order, and subject to the Receiving Party informing the Disclosing Party of such legal requirement, the Receiving Party will only disclose such Confidential Information to those directors, officers, employees or agents (“Receiving Parties’ Personnel”) who need to know in order to perform their obligations under this Agreement. The Receiving Party will ensure that the Receiving Parties’ Personnel who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information on terms no less stringent than the terms of these herein confidentiality provisions.

10.3. Unless otherwise expressly set out, Clouda may use the name, logo, and identifying description of the Client in its list of customers and Clouda may generally make known the relationship between Clouda and the Client, provided that Clouda does not disclose any Confidential Information or proprietary details of the Services. In the event the Client has brand guidelines and notifies Clouda of those brand guidelines, Clouda will only use the Client’s name and logo in accordance with the Client’s brand guidelines.

11. Term and Termination

11.1. Either party may immediately terminate the provision of the Services if the other party:

a) is in breach of its confidentiality obligations under this Agreement;
b) is or becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver, administrator or manager appointed, makes an assignment for the benefit of creditors or takes the benefit of any applicable law
c) is in material breach of this Agreement (including, without limitation, failure to pay the Fees) and such breach has not been cured within thirty (30) days of the provision of notice of such breach to the breaching party.

11.2. Upon termination of the Services under this Agreement, each party will immediately, upon written request from the other party, return to the other party or destroy all Confidential Information of the other party in its possession or control.

11.3 The covenants contained in this Agreement under parts 5, 7, 8, 9, 10, and this part shall survive the termination of the provision of the Services and the Client hereby acknowledges and agrees that the provisions of and all restrictions contained in this Agreement are reasonable and are necessary for the protection of the parties’ legitimate interests and proprietary rights and are an essential condition of this Agreement.

12. Non-Solicitation

During the term of this Agreement, and for a period of twelve (12) months after completion of the Services thereunder, neither party will, without the prior written consent of the other party, directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity, approach, solicit or attempt to solicit the employment of any employee of the other party who has been employed by the other party at any time on or after the Effective Date. For greater certainty, an employee of a party responding to a general advertisement for an employment position shall not, in and of itself, constitute a breach of this section. In the event of a breach of this section, the breaching party acknowledges and agrees that monetary damages may not be an adequate remedy to compensate for such breach and accordingly that, in addition to any and all other remedies available under this Agreement or at law or in equity, the non-breaching party shall be entitled to seek relief by way of a temporary or permanent injunction to enforce such obligations.

13. Force Majeure

Neither party to this Agreement shall be liable for any failure to comply with its obligations under this Agreement if the failure to comply is caused by or results from conditions or causes beyond its reasonable control including, but not limited to: shortage of water, power, facilities, materials and supplies, breakdowns in or the loss of production, acts of God, war, terrorism, mobilization, strikes, lockouts, labour controversies, riots, fire, flood, explosion, governmental controls or regulations, embargoes, wrecks or delays in transportation, labour disputes, civil insurrection, civil or military authority, inability to obtain necessary labour, materials of manufacturing faculties due to such causes or delays of subcontractors or supplies of each party in furnishing materials or supplies due to one or more of the foregoing causes. In an event of a force majeure, each party shall be allowed a reasonable period of time to fulfill the obligations under this Agreement having regard to the applicable circumstances.

14. General

14.1. Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement. The term “this part” when used herein shall mean the entire part, including sections and subsections within that part, unless inconsistent with the context of such use.

14.2 Currency. Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in U.S. currency.

14.3. Relationship of the Parties. The parties are independent contractors. This Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of this Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in this Agreement.

14.4. Gender, Plural and Singular. In this Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of this Agreement may be made accordingly as the context requires.

14.5. Alterations. No alteration or amendment to this Agreement shall take effect unless it is in writing duly executed by each of the parties.

14.6. Proper Law of Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the laws of the United States of America applicable therein, and the parties agree to attorn to the exclusive jurisdiction of the State of California.

14.7. Invalidity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision and any such invalid or unenforceable provision shall be deemed to be severable.

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14.10. 10 No Strict Construction. The language in all parts of this Agreement shall in all cases be construed as a whole and neither strictly for not strictly against any of the parties to this Agreement.

14.11. Assignment. Except with written consent of the other party, neither party may assign any of their respective benefits, obligations or liabilities under or in respect of this Agreement, provided, however that: (a) Clouda may assign this Agreement to an Affiliate of Clouda, at its sole discretion; and (b) either party may assign this Agreement, in its entirety, in the event of sale of all or substantially all of its assets or a merger or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder

14.12. Enurement. This Agreement shall enure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of this Agreement, their respective heirs, executors, administrators, successors and permitted assigns.

14.13. Counterparts. This Agreement may be signed by the parties in as many counterparts as may be necessary, each of which so signed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile or electronic mail. An executed copy of this Agreement delivered by facsimile or electronic mail will constitute valid execution and delivery.

Last updated : April, 2020