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CloudGarden Consulting Services terms and conditions

These Services Terms and Conditions (“Terms and Conditions”) govern the delivery of Services pursuant to the Consulting Services Agreement (“Agreement”) entered into between CloudGarden Consulting LLC (“CGC”) and the client identified in the Agreement (the “Client”).  The Agreement and these Terms and Conditions are collectively referred to as the “Agreement.” 

AGREEMENT

  1. . CGC shall provide to Client the services (the “Services”) set forth in the Agreement.

  2. Client Obligations

    1. Project Manager.  Client shall designate one of its agents to serve as its primary contact with respect to the Agreement and to act as its authorized representative with respect to matters pertaining to the Agreement and who will have the authority to act on behalf of Client in connection with matters pertaining to the Agreement, with such designation to remain in force unless and until a successor is appointed.

    2. .  Client shall require that the Client Project Manager respond promptly to any reasonable requests from CGC for instructions, information or approvals required by CGC to provide the Services.

    3. .  Client shall cooperate with CGC in its performance of the Services and provide access to Client's premises, employees and equipment as required to enable CGC to provide the Services.

    4. .  Client shall take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in CGC's provision of the Services.

    5. Use of Services.  Client shall not use, and shall not permit its employees or agents to use, the Services for any illegal purpose.

  3. Fees and Expenses

    1. .  In consideration of the provision of Services by CGC and the rights granted to Client under the Agreement, Client shall pay the fees set forth in the applicable Agreement.  CGC will invoice the Client at least once per month.  All fees shall be due within fifteen (15) days after receipt of the invoice. 

    2. .  Unless otherwise agreed to in the Agreement, Client shall reimburse CGC for all reasonable out of pocket expenses incurred in performance of the Services. 

    3. Late Payments.  Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1 1/2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.  Client shall also reimburse CGC for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees.  In the event Client fails to pay undisputed invoices when due two or more times, CGC may require a security deposit in the amount of one month of recurring fees and charges as a condition to providing continued Service.  In addition to all other remedies available under the Agreement or at law (which CGC does not waive by the exercise of any rights hereunder), CGC shall be entitled to suspend the provision of any Services if the Client fails to pay any amounts when due and such failure continues for five (5) days following written notice of the failure to pay.

  4. CGC Limited Warranty and Limitation of Liability

    1. CGC Warranties.  CGC warrants that it shall use reasonable efforts to perform the Services: (a) in accordance with the terms and subject to the conditions set out in the Agreement, and (b) in a workmanlike and professional manner in accordance with generally recognized industry standards for similar services.

    2. Remedy for Breach of Warranties.  CGC's sole and exclusive liability and Client's sole and exclusive remedy for breach of the warranties in section 4.1 shall be for CGC to use reasonable commercial efforts to re-perform the Services.  The foregoing remedy shall not be available unless Client provides written notice of such breach within ten (10) days after delivery of the Services giving rise to the claim.

    3. Disclaimer of Warranties.  CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT, EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, THE SERVICES, including any related software and equipment, ARE PROVIDED “AS IS” and “as available” AND otherwise WITHOUT WARRANTY BY CGC OR ITS THIRD PARTY PROVIDERS OF ANY KIND AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, CGC AND ITS THIRD PARTY LICENSORS AND PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, title, AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT.  CGC exercises no control over and accepts no responsibility for the information or content accessible on the Internet or for the products or services of third parties that may be included in the Services. For clarification purposes, and without limitation, THERE IS NO WARRANTY AS TO CLIENT’S COMPLIANCE with any applicable laws or regulations, PEST PRESSURE, OR THE QUALITY OR QUANTITY OF CLIENT’S HARVESTS or the well-being of client’s employees.  CLIENT SHALL AT ALL TIME BE COMPLETELY RESPONSIBLE FOR all of THESE MATTERS.  CLIENT WILL NOT HOLD CGC AND/OR IT’S THIRD PARTY PROVIDERS RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM CLIENT’S USE OF THE SERVICES.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO CGC AND/OR ITS THIRD PARTY PROVIDERS.

    4. Limitation of Liability.  EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER CGC NOR ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS SHALL BE LIABLE TO CLIENT (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM CLIENT’S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND -- INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS AND LOSS OF DATA -- IN ANY WAY RELATED TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT OR AS A RESULT OF NEGLIGENCE OR BREACH OF STATUTORY DUTY), REGARDLESS OF WHETHER THE PARTY THAT IS LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.  IN NO EVENT SHALL CGC’S LIABILITY FOR A CLAIM UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO OR RECEIVED BY CGC UNDER THE APPLICABLE AGREEMENT FROM WHICH THE CLAIM AROSE DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.  NOTWITHSTANDING THE ABOVE, CGC WILL REMAIN LIABLE FOR for bodily injury or personal property damage resulting from grossly negligent or willful actions oF CGC while on Client's premises to the extent such actions or omissions were not caused by Client.

  5. Client Representations and Warranties.In addition to any other representations and warranties set forth in the Agreement, including these terms and Conditions, Client represents, warrants and covenants that: (i) It is a legal entity duly organized, validly existing and in good standing in the jurisdiction of its incorporation/organization/formation; (ii) It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of the Agreement; (iii) It has the full right, power and authority to enter into the Agreement; and (iv) it is now and through the Term shall remain in compliance with all applicable laws.

  6. Client Indemnification.  In addition to any other indemnification obligations under the Agreement, Client shall defend, indemnify and hold harmless CGC, and its officers, directors, employees, agents, Affiliates, successors and permitted assigns, and third party providers and licensors (collectively, "CGC Indemnified party"), from and against any and all claims and losses arising out of or resulting from any third-party Claim alleging: (i) breach by Client of any representation, warranty, covenant or other obligations set forth in the Agreement; (ii) negligence or other fault of Client in connection with the Agreement; and (iii) that any Client materials or intellectual property or CGC’s receipt or use thereof in accordance with the terms of the Agreement infringes any Intellectual Property of a third party. 

  7. Intellectual Property. Except as otherwise provided, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under the Agreement or prepared by or on behalf of CGC in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Client or customer materials incorporated in the Deliverables, shall be owned by CGC.  Provided full payment has been received by CGC, CGC hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.

  8. Client Materials License. Client hereby grants to CGC the limited, royalty-free, non-exclusive right and license to the Client Materials solely as necessary to incorporate the Client Materials into the deliverables as described in the Agreement.  “Client Materials” means, collectively, all content and all other information in any form or media, including but not limited to documents, data, know-how, ideas, specifications, software code and other materials provided to CGC by or on behalf of Client, whether or not the same: (a) are owned by Client, a third party or in the public domain; or (b) qualify for or are protected by any intellectual property rights.

    1. Confidential Information.  From time to time during the Term of the Agreement, either party (as the “Disclosing party”) may disclose or make available to the other party (as the “Receiving party”), non-public proprietary and confidential information of Disclosing party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving party's breach of this Section; (b) is or becomes available to the Receiving party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving party's possession prior to Disclosing party's disclosure hereunder; or (d) was or is independently developed by Receiving party without using any Confidential Information.

    2. .  The Receiving party shall: (a) protect and safeguard the confidentiality of the Disclosing party's Confidential Information with at least the same degree of care as the Receiving party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving party's Representatives who need to know the Confidential Information to assist the Receiving party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. If the Receiving party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing party of such requirements to afford Disclosing party the opportunity to seek, at Disclosing party's sole cost and expense, a protective order or other remedy.

  9. Term and Termination

    1. .  This Agreement shall commence as of the date set forth on the Agreement and shall continue for the period set forth in the Agreement, unless sooner terminated as set forth below. 

    2. Termination for Default.  Either party may terminate the Agreement, effective upon written notice to the other party (the “Defaulting party”), if the Defaulting party:

      • Materially breaches the Agreement and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting party does not cure such breach within thirty (30) days after receipt of written notice of such breach.  In the event CGC terminates the Agreement pursuant to this section, it shall not have any obligation to refund any fees paid in advance by Client.

      • Becomes insolvent or admits its inability to pay its debts generally as they become due, becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, is dissolved or liquidated or takes any corporate action for such purpose, makes a general assignment for the benefit of creditors, or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

    3. Termination for Convenience.  Notwithstanding the above, unless otherwise provided, CGC may terminate the Agreement for any reason, upon seven (7) days written notice to Client.  In addition, for hourly based Services, Client may also terminate the Agreement for any reason, upon seven (7) days written notice to CGC.

    4. Effect of Termination.  Upon termination, Client shall pay CGC for all Services delivered prior to the date of termination.

    1. Entire Agreement. The Agreement, including and together with these Terms and Conditions and any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained in the Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

    2. . All notices, requests, consents, claims, demands, waivers and other communications under the Agreement (each, a “Notice”) must be in writing and addressed to the other party at the address set forth above in the Agreement (or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid), or email provided the recipient acknowledges receipt in writing.  Except as otherwise provided in the Agreement, a Notice is effective only (a) on receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.

    3. Independent Contractor.  CGC shall be an independent contractor with respect to the performance of Services under the Agreement.  CGC and Client agree that nothing in the Agreement shall be (i) construed as constituting CGC as other than an independent contractor of Client for any purpose whatsoever or (ii) deemed to create an employer-employee, partnership, franchise or joint venture relationship between CGC and Client. 

    4. . If any term or provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify the Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

    5. .  No amendment to or modification of the Agreement or these Terms and Conditions is effective unless it is in writing, identified as an amendment to the Agreement, and signed by an authorized representative of each party.

    6. .  No waiver by any party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving.  Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

    7. .  Client shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under the Agreement without the prior written consent of CGC. Any purported assignment or delegation in violation of this section shall be null and void.  No assignment or delegation shall relieve the Client of any of its obligations under the Agreement. 

    8. Successors and Assigns.  This Agreement is binding on and inures to the benefit of the parties to the Agreement and their respective permitted successors and permitted assigns.

    9. No Third-party Beneficiaries.  The Agreement benefits solely the parties to the Agreement and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.

    10. Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to the Agreement, and all matters arising out of or relating to the Agreement, is governed by, and is to be construed in accordance with, the laws of the State of Colorado, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado.

    11. .  If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in Denver Colorado. Any costs and fees, other than attorney fees, associated with the mediation will be shared equally by the parties.  If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit the dispute to a mutually agreed-upon arbitrator in Denver, Colorado. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to do so. Costs of arbitration, including attorney fees, will be allocated by the arbitrator.

    12. Force Majeure.  CGC shall not be liable or responsible to Client, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of CGC including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.