SILVERCLOUD, INC. MASTER SERVICES AGREEMENT

This Master Services Agreement (“Master Agreement”) is made and entered into as of the ___ day of __________, 201__, by and between SILVERCLOUD, INC. (“SilverCloud”), a Delaware corporation with an address of 135 Commerce Way, 3rd Floor, Portsmouth, New Hampshire 03801 and [CLIENT NAME] (“Client”) a [STATE, ENTITY] with offices at ____________________________, both together “Parties” and separately a “Party”.

 

RECITAL

This Master Agreement, when signed by the Parties and combined with one or more Order Forms (as later defined) specifically referencing this Master Agreement and also signed by Client and signed and accepted by SilverCloud (all such Order Forms being incorporated by this reference), creates various obligations between the Parties with respect to software products and/or related professional services, all as hereafter and therein set forth.

DEFINITIONS

Agreement” means this Master Agreement and all Order Forms entered into by the Parties.

Authorized Business Purposes” means Client’s exercise of the license granted by this Agreement in support of Client’s business to (i) make the Software’s functionality available to its employees, contractors and agents and (ii) make the Software’s functionality available without charge to its Customers through the channels specified in the Order Forms (such as Client’s website, Facebook page, mobile applications and/or intranet).

Client Content” means questions and answers, written materials, links, logos, graphic images, information, data, photography, videography, and other content provided by or on behalf of Client.

Client Data” means information submitted by or entered by a Client Representative into the Software.

Client Representative” means a named individual who is an employee, consultant, contractor or agent of Client and who is authorized to use the Software and who has been supplied user identifications and passwords by Client (or by SilverCloud at Client’s request).

Customer” means any person that is a customer of Client and who has been authorized by Client to access the functionality provided by the Software in accordance with the Authorized Business Purposes.

Customer Data” means information submitted by or entered by a Customer into the Software.

Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

Order Form” means the ordering documents that specifically reference this Master Agreement and describe the Subscriptions Client is subscribing for (including but not limited to SilverCloud’s proposal or engagement agreement) and any terms and conditions, attachments, exhibits or addenda thereto, that are entered into between the Parties from time to time.

Services” means all Software maintenance, support, consulting, Content refresh, Content maintenance, integration, hosting and other services SilverCloud agrees to provide to Client under an Order Form.

Software” means the SilverCloud software made available to Client under an Order Form, including all associated documentation, which Software shall be hosted by SilverCloud and provided on a remote access basis over the Internet via designated websites.

Subscriptions” means subscriptions to Software and Services for the stated period of time and pricing terms set forth in the Order Form.

SOFTWARE AND SERVICES (Section 2)

2.1. Provision of Software and Services.  SilverCloud shall make the Software and Services available to Client pursuant to this Agreement during the term stated in the applicable Order Form.  Client agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by SilverCloud regarding future functionality or features.

2.2. Use of Software.  SilverCloud hereby grants to Client, subject to the terms and conditions of this Agreement (and expressly conditioned upon payment in full of all applicable fees therefor), a non-exclusive, non-transferable, non-sublicensable, limited term license, during the Subscription term, to use the Software, on a remote access, hosted basis via the Internet.  Client may only use the Software for Authorized Business Purposes.  For the avoidance of doubt, except as permitted above as part of its Authorized Business Purposes, Client shall have no right to sell, lease, rent, distribute, publicly display or otherwise exploit the Software unless otherwise specifically authorized by SilverCloud in writing.  Notwithstanding any provision to the contrary in this Agreement, the Software is licensed, not sold, to Client as provided above.

2.3.  Security.  SilverCloud uses commercially reasonable practices including encryption and firewalls to ensure that Client Data and Customer Data is disclosed only to Client and Client Representatives.  Client acknowledges that SilverCloud has provided to Client the written materials set forth on Exhibit 2.3 hereto (such materials, the “Systems Materials”) which contain, among other things, a reasonable description of SilverCloud’s current knowledge management system, information regarding SilverCloud’s current controls relevant to security, availability and confidentiality, and information regarding SilverCloud’s current practices and procedures relating to information in its possession or control.  Notwithstanding anything to the contrary herein or in the Systems Materials, the parties acknowledge that the Internet is an open system, and SilverCloud cannot and does not warrant or guarantee that third parties cannot or will not intercept, access or modify Client Data or Customer Data.  SilverCloud’s current Standard Security Terms and Conditions are set forth on Exhibit 2 hereto, which is incorporated herein by reference.  SilverCloud’s knowledge management system, controls, practices and procedures, as well as its Standard Security Terms and Conditions, may change during the term as deemed necessary or convenient by SilverCloud; to the extent that such changes result in SilverCloud’s practices becoming less protective in all material respects than those described in the Systems Materials, or the terms of the Standard Security Terms and Conditions becoming less protective in all material respects than those set forth in Exhibit 2 hereto, then Client may terminate this Agreement by written notice to SilverCloud within thirty (30) days of notice to Client of such changes.

2.4  Content.  If  Content conversion, loading and/or maintenance services are included in the Order Form, Client must deliver Content in electronic/digital format.  Content maintenance service does not include creating special Content for Client mergers or acquisitions, core conversions or other special events.

2.5  Travel.  There is no separate cost for site visits up to the number of site visits, if any, set forth on the SilverCloud Work Order.  If the number of site visits exceeds the amount specified on such Work Order, then all additional visits will (i) need to be approved in advance by Client, and (ii) be at the cost of Client, to be charged at SilverCloud’s standard rates, plus the cost of travel.

RESPONSIBILITIES (Section 3)

3.1 SilverCloud’s Responsibilities.  SilverCloud shall provide Client with support for the Software in accordance with SilverCloud’s standard support procedures at no additional charge.  SilverCloud’s current standard support procedures and service level commitment are set forth in Exhibit 1 hereto, and may be updated from time to time by notice from SilverCloud to Client.  SilverCloud shall also provide the additional Services if any, set forth in the applicable Order Form.

3.2. Client’s Responsibilities. The Client is responsible for all activities conducted by Client, the Client Representatives and its other agents.  At all times during the term, the Client shall have in place a privacy policy and an acceptable use policy that are readily accessible to the Client Representatives and Customers from its website or within its service or application (as applicable), and that fully and accurately disclose to such persons what information is collected by the Software and the Services, and how it may be used by Client and its contractors, including SilverCloud.  The Software may include, or SilverCloud may provide as part of the Services, sample or draft Content.  Client understands and agrees that all Content contained in the Software or furnished by SilverCloud may not be appropriate for Client’s purposes, and that Client shall be solely responsible for reviewing and modifying such Content and/or developing its own Content to ensure that information provided by the Software accurately and completely reflects Client’s business practices.  SilverCloud shall have no responsibility for the accuracy or completeness of any Content or any modifications to such Content made by Client or Client Representatives, nor for the accuracy of any Customer Data submitted to it.  In addition, Client shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify SilverCloud promptly of any such unauthorized access or use, (ii) abide by all applicable law and government regulations regarding the collection, storage, and security of information, including without limitation all Customer Data, and (iii) use the Software and Services only in accordance with applicable laws and government regulations.  Client shall not, and shall not permit any of its Customers to, (a) use the Software or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (b) use the Software or Services to store or transmit Malicious Code, (c) interfere with or disrupt the integrity or performance of the Software or Services or data contained therein, (d) attempt to gain unauthorized access to the Software or Services or their related systems or networks or (e) access the Software or Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

3.3 Passwords.  Client is responsible for maintaining the confidentiality of passwords and Client agrees that SilverCloud has no liability with regard to the use of such passwords by Client, Client Representatives, Customers or any third parties.  Client agrees to notify SilverCloud immediately if Client has any reason to believe that the security of Client’s account has been compromised.

3.4 Accessibility Requirements.  While SilverCloud integrations fully support the relevant accessibility requirements of Section 508 of the Americans with Disabilities Act, SilverCloud is not responsible for the conformance to such requirements of Client’s website, intranet or any other platform with which the Software is integrated.  Such platforms, as well as all Content entered into the Software for display, are the sole responsibility of Client and SilverCloud shall have no liability therefor.

FEES AND PAYMENT TERMS (Section 4)

4.1. Fees.  Client shall pay all fees specified in the Order Forms.  Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on Software and Services ordered, and (iii) payment obligations are non-cancelable and fees paid are non-refundable during the relevant Subscription term stated on the Order Form.

4.2. Invoicing and Payment.  SilverCloud will invoice Client upon execution of an Order Form and on or prior to the first day of the beginning of a next Subscription renewal term and otherwise in accordance with the relevant Order Form.  Unless otherwise stated in the Order Form, charges are due fifteen (15) days following the date of the invoice.  Client is responsible for maintaining complete and accurate billing and contact information with SilverCloud.

4.3. Overdue Charges.  If any charges under any Order Forms are not received from Client within 15 days of the due date, then at SilverCloud’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) SilverCloud may condition future term renewals and Order Forms on payment in advance.

4.4. Suspension of Service and Acceleration. If any amount owing by Client under this or any other agreement for SilverCloud’s products or services is 15 or more days overdue, SilverCloud may, without limiting its other rights and remedies, until such amounts are paid in full, suspend Client’s use of the Software and Services and/or accelerate Client’s unpaid fee obligations under such agreements so that all such obligations for the duration of the then current term under the applicable Order Form(s) become immediately due and payable.

4.5. Payment Disputes.  SilverCloud shall not exercise its rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and Client is cooperating diligently to resolve the dispute.

4.6. Taxes. Unless otherwise stated, Software and Service fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”).  Client is responsible for paying all Taxes associated with its purchases hereunder. If SilverCloud has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client, unless Client provides a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, SilverCloud is solely responsible for taxes assessable based on its income, property and employees.

PROPRIETARY RIGHTS (Section 5)

5.1. Reservation of Rights.  Subject to the limited rights expressly granted hereunder, SilverCloud reserves all right, title and interest in and to the Services and Software, including all related intellectual property rights.  No rights are granted to Client hereunder other than as expressly set forth herein.

5.2. Restrictions.  Client shall not (i) permit any third party, including any Customer, to access the Software or Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Software or Services, (iii) copy, frame or mirror any part or content of the Software or Services, other than copying or framing the query window function of the Software for Authorized Business Purposes, (iv) modify, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Software, or (v) access the Software or Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Software or Services.

5.3. Nonpublic Personal Information; Client and Customer Data.  To the extent contemplated by an Order Form, Client or its Customers may enter “nonpublic personal information” (as defined in the Gramm-Leach-Bliley Act)(all such information, “NPI”), into the Software.  SilverCloud does not guarantee the accuracy, integrity or quality of any such NPI or other Client Data or Customer Data, for which Client is solely responsible.  Subject to Section 5.4 below, as between SilverCloud and Client, all right, title and interest in all Client Data and Customer Data is retained by Client; Client hereby grants to SilverCloud, for the term of this Agreement, a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.9 below), royalty-free right to use, display, transmit, and distribute the Client Data and Customer Data as necessary to provide the Software and Services as contemplated herein.

5.4  Anonymized Aggregated Information.  Client understands and agrees that SilverCloud may use information (“Anonymized Aggregated Information”) derived from information that Client, Client Representatives and Customers enter into the Software, as well as data regarding their use of the Software and Services, for internal and marketing purposes, including without limitation developing and enhancing the Software and Services, provided that all such information has been first both aggregated with information and data of other SilverCloud clients and customers and completely anonymized such that neither Client nor its Customers can be directly or indirectly identified.  Such Anonymized Aggregated Information shall not be considered “Confidential Information,” “Content,” “Client Data”, “Customer Content” or “Customer Data” for purposes of this Agreement.

5.5. Suggestions. SilverCloud encourages users to provide feedback regarding the Software and Services so that it may continue to enhance them over time.  If Client provides any suggestions, enhancement requests, recommendations or other feedback relating to the Software or Services, including features, functionality and user interfaces, SilverCloud shall have, and Client hereby grants, a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, make, reproduce, copy, sell, lease, rent, distribute, publicly display or perform, make derivative works of, incorporate into the Software or Services, or otherwise exploit such suggestions, requests, recommendations and feedback.

CONFIDENTIALITY; PUBLICITY (Section 6)

6.1. Applicability of Confidentiality Provisions.  The provisions of this Article 6 apply to all Confidential Information disclosed by a Party to another Party at any time during the term hereof.  In the event that the Parties have entered into a separate mutual confidentiality or non-disclosure agreement(s) at any time, whether relating to specific information or otherwise, the provisions of this Article 6 and such other agreement(s) shall each apply to any information that is subject to each agreement pursuant to its terms; to the extent of any conflict between the terms of this Article 6 and the terms of such other agreement(s), the terms which are determined to be most protective of the information disclosed by the Disclosing Party shall govern.

6.2. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Client’s Confidential Information shall include its customer lists and other information related to specific customers or potential customers; SilverCloud’s Confidential Information shall include the Software and Services, and all Order Forms; and Confidential Information of each Party shall include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party.  However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.

6.3. Protection of Confidential Information.  Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

6.4. Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

6.5  Ownership of Content and Client Data.  All Content, Client Data, and Customer Data, in whatever form, provided by Client to SilverCloud shall remain the property of Client, may be used by SilverCloud only for the limited purpose of providing the Services under this Agreement, and shall not be disclosed to any third party without Client’s prior written consent, except as deemed necessary to the provision of the Software and the Services.  SilverCloud shall return to Client or permanently destroy, at no additional cost to Client, all Client Content, Client Data, and Customer Data held by SilverCloud upon Client’s written request without retaining any copies, and, if requested by Client, shall certify that Client Content and Client Data have been so returned to Client or destroyed.  Client shall be solely responsible for any inability of SilverCloud to render the Services or provide the Software resulting from any request by Client pursuant to this Section 6.5.

6.6. Publicity.  Subject to the provisions of Section 6.7 below, all media releases, public announcements and public disclosures by either Party or its employees or agents relating to this Agreement or its subject matter that explicitly reference the other Party, including without limitation promotional or marketing material, but not including any announcement intended solely for internal distribution or any disclosure required by legal, accounting, or regulatory requirements, shall be coordinated with and approved by the other Party in writing prior to the release thereof.  Notwithstanding the above, each Party agrees that the other may disclose, without approval, the existence of a business relationship between the Parties and may include the Party’s name and logo on lists of parties with whom the other Party is conducting business.

6.7 Marketing.

    • Social Media Authorization (Tagging): The Client hereby authorizes SilverCloud to promote the Client’s business name and website online in Facebook, Twitter, LinkedIn and other social media outlets held by SilverCloud.  The Client represents and warrants to SilverCloud that Client owns or has license to use in the manner contemplated by this Agreement all copyrights, trademarks, trade dress, service marks, brand names or other intellectual or artistic property associated with the Content.
    • Marketing Support: Client agrees to provide the following cooperation to support SilverCloud’s marketing efforts: a) Mutually agreed upon press release upon contract signing, with such release containing a quote from a Client senior executive;   b) Responding to prospective SilverCloud customer reference calls as may be reasonably requested in advance by SilverCloud through Client’s designated contact;  c) Inclusion of Client’s name and logo on SilverCloud’s website and in SilverCloud’s marketing materials; and d) Input and review of a Return on Investment (ROI) case study as written by SilverCloud.
    • Attribution: Client will permit the display of a SilverCloud link at the bottom of the “search results” page and the “submit a question” page.

 

WARRANTIES AND DISCLAIMERS (Section 7)

7.1. SilverCloud’s Warranties.

    • Warranty Regarding Function: SilverCloud warrants that, during the Subscription term of the Software for which payment was received by it, the Software will function substantially in accordance with the documentation furnished by SilverCloud. If the Software does not perform as warranted, SilverCloud shall undertake to correct the Software, or if correction of the Software is reasonably not possible or commercially practicable, shall terminate the Subscription for such Software and refund a pro-rated portion of the Subscription fee paid by Client hereunder as Client’s exclusive remedy.
    • Warranty Regarding Services: SilverCloud warrants that all Services will be performed in a professional and workmanlike manner by staff with commercially reasonable experience. If the Services are not provided as warranted, SilverCloud shall re-perform the deficient Services without charge to Client as Client’s exclusive remedy.
    • Warranty Regarding Intellectual Property:   SilverCloud warrants that it has full right and title to the Software licensed or provided to Client, free of claims of infringement.  If any Software provided to Client is subject to a claim of infringement, Client’s exclusive remedy shall be as set forth in Section 8.1.
    • Additional Warranties: SilverCloud may also provide Client with additional warranties as explicitly set forth in an Order Form (such additional warranties, the “Additional Warranties”).  Any such Additional Warranties shall only entitle Client to the specific remedies set forth in the applicable Order Form, and are subject to this Master Agreement, including without limitation all the limitations set forth herein.

7.2. Limitations on Warranties. The remedies set forth in Sections 7.1(a-d) above are Client’s sole and exclusive remedies for breach of the corresponding warranties.  The warranties set forth in Sections 7.1(a-d) (all such warranties, “SilverCloud’s Warranties”), including any Additional Warranties, are made to Client and for its benefit only and will be enforceable against SilverCloud only if: (i) the Software has been used at all times in accordance with the instructions for use; (ii) neither Client nor any third party has made or caused to be made changes to the Software; and (iii) any non-conformities in the Software as compared with SilverCloud’s documentation are not caused by Client’s or any third party’s products and/or services.  None of SilverCloud’s Warranties, and no Additional Warranty, shall be enlarged, diminished or affected by, and no obligation or liability will arise out of, the rendering of technical assistance or other advice or service by SilverCloud in connection with the Software.  SilverCloud shall not be responsible for temporary losses of hosted Software functionality due to maintenance work.  Client will be solely responsible for any damage to or inability to use the Software caused by its actions or the actions of third parties, such as changes to Client’s website that affect its interaction with the Software.  In the event Client requests assistance from SilverCloud in addressing matters not covered by the foregoing warranty, Client will pay SilverCloud’s standard rates for such assistance.

7.3. Mutual Warranties.  Each Party represents and warrants that (i) it has the legal power to enter into this Agreement; and (ii) it will not transmit to the other Party any Malicious Code (except for Malicious Code previously transmitted to the warranting Party by the other Party).
7.4. Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

MUTUAL INDEMNIFICATION (Section 8)

8.1. Indemnification by SilverCloud.  SilverCloud shall defend Client against any claim, demand, suit, or proceeding (“Claim”) made or brought against Client by a third party alleging that use of the Software or Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Client for any damages finally awarded against, or amounts payable in settlement by, Client in connection with any such Claim; provided, that Client (a) promptly gives SilverCloud written notice of the Claim; (b) gives SilverCloud sole control of the defense and settlement of the Claim (provided that SilverCloud may not settle any Claim without Client’s consent unless the settlement unconditionally releases Client of all liability); and (c) provides to SilverCloud all reasonable assistance, with out-of-pocket costs to be borne by SilverCloud.

8.2. Indemnification by Client.  Client shall defend SilverCloud against any Claim made or brought against SilverCloud by a third party based upon or arising out of Client’s use of the Software or Services in its business, except for the circumstances set forth in Section 8.1 (Indemnification by SilverCloud), or based upon SilverCloud’s compliance with any written request made by Client pursuant to Section 6.5 above, and shall indemnify SilverCloud for any damages finally awarded against, or amounts paid in settlement by, it in connection with any such Claim; provided that SilverCloud (a) promptly gives Client written notice of the Claim; (b) gives Client sole control of the defense and settlement of the Claim (provided that Client may not settle any Claim without SilverCloud’s consent unless the settlement unconditionally releases SilverCloud of all liability); and (c) provides to Client all reasonable assistance, with out-of-pocket costs to be borne by Client.

8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section.

LIMITATION OF LIABILITY (Section 9)

9.1. Limitation of Liability. IN NO EVENT SHALL SILVERCLOUD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CLIENT UNDER THIS AGREEMENT OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY CLIENT UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT.  THE FOREGOING SHALL NOT LIMIT SILVERCLOUD’S OBLIGATIONS UNDER SECTION 8.1 ABOVE (INDEMNIFICATION BY SILVERCLOUD).

9.2. Exclusion of Consequential and Related Damages.  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  The parties hereto agree that all damages actually paid by a Party to a third party arising out of a final award against such Party shall constitute direct damages for purposes of this Section 9.2, regardless of how such damages may be characterized in such final award against such Party.

9.3. Limitations; Exceptions.  The provisions of this Master Agreement allocate risks between the Parties; the pricing and other terms set forth in each Order Form reflects this allocation of risk and the limitations on liability set forth herein.  The exclusion of damages set forth in Section 9.2 above shall not apply with respect to Client’s breach of any of Sections 3.2 or 5.2, or Article 6.

TERM AND TERMINATION (Section 10)

10.1. Term of Agreement. This Agreement commences on the date first written above and continues until the latest date on which the stated terms of Services or Subscriptions purchased by Client pursuant to all Order Forms have expired or been terminated.

10.2. Term of Purchased Subscriptions.  Subscriptions shall commence on the Subscription start date specified in the applicable Order Form and continue for the Subscription term specified therein.

10.3. Termination for Cause.  A Party may terminate this Agreement and/or the applicable Order Form for cause: (i) upon 30 days’ written notice to the other Party of a material breach of this Agreement or such Order Form if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  In addition, in the event that SilverCloud discontinues support of the Software, Client may terminate this Agreement and/or the applicable Order Form upon 30 days’ written notice to SilverCloud.

10.4. Payment upon Termination. Upon any termination of this Agreement or an Order Form for cause by SilverCloud, Client shall pay any unpaid fees covering the remainder of the term of the applicable Order Form(s) after the effective date of termination.  Upon termination of this Agreement or an Order Form by Client in accordance with Section 2.3 or Section 10.3 above, Client shall receive a refund of any prepaid fees for Subscription months that have not been used as of the date of termination, and shall have no obligation to pay any unpaid fees covering the remainder of the term of the applicable Order Form after the date of termination.  Upon termination by Client prior to the end of a Subscription term other than pursuant to Section 2.3 or Section 10.3, any prepaid fees shall be forfeited and (a) if Client has not implemented SilverCloud’s recommended best practices (as specified in the applicable Order Form) in SilverCloud’s sole determination, Client will pay for any additional months remaining under the current Subscription term beyond those that have been prepaid at the time of termination, at 50% of the applicable Subscription fee; or (b) if Client has implemented such best practices in SilverCloud’s sole determination, Client shall not be required to pay any further termination fees.  In no event shall any termination relieve Client of the obligation to pay any fees or other amounts payable to SilverCloud for the period prior to the effective date of termination.

10.5. Surviving Provisions. Section 4 (Fees and Payment Terms), 5 (Proprietary Rights), 6 (Confidentiality), 7.4 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.4 (Payment upon Termination) and 11 (General Provisions) shall survive any termination or expiration of this Agreement.

GENERAL PROVISIONS (Section 11)

11.1. Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth (5th) business day after mailing by certified or registered mail, postage and charges prepaid, return receipt requested, (iii) two (2) business days after being sent by overnight delivery providing receipt of delivery, or (iv) the first business day after sending by confirmed facsimile.  Notices shall be addressed to the Parties at their respective addresses set forth in the first paragraph of this Master Agreement or such other address as a Party may, by written notice to the other Party, designate.

11.2. Governing Law and Jurisdiction.  This Agreement will be governed by the laws of the State of New Hampshire, and any disputes arising out of or in connection with this Agreement, if not settled by mutual agreement, shall be resolved in a state or federal court of appropriate subject matter jurisdiction located in the State of New Hampshire.  Each Party agrees to such governing law without regard to choice of law or conflicts of law rules, and to the exclusive jurisdiction of such courts.

11.3. Export Compliance.  Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.  Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Client shall not permit users of the Software or Services to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

11.4. Relationship of the Parties.  The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

11.5. No Third-Party Beneficiaries.  Except for SilverCloud’s licensors, who shall be deemed third-party beneficiaries under this Agreement, there are no third-party beneficiaries to this Agreement.

11.6. Waiver and Cumulative Remedies.  No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

11.7. Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.  Client specifically agrees that the delivery of Software or Services under each Order Form, and such transactions as may be contemplated under any other agreement between the Parties, shall be the separate and distinct obligations of SilverCloud, and SilverCloud’s liability under each such instrument shall be limited as provided therein, and not added to or aggregated with its liability under any other agreement or instrument between the Parties.

11.8. Attorney Fees.  Client shall pay on demand all reasonable attorney fees and other costs incurred by SilverCloud to collect any fees or charges due it under this Agreement following Client’s breach of Section 4.2 (Invoicing and Payment).

11.9. Assignment.  Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld).  Notwithstanding the foregoing, SilverCloud may assign this Agreement in its entirety (together with all Order Forms), without Client’s consent, to SilverCloud’s successor-in-interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.  Notwithstanding anything to the contrary herein, SilverCloud may use independent contractors or subcontractors, such as Amazon Web Services, to assist in the delivery of the Software and the Services.

11.10. Entire Agreement. This Master Agreement and the applicable Order Forms (and related exhibits, addenda and agreements referenced herein and therein) relating to the Software and Services provided or to be provided by SilverCloud, constitute the entire agreement between the Parties relating to such Software and Services and supersede all prior and contemporaneous agreements, proposals, price sheets or representations, written or oral, concerning their subject matter.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted.  To the extent of any conflict or inconsistency between the provisions in the body of this Master Agreement and any Order Form, the terms of such Order Form shall prevail.  Notwithstanding any language to the contrary therein, no terms or conditions stated in Client’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

IN WITNESS WHEREOF, each Party has caused this Master Agreement to be executed by its duly authorized representative.

SILVERCLOUD, INC.[CLIENT]
By:                                                       By:                                                      
Name:                                                

 

Title:                                                  

Name:                                                

 

Title:                                                  

 

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Exhibit 1:

SilverCloud, Inc. Support Procedures and Service Level Commitment

Maintenance and Support.  As part of the Subscription Fee, Client will receive maintenance and support from SilverCloud relating to the Software.

    • Included support: SilverCloud provides a support site (knowledge base) that is available 24/7 to our Clients, as well as ongoing phone and email support between the hours of 8 am and 8 pm Eastern time during the normal business week. This support is in addition to any other contracted Services and is available as long as annual subscription fees are current.
    • Phone and email support includes: user questions, technical questions, upgrade training, Software bug submission and resolution. SilverCloud will make a reasonable amount of time available for user and technical questions.  Client understands that failure to provide accurate and detailed information regarding the need for support will increase the amount of time and effort required to diagnose any problem and develop a possible solution; Client will support SilverCloud, as necessary, in its investigation and support efforts.

Service Level Commitment

Scheduled Maintenance – If maintenance has been determined by SilverCloud to have a low risk of creating downtime, it may be performed during work hours; any system maintenance that has a high risk of incurring downtime (as determined by SilverCloud) will be performed as follows:

    • Software updates are typically deployed on Thursday mornings between 6AM and 8AM EST, but may be performed between 8PM and 8AM EST on any day as needed.
    • Infrastructure maintenance is generally performed between 8PM and 8AM EST on an as needed basis.

Scheduled maintenance is not counted towards downtime.

SilverCloud will use commercially reasonable efforts to make the Software Available (as defined below) at least 99% of the time in any calendar month during the Subscription term, excluding scheduled maintenance and any unavailability caused by circumstances beyond its reasonable control.

Failure to make the Software Available as described herein will be deemed an “Uptime Default”.   For purposes of this Agreement, “Available” means that Client Representatives and Customers are able to access and use the material features and functions of the Software, even if certain functionalities are degraded or unavailable.  Notwithstanding the foregoing, SilverCloud shall not be responsible for any availability issues, including any Uptime Default, resulting, in whole or in part, from circumstances beyond its reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, hacking or DDOS attacks, strikes or other labor problems, equipment failure, or failures or delays by Internet service providers or other contractors, subcontractors, suppliers or vendors.

In the event of issues with the availability of the Software, Client’s sole and exclusive remedy shall be to receive an additional free month added to Client’s Subscription (an “Uptime Credit”) as the result of an Uptime Default.  An Uptime Credit shall not be due unless Client requests the Uptime Credit in writing no later than 30 calendar days following the end of the calendar month in which the Uptime Default occurred.

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Exhibit 2:

Standard Security Terms and Conditions

These Standard Security Terms and Conditions (the “Terms and Conditions”) apply to, and supplement, the terms of the Master Agreement.  Terms capitalized but not defined in these Terms and Conditions have the same definition as in the main body of the Master Agreement.

    1. Compliance. SilverCloud will comply with, and its subcontractors will comply with, all of the provisions of these Terms and Conditions.  For purposes of these Terms and Conditions, “subcontractors” means all third parties providing services for or on behalf of SilverCloud relating to NPI in connection with the Agreement, including but not limited to data hosting centers.
    2. Protected Information. All information and data that constitutes NPI provided by Client and all persons using the Software or Services as Client’s Customers or prospective customers (such persons, the “Users”) is deemed to be “Protected Information.”  SilverCloud will undertake all commercially reasonable and appropriate steps to maintain the privacy and security of Protected Information, including compliance with all applicable Federal and state laws pertaining thereto.  Protected Information shall not include Anonymized Aggregated Data, as defined in Section 5.4 of the main body of the Agreement.
    3. General Protective Measures. SilverCloud will use the Protected Information only to perform SilverCloud’s obligations under the Agreement.  SilverCloud will maintain appropriate administrative, organizational, technical and physical safeguards designed to: (a) maintain the security and confidentiality of all Protected Information, (b) protect against any anticipated threats or hazards to the security or integrity of Protected Information; (c) protect against unauthorized access to or use of Protected Information that could result in substantial harm or substantial inconvenience to Client; (d) dispose of such Protected Information in a secure manner in accordance with appropriate industry standards, and (e) use commercially reasonable efforts to prevent unauthorized access to Protected Information.  SilverCloud will maintain and enforce administrative, organizational, physical and technical privacy and security measures and procedures required by applicable law, and all other commercially reasonable measures and procedures at least equal to industry standards for such types of Protected Information, with respect to possession, access, use, maintenance, disclosure and disposal of Protected Information, and to protect against accidental, unauthorized, and/or unlawful access, destruction, loss, alteration, damage, disclosure and/or use of such Protected Information, and in any event no less than required by applicable laws.

3.1       Notification and Remedial Actions.  Without limiting the generality of the provisions of Section 3 of these Terms and Conditions, SilverCloud will take commercially reasonable measures to secure and defend its locations, applications and equipment against third parties who may seek to modify or access the SilverCloud systems, including the Protected Information.  In accordance with applicable state and Federal laws, SilverCloud will monitor all systems and physical locations and track attacks if any and report as required.  SilverCloud will report to Client any breaches of security or unauthorized access to Protected Information that SilverCloud has confirmed following a reasonable investigation (any such breach or unauthorized access, an “Incident”) promptly, and in any event within one (1) business day following confirmation.  SilverCloud will use diligent efforts to remedy any such breach of security or unauthorized access in a timely manner and deliver to Client a root cause analysis and future incident mitigation plan with regard to any breach of security or unauthorized access affecting the Protected Information. SilverCloud will adhere to all applicable data breach reporting laws and any other applicable state and Federal laws, it being understood however, that if the obligation to notify affected third parties is imposed upon Client under applicable law, SilverCloud will not issue such notifications but will provide reasonable assistance to Client in connection with such notifications.  Notwithstanding anything to the contrary herein, SilverCloud is not strictly liable for any Incident that may occur, nor shall SilverCloud be liable for any release of information or unauthorized access that may occur except to the extent it arises from SilverCloud’s breach of the Agreement, including these Terms and Conditions.  SilverCloud does not warrant that the Software, the Services and the Protected Information stored through use of the Software and Services are not susceptible to intrusion, attack or computer virus infection.

Any notification by SilverCloud required pursuant to these Terms and Conditions may be delayed as requested or required by law enforcement to prevent any impediment(s) to its investigation of any incident.  SilverCloud will cooperate with law enforcement in accordance with applicable law, provided however, that such cooperation will not result in or cause an undue delay to remediation of any particular Incident except to the extent that SilverCloud reasonably believes that such delay is required to comply with SilverCloud’s obligations under law; in all cases, SilverCloud will use commercially reasonable efforts to mitigate the risk of undue delay at SilverCloud’s expense.  Unless legally prohibited from doing so, SilverCloud will provide Client with all data required by Client to satisfy any legal obligation it may have arising from any Incident, regardless of whether such Incident constitutes a breach of this Agreement.

3.2       Reimbursement.  In the event of an Incident, SilverCloud will: (a) restore the Protected Information to the extent reasonably practicable, and institute commercially reasonable measures to prevent any recurrence of the problem as soon as is commercially practicable, and (b) provide reasonable cooperation with regard to, and, provided that the Incident was due to a breach of the Agreement by SilverCloud, undertake as applicable, any notifications, remedial actions and the like required by law to be undertaken by SilverCloud.

  1. Encryption. SilverCloud will maintain current industry standards related to encryption for securing Protected Information in transmission and at rest, and will at all times comply with applicable law regarding the same.
  2. Locations. All Protected Information will be maintained at locations within the United States or Canada, on servers owned by SilverCloud or its subcontractors.  Such servers may contain information of other parties so long as appropriate security measures are taken to segregate and maintain the separateness and confidentiality of each party’s respective data and information.
  3. Destruction of Protected Information. SilverCloud will have in place industry standard measures to cause all Protected Information, in all forms (including electronic and paper) to be thoroughly and permanently destroyed as required under the Agreement and/or applicable law. Upon termination of the Agreement and at the written request of the Client, SilverCloud will return all originals and copies of Protected Information received from Client within ten (10) Business Days of the receipt of such request (and in any event within thirty (30) days of the effective date of the conclusion of the Agreement).  Notwithstanding anything to the contrary in the Agreement or these Terms and Conditions, in the event that Client wishes SilverCloud to return the Protected Information to Client (rather than to destroy it), SilverCloud may charge Client for the professional services involved to assist with such effort.
  4. Subcontractors. SilverCloud will require that all of its subcontractors undertake security and protective measures that are at least as thorough, protective and secure for Protected Information as those applicable to SilverCloud hereunder.
  5. For the avoidance of doubt, these Terms and Conditions are subject to the terms of the Master Agreement, including but not limited to the limitations set out in Article 9 thereof.

 

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