Service Level Agreement

1. Service and Support

1.1.   After the parties complete and execute the Order Form, Cloudwords will provide the Services to Customer in accordance with this Agreement. Customer may use the Services in accordance with this Agreement.

1.2   Cloudwords shall make the Services available to Customer for the Service Term as identified on any Order Form. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Cloudwords with respect to future functionality or features. 

2. Restrictions and Responsibilities

2.1   Customer will establish a username and password (or any other means reasonably required by Cloudwords) for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files. Customer will designate a Primary Contact. Customer may change the individual designated as Primary Contact at any time by providing written notice to Cloudwords. Customer is responsible for all activity that occurs in its Customer account and for its users’ compliance with this Agreement.

2.2   Customer will not, and will not permit any third party to: reverse engineer (except to the extent statutory law expressly prohibits or limits restrictions on reverse engineering, but only to the extent required by such statute), decompile, disassemble or otherwise attempt to discover the Software; modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal business purposes; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws) and intellectual property.

2.3   Customer shall not process or submit to the Service any Customer data that includes any (i) “protected health information,” as defined under HIPPA; (ii) “personal information” about individuals under the age of 13 as such term is defined under COPPA(iii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state-issued identification numbers; (iv) financial account information, including bank account numbers; (v) the combination of a username or email address along with a password or security question and answer that would permit access to an online account; (vi) financial account number or payment card data, including credit card or debit card numbers, and (vii) “special categories” of personal data as defined under EU Privacy Law, about residents of Switzerland and any member country of the European Union, including personal data revealing racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, sexual orientation, genetic data, biometric data, or the commission or alleged commission any crime or offense. Customer will not provide Content or Customer Data in violation of FERPA or HIPPA or use the Services for High Risk Activities. Cloudwords shall not be liable to the extent that the Customer processes data through, or submits data to, the Service in breach of this Section.

3. Updates to Services and Terms.

3.1   Limitations on Changes. Cloudwords may update the Services, provided the updates do not result in a material reduction of the functionality, performance, availability, or security of the Services. Cloudwords may discontinue the Service or any portion of the Service with 120 days prior written notice if it ceases to provide the Service or the portion thereof to the entire general Customer base.

3.2   Changes to Terms. Cloudwords may update these URL Terms from time to time, provided the updates do not (a) result in a material degradation of the Services, (b) expand the scope of or remove any restrictions on Cloudwords’ processing of Content or Customer Data, or (c) have material adverse impact on Customer’s rights under the URL Terms. Cloudwords will notify Customer of any material updates to the URL Terms.

3.3   Permitted Changes. Section 3.1 (Limitations on Changes) and Section 3.2 (Changes to Terms) do not limit Cloudwords’ ability to make changes required to comply with applicable law or address a material security risk, or that are applicable to new or pre-general availability Services or functionality.

4. Confidentiality

4.1   Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s Proprietary Information.

4.2   The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any Legal Process, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Cloudwords may collect data with respect to and report on aggregate measures of the Services’ performance and other measures to enhance the performance of the Services. Cloudwords represents and warrants that any such data collection will not include any Proprietary Information of Customer and that the data collected will not permit a third party to identify Customer.

4.3   Customer acknowledges that Cloudwords does not wish to receive any Proprietary Information from Customer that is not necessary for Cloudwords to perform its obligations under this Agreement.

4.4   Neither party shall disclose the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is required by law or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

4.5   At its option, Customer may provide Feedback. If Customer provides Feedback, then Cloudwords and its Affiliates may use that Feedback without restriction and without obligation to Customer.

5. Intellectual Property Rights

5.1   Cloudwords will obtain and process Content only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content submitted to the Services and the Intellectual Property Rights with respect to that Content. Customer hereby grants Cloudwords a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, modify (solely for formatting purposes), reproduce, distribute, display, and perform Content solely for the purposes of performing the Services.

5.2   Except as expressly set forth herein, as between the parties, Cloudwords retains all Intellectual Property Rights relating to the Services or the Software as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Customer or any other party relating to the Services and/or the Software, solely to the extent that the foregoing items do not comprise Proprietary Information of Customer, which are hereby assigned to Cloudwords. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly authorized under this Agreement.

6. Charges and Payment of Fees

6.1   Customer will pay Cloudwords the Fees at the Prices listed on the Order Form. To the extent applicable, Customer will pay Cloudwords for consulting, integration fees or other services upon invoice thereof. All payments will be made in accordance with the Prices, payment schedule and the method of payment specified in the Order Form. If not otherwise specified, payments will be on the Payment Due Date. The limitations set forth in Section 9 shall not apply to Customer’s payment obligations under this Section 6.

6.2   The charges payable by Customer for any Renewal Term will be in accordance to Cloudwords’ charges for the Services provided under such Order Form.

6.3   If Customer is more than fifteen (15) days late on a payment, undisputed and unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Prices under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such Taxes (excluding US taxes based on Cloudwords’ net income) unless Customer has provided Cloudwords with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Cloudwords on account thereof.

7. Terms and Termination

7.1   Unless terminated as described in this Section 7, this Agreement is for the Service Term specified in the Order Form.

7.2   Either party may terminate this Agreement upon thirty (30) days notice for breach by the other party unless the other party cures such breach within such thirty (30) day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business. In addition, Cloudwords reserves the right to Suspend Customer’s access to the Services: (a) for scheduled or emergency maintenance, (b) for Emergency Security Issues, or (c) in the event Customer is in material breach of this Agreement, including failure to pay any undisputed amounts due to Cloudwords.

7.3   The following Sections shall survive any expiration or termination of this Agreement, including, without limitation, Section 2 “Restrictions and Responsibilities,” Section 4 “Confidentiality,” Section 5.2 “Intellectual Property Rights,” Section 6 “Charges and Payment of Fees,” Section 8 “Warranty Disclaimer,” Section 9 “Limitation of Liability,” Section 10 “Indemnification,” Section 11 “Export Controls and U.S. Government Matters,” 12 “Third Party Service Providers; No Endorsement,” and Section 13 “Miscellaneous.”

8. Warranty Disclaimer

The services, software and Cloudwords' confidential information are provided "as-is," without any warranties of any kind. Cloudwords hereby disclaims all warranties, express or implied, including, without limitation, all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

9. Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN THE SERVICES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

EXCEPT FOR CUSTOMER’S BREACH OF SECTION 2.1 OR EITHER PARTY’S LIABILITY ARISING UNDER SECTION 10, THE TOTAL LIABILITY OF CLOUDWORDS, CLOUDWORDS’ SUPPLIERS AND CUSTOMER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO CLOUDWORDS HEREUNDER IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. Indemnification

10.1   Cloudwords shall defend Customer against any Claim made against Customer to the extent such Claim alleges that the Software infringes any U.S. patent, trademark, or copyright or misappropriates a trade secret of such third party, and will indemnify and hold Customer harmless against all judgments finally awarded against Customer by a court of competent jurisdiction, or amounts agreed to in a written settlement agreement to which Cloudwords consents, such consent not to be unreasonably withheld, arising out of such Claim. Cloudwords will pay attorneys’ fees and court costs incurred in connection with the action.

10.2   Customer shall defend Cloudwords against any Claim made against Cloudwords to the extent such Claim alleges that Customer’s Content or Customer Data violates any applicable law or third party right, and will indemnify and hold Cloudwords (and its directors, employees, agents and suppliers) harmless against all judgments finally awarded against Cloudwords by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by Customer arising out of such Claim. Customer will pay attorneys’ fees and court costs incurred in connection with the action.

10.3   10.3 The obligations set forth in this Section shall apply only if (i) the indemnified party notifies the indemnifying party in writing of a Claim within ten (10) days after learning of the same, unless a delayed notification does not cause actual prejudice to the indemnifying party’s ability to defend such Claim; (ii) the indemnified party reasonably assists the indemnifying party, at the indemnifying party’s expense, with the defense and settlement of any Claim; and (iii) the indemnified party provides the indemnifying party with the sole control of the defense and settlement of any Claim, provided, however, that the indemnifying party shall not settle any Claim that admits fault or liability of the indemnified party without the indemnified party’s prior written consent.

11. Export Controls and U.S. Government Matters

Customer will comply with all applicable Export Control Laws. Notwithstanding anything else, Customer may not provide to Cloudwords or any other person (whether through the Services or any other means), or export or re-export, or allow the export or re-export of the Services, any data or information, or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.

12. Third Party Service Providers: No Endorsement

Customer and Cloudwords acknowledge that Customer may require the enlistment of translation services through Third Party Service Providers which are related to the Cloud Services. Cloudwords offers a marketplace where Customer may access and engage Third Party Service Providers. Customer’s use of Cloudwords’ marketplace is at Customer’s sole election and discretion. Customer may direct Cloudwords as to which Third Party Service Providers they desire to use with the Services. Customer may enter into a direct relationships or agreement with such Third Party Service Providers and they will remain responsible for these Third Party Service Providers. Cloudwords makes no representations about the suitability, reliability, timeliness, or accuracy of the Third Party Service Providers, and Cloudwords expressly disclaims any and all responsibility and liability for the acts and omissions of such Third Party Service Providers, or that may arise between Customer and such Third Party Service Providers. NO ENDORSEMENT OF ANY THIRD PARTY SERVICE PROVIDER SHOULD BE INFERRED DUE TO ANY REFERENCE TO THAT THIRD PARTY OR INCLUSION OF DATA RELATING TO THAT THIRD PARTY SERVICE PROVIDER IN CONNECTION WITH THE SERVICES.

13. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer except with Cloudwords’ prior written consent, which may not be unreasonably withheld. Cloudwords may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The parties are independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Cloudwords in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Cloudwords will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Mateo County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement (and each party hereby submits to such jurisdiction). Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Cloudwords. Cloudwords is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.

Definitions

• "Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
• "Agreement” means this Cloudwords Service Agreement plus any Order Forms and related terms listed on any specified URL.
• “Claim” means any third-party legal proceeding which is any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
• “Content” means Customer Data and content (including audio and video content) submitted to the Services by or on behalf of Customer
• “Control” means control of greater than 50% of the voting rights or equity interests of a party.
• “Customer Data” means data provided to Cloudwords by Customer through the Services.
• “COPPA” means the Children’s Online Privacy Protection Act.
• “Emergency Security Issue” means either: (a) Customer’s or End Users’ use of the Services, where such use could disrupt: (i) the Services; (ii) other customers’ or their end users’ use of the Services; or (iii) the Cloudwords network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
• “End Users” means individuals whom Customer permits to use the Services.
• “EU Privacy Law” means Directive 95/46/EC of the European Parliament, Regulation (EU) 2016/679 of the European Parliament, or any national laws adopted pursuant to any of the foregoing.
• “Export Control Laws” means all applicable export and re-export control laws and regulations, including (i) the Export Administration Regulations (“EAR”) 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.
• “Feedback” means feedback and suggestions about the Cloudwords Services provided to Cloudwords by the Customer or its Affiliates or Third-Party Service Providers.
• “Fees” means the amounts, including Taxes, if any, invoiced to Customer for the Services as agreed and set forth on the Order Form.
• “FERPA” means the Family Educational Rights and Privacy Act of 1974 as it may be amended from time to time, and any regulations issued under it.
• “High Risk Activities” means activities where the failure of the Services could lead to death, serious personal injury, or severe environmental or property damage.
• “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.
• “including” means including but not limited to.
• “Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.
• “Intellectual Property Right(s)” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
• “Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
• “Notification Email Address” means the email address(es) designated by Customer in the Order Form.
• “Order Form” means an order form issued by Cloudwords and executed by Customer and Cloudwords specifying the Services Cloudwords will provide to Customer under this Agreement.
• “Payment Due Date” means 30 days from the invoice date.
• “Prices” has the meaning stated in the applicable Order Form (if applicable). Prices do not include Taxes.
• “Primary Contact” means an employee who will be responsible for all matters relating to this Agreement as provided on the applicable Order Form.
• “Proprietary Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data is Customer’s Confidential Information. Confidential Information does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
• “Renewal Term” if any means the Term or renewal term option as listed on the applicable Order Form and any mutually agreed upon additional terms related to the extension of the Term.
• “Service” or “Services” means the Cloudwords on-line, web-based application as identified on an Order Form and provided by Cloudwords via the cloudwords.com domain.
• “Service Term” means the duration of time that Cloudwords makes the Services available to Customer pursuant to this Agreement and the relevant Order Forms during the period identified on an Order Form.
• “Software” means source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services, any downloadable tools, software development kits, or other such computer software provided by Cloudwords for use in connection with the Services, and any updates Cloudwords may make to such Software from time to time.
• “Suspend” or “Suspension” means disabling access to or use of the Services or components of the Services.
• “Taxes” means all government-imposed taxes, except for taxes based on Cloudwords’ net income, net worth, asset value, property value, or employment.
• “Term” means the Term listed on the applicable Order Form and any mutually agreed upon Renewal Terms.
• “Third Party Service Providers” means the third-party service vendors that provide related translation services through offers in the translation service marketplace where Customer may access and engage either directly or indirectly to supplement the Cloudwords Services.
• “URL” means a uniform resource locator address to a site on the internet.
• “URL Terms” means these Cloudwords Service Agreement terms https//www.cloudwords.com/terms.
• “Use Restrictions” means the restrictions in Section 2 (Restrictions & Responsibilities).