1. Services and Statement of Work. AmeriCloud Solutions, Inc. will provide the services (“Services”) as described in each Statement of Work (“SOW”). A SOW may only be amended or modified by a written change control document signed by authorized representatives of AmeriCloud Solutions, Inc. and Customer. In the event of any conflict between this Agreement and an applicable SOW, the SOW shall govern, but only as to that specific SOW.
2. Customer’s Duties and Responsibilities. Customer shall make available in a timely manner at no charge to AmeriCloud Solutions, Inc. all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources reasonably required by AmeriCloud Solutions, Inc. for the performance of the Services. Customer will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to AmeriCloud Solutions, Inc., office space, services and access to equipment (such as copiers, fax machines, and modems) as AmeriCloud Solutions, Inc. may reasonably require to provide the Services.
3. Relationship of Parties. Each party will be and act as an independent contractor and not as an agent or partner of, or joint venture with the other party, and neither party will by virtue of this Agreement have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
4. Confidentiality. AmeriCloud Solutions, Inc. and Customer each agree to retain in confidence the Confidential Information of the other party. Each party agrees to:
(a) preserve and protect the confidentiality of the other party’s Confidential Information:
(b) refrain from using the other party’s Confidential Information except as contemplated herein; and
(c) not disclose such Confidential Information to any third party except as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein).
Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is:
(i) already publicly known;
(ii) discovered or created by the receiving party without reference to or use of the Confidential Information of the disclosing party, as shown in records of receiving party;
(iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or
(iv) required to be disclosed by law or court order.
The confidentiality obligations of this Section 4 shall survive the termination of this Agreement for a period of five (5) years. “Confidential Information” means all non-public information, trade secrets, know-how, inventions, techniques, processes, methodologies, programs, schematics, software, source code, data, work product, or any materials which are either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential. If either party breaches any of its confidentiality or other obligations hereunder, the other party shall be entitled to seek such equitable relief, including but not limited to injunctive relief, in addition to any monetary damages to which it may be entitled.
5. Intellectual Property Rights.
5.1 Consulting services performed by AmeriCloud Solutions, Inc. relate to AmeriCloud Solutions, Inc. software products and technology. As a result, AmeriCloud Solutions, Inc. retains all right, title and interest in and to the materials, deliverables, Services and work product provided under each SOW, including patents, trademarks, copyrights (including the right to any derivative works), and all other intellectual property rights. The materials, deliverables, Services and work product shall not constitute “works made for hire” as that term is defined in Section 101 of the U.S. Copyright Act. To the extent that any materials, deliverables, Services or work product are considered to be “works made for hire,” Customer agrees to assign all right, title, and interest in the foregoing to AmeriCloud Solutions, Inc. Notwithstanding anything to the contrary in this Agreement, AmeriCloud Solutions, Inc. shall obtain no right, title or interest in any of Customer’s Confidential Information.
5.2 AmeriCloud Solutions, Inc. grants to Customer a nonexclusive, non-transferable, royalty-free license to use the deliverables solely for Customer’s internal use, pursuant to the applicable license or subscription agreement relating to the AmeriCloud Solutions, Inc. software product at issue. Support for customizations or deliverables is not provided under the AmeriCloud Solutions, Inc. support agreement (or any SOW unless specified therein) unless any issues also apply to the generally-available product.
6. Customer Security Regulations/Work Policy. Customer shall provide to AmeriCloud Solutions, Inc., and AmeriCloud Solutions, Inc. shall ensure that its personnel or subcontractors make commercially reasonable efforts to comply with Customer’s security regulations. Unless otherwise agreed to by both parties, AmeriCloud Solutions, Inc.’s personnel (including its subcontractors) will observe the working hours, working rules, and holiday schedules of Customer while working on Customer’s premises provided that AmeriCloud Solutions, Inc.’s personnel are provided reasonable prior notice of all such hours, rules and schedules.
7. Warranty and Disclaimer. AmeriCloud Solutions, Inc. WARRANTS THAT IT WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT ALL SERVICES RENDERED PURSUANT TO THIS AGREEMENT WILL BE PERFORMED IN A WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY PRACTICES. EXCEPT FOR THE FOREGOING, SERVICES, DELIVERABLES AND WORK PRODUCT ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND. AmeriCloud Solutions, Inc. AND ITS SUPPLIERS AND/OR SUBCONTRACTORS DISCLAIM ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. AmeriCloud Solutions, Inc. AND ITS SUPPLIERS AND/OR SUBCONTRACTORS DO NOT WARRANT THAT SERVICES, DELIVERABLES, OR WORK PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE PERFORMANCE OR USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE.
8. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF AmeriCloud Solutions, Inc. AND/OR SUPPLIERS AND/OR SUBCONTRACTORS UNDER THIS AGREEMENT OR ANY SOW HEREUNDER SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO AmeriCloud Solutions, Inc. UNDER THE SOW WHICH IS THE SOURCE OF THE LIABILITY. ALL LIABILITY UNDER THIS AGREEMENT IS CUMULATIVE AND NOT PER INCIDENT.
9. Consequential Damages Waiver. IN NO EVENT SHALL AmeriCloud Solutions, Inc. OR ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE UNDER THIS AGREEMENT FOR (A) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR ANY OTHER INDIRECT DAMAGES EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF, OR (B) ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE EQUIPMENT OR SERVICES.
10. Term and Termination.
10.1. The term of this Agreement shall commence on the Effective Date stated in the SOW and shall continue in full force unless terminated earlier under the provisions of Section 10.
10.2. This Agreement or any SOW may be terminated for convenience by either party upon thirty (30) days prior written notice. Any such termination shall not relieve either party of their respective obligations under any SOW in effect at the date of termination of a SOW or the Agreement (which obligations shall remain in effect for such SOW), except as otherwise mutually agreed in writing by the parties.
10.3. Failure by either party to comply with any material term or condition under this Agreement or a SOW issued hereunder shall entitle the other party to give the party in default written notice requiring it to cure such default. If the party in default has not cured such default within thirty (30) days of receipt of notice, the notifying party shall be entitled, in addition to any other rights it may have, to terminate this Agreement (and all SOWs issued hereunder) and/or the individual SOW by giving notice effective immediately.
10.4. This Agreement or individual SOW may be terminated immediately by either party through written notice in the event that either party ceases to carry on business as a going concern, becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of such party’s assets.
10.5. Upon termination of this Agreement and/or any SOW’s, Customer shall pay AmeriCloud Solutions, Inc. for all work performed under the affected SOW(s) up to the effective date of termination. In addition, Customer agrees, within ten (10) days after termination, to deliver to AmeriCloud Solutions, Inc. at AmeriCloud Solutions, Inc.’s discretion either: (i) the original and all copies of the Deliverables and related materials received by Customer in connection with the terminated work for which AmeriCloud Solutions, Inc. has not been paid in the course of performance; or (ii) a certificate certifying that Customer has destroyed the original and all copies of such Deliverables and related materials.
10.6. The rights and remedies of AmeriCloud Solutions, Inc. provided in this Section 10 shall not be exclusive and are in addition to all other rights and remedies provided at law, in equity or otherwise under this Agreement or SOWs hereunder.
10.7. Sections 3, 4, 5, 8, 9, 11, 14 and 15 of this Agreement and any accrued rights to payment shall survive termination, regardless of the reason for termination.
11. Assignment and Subcontracting. Customer shall not assign or transfer any obligations or benefits under this Agreement without the prior written consent of AmeriCloud Solutions, Inc. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. The Services may be provided by AmeriCloud Solutions, Inc. or individuals or organizations employed by or under contract with AmeriCloud Solutions, Inc., at the discretion of AmeriCloud Solutions, Inc., provided that AmeriCloud Solutions, Inc. shall be responsible for the performance of such individuals or organizations.
12. Notice. All notices required or permitted hereunder will be in writing and deemed received when
(a) delivered personally;
(b) when sent by confirmed facsimile (followed by the actual document in air mail/air courier);
(c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or
(d) one (1) day after deposit with a commercial express courier specifying next day delivery or, for international courier packages, two (2) days after deposit with a commercial express courier specifying 2-day delivery, with written verification of receipt.
All communications will be sent to the addresses set forth on the Order Form or to such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph.
13. Force Majeure. Except for payment obligations, each party shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control.
14. Solicitation of Employees. Customer acknowledges and agrees that the employees and consultants of AmeriCloud Solutions, Inc. performing the Services are a valuable asset to AmeriCloud Solutions, Inc. and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the completion of the Services, it will not offer employment as an employee, independent contractor, or consultant to any AmeriCloud Solutions, Inc. employee or consultant (including employees or consultants of AmeriCloud Solutions, Inc.’s subcontractors) who perform any of the Services.
15.1. Customer Affiliates. AmeriCloud Solutions, Inc. agrees that Customer’s Affiliates shall be permitted to purchase Services under this Agreement, provided, however, that any such purchase(s) shall be evidenced by a separate SOW and Customer and its Affiliate(s) shall be jointly and severally liable for the compliance by the Affiliate(s) with the terms and conditions of this Agreement. For purposes of this Agreement, the term “Affiliates” means any affiliated entity that Controls, is Controlled by, or is under common Control with a party to this Agreement, and the term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of an entity through the ownership of voting securities (at least fifty-one percent (51%) of its voting or equity securities), contract, voting trust, or otherwise.
15.2. Export Control. Customer acknowledges and agrees that the deliverables may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Customer agrees and certifies that it will not export or re-export either the deliverables or any directly related materials to or into any country in violation of such controls or any other laws, rules or regulations of any country, state or jurisdiction.
15.3. Affirmative Action/Equal Opportunity Employer. AmeriCloud Solutions, Inc. is an Affirmative Action/equal employment opportunity employer who will employ qualified individuals with disabilities and qualified protected veterans.
16. Additional Terms and Conditions for AmeriCloud Solutions, Inc. University Dedicated Onsite. The following additional terms and conditions apply to AmeriCloud Solutions, Inc. Dedicated Classroom Training only:
A. Cancellation: Training engagements must be rescheduled or cancelled within ten (10) business days of the training event, otherwise the full amount of training fees and travel expenses will be due. If Customer cancels or reschedules before the deadline stated in the preceding sentence, for the avoidance of doubt, Customer will be responsible for any cancellation or change fees AmeriCloud Solutions, Inc. has incurred or may incur in connection with any booked travel.
B. Warranty and Disclaimer: AmeriCloud Solutions, Inc. warrants that it will perform training services in a reasonable manner using generally accepted industry standards and practices. THE EXPRESS WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
C. Training Materials: All materials provided to Customer for training purposes (and all intellectual property rights related thereto) are owned exclusively by AmeriCloud Solutions, Inc. (“Training Materials”). AmeriCloud Solutions, Inc. grants Customer a limited, non-exclusive license to use and make a reasonable number of internal copies of any Training Materials strictly for the purpose of facilitating the understanding, utilization, and operation of its licensed AmeriCloud Solutions, Inc. Software product(s).
D. Changes: Changes to the final agenda and scope of a training engagement requested by Customer may incur additional costs; including costs for additional participants in the training session(s); such changes must be discussed with the AmeriCloud Solutions, Inc. Training Manager. Any changes must be agreed to by both parties in writing.