TERMS AND CONDITIONS
1. Services: Profound Cloud will provide Customer with services (“Services”) on software products and supported hardware (“Supported Products”) set forth in the applicable Service Plan. Each Service Plan shall be governed by the terms of these Terms and Conditions and shall be binding upon the parties and shall be deemed to constitute a part of these Terms and Conditions as if fully set forth herein, and all rights and obligations of the parties shall be deemed to apply to such Service Plan as if fully set forth therein. In the event of any conflict or ambiguity between the terms of the Service Plan and the terms set forth in the main body of the Agreement, the terms of the main body of the Agreement shall prevail. Profound Cloud reserves the right to amend the Services provided and fees covered under a Service Plan, at any time, upon at least thirty (30) days’ notice to Customer via the electronic mail address registered by Customer, provided that Profound Cloud will not amend the Services in any way that materially impacts Profound Cloud’s obligation to deliver the Services.
2. Exclusions: Services shall include only the services expressly stated in the applicable Service Plan, and shall exclude other information or activities including: (a) rectification of lost or corrupted data or any other loss or damage arising for any reason other than the gross negligence or willful misconduct of Profound Cloud or another individual or entity retained by Profound Cloud to provide services under these Terms and Conditions, (b) issues that could be resolved by upgrading software, (c) use or modification of Supported in a manner for which the software is not intended to be used or modified, (d) damage to the media on which Supported Products are provided, or to the computer on which Supported Products are installed, (e) use of a computer system that is incompatible with Supported Products, (f) issues relating to Internet, email, file management, network configuration, scripting, programming, compiling, debugging, infrastructure design, content creation, content customization, multimedia project planning/design, resource management, budgeting, training, onsite diagnosis or other issues not within the scope of the Services described under a Service Plan and (g) purchasing services involving software or hardware except with use of applicable Profound Cloud-approved third party vendors.
3. Software: In the event that software is provided as part of a Service Plan, and unless otherwise specified in the Service Plan, such software is the copyrighted work of Profound Cloud and/or its licensors. Customer may install, reproduce, and use the software exclusively for the purpose of supporting Supported Products, but, except as permitted by applicable law, may not decompile, reverse engineer, modify, rent, lease, loan or create derivative works in the software. If the software is subject to the terms of a separate license agreement, the terms of the separate license agreement will govern the use of the software.
(a) Support Incidents: If applicable under a Service Plan, Support Services are provided in single, multiple or unlimited Support Incident packages. A Support Incident is a specific, discrete problem whose origin can be isolated to a single cause. Profound Cloud will make reasonable efforts to resolve a Support Incident but does not guarantee that Support Incidents will be resolved. Profound Cloud, in its reasonable discretion, will determine what constitutes a Support Incident and if the Support Incident is resolved. Generally, a Support Incident is resolved when Customer receives one of the following: (a) information that resolves the problem, (b) information on how to obtain a software solution that will resolve the problem, (c) notice that the problem is caused by a known, unresolved issue or an incompatibility issue with a Supported Product, (d) information that identifies the problem as being resolved by upgrading to a newer release of a Supported Product or (e) notice that the problem has been identified as a hardware equipment issue. Under a Service Plan with a limited number of Support Incidents, each new Support Incident contact made by Customer will decrease the remaining number of eligible Support Incidents.
(b) Use: Services are not intended for use in the operation of activities in which the failure of the Support Services to attain a desired result could lead to death, personal injury, or severe physical or environmental damage.
(a) Number of Users: For purposes of determining the applicable Service type under a Service Plan, “Users” shall mean the greater of (a) users (employees and contractors) authorized by Customer to submit Support Incidents and (b) workstations for which Services will be required. Customer and Profound Cloud shall review Service usage and Support Incidents on a quarterly or other periodic basis, and adjust the Service type and number of authorized Users as appropriate to reflect actual usage on a going-forward basis.
(b) Permitted Users: Customer shall identify Customer employees who are permitted users (“Customer Permitted Users”) and who shall receive usernames and passwords to use the System for the purposes permitted by these Terms and Conditions. Customer shall provide to Profound Cloud a list of such Customer Permitted Users, and shall provide periodic updates or reviews as necessary. Customer authorizes Profound Cloud to rely upon any communication or Support Incident submitted to Profound Cloud and/or instructions provided to Profound Cloud by any such Customer Permitted User, without making further investigation or inquiry. Such conduct by Customer Permitted Users, and Profound Cloud’s acting thereupon, shall be solely the responsibility of and the risk of Customer unless any resulting loss or damage is caused by the gross negligence or willful misconduct of Profound Cloud. Customer shall indemnify, defend, and hold harmless Profound Cloud from any claim, proceeding, loss or damages based upon any unauthorized communication with Profound Cloud by any Customer Permitted User unless any resulting loss or damage is caused by the negligence or willful misconduct of Profound Cloud.
6. Response Times:
(a) Response Times: Response times are applicable to Incident Resolution Services only. For all Service Plans, Profound Cloud will make reasonable efforts to respond to a Service request within a reasonable time or within the response time described under an applicable Service Plan (“Response Time”), whichever occurs first. Response Times are measured in accordance with Profound Cloud’s business hours set forth above. Response Times are exclusive of non-urgent, minor functionality or lower-priority Support Incidents.
(b) Target Response Time: “Target Response Time” is defined as the time between receipt of the Support Incident and the time that a Profound Cloud staff member begins working on the Support Incident. Due to the wide diversity of problems that can occur, and the methods needed to resolve them, Target Response Time is not defined as the time between the receipt of a Support Incident and problem resolution. Target Response Times are for remote desktop, email and telephone support only.
7. Responsibility for Profound Cloud Employees: All personnel provided by Profound Cloud and its partners and contractors to perform any Services shall be considered Profound Cloud’s employees or agents, and Profound Cloud shall be responsible for payment of fees or salaries (including the withholding or payment of all payroll or income taxes), worker’s compensation, disability benefits and the like for such personnel.
8. Customer Responsibilities: Customer acknowledges that:
(a)(i) Customer Cooperation and Assistance to Profound Cloud: The Services to be provided by Profound Cloud may be dependent on Customer providing certain data, information and/or assistance, and if the parties agree that certain Services are to be performed at Customer’s facility, such Services may be dependent on Customer providing access to Customer’s facilities and suitable work space, and (ii) such cooperation may be essential to the performance of Services by Profound Cloud. Customer further acknowledges that certain Services under the applicable Service Plan may not be fully available or operational during the period of onboarding and implementation of Services. The parties agree that any delay or failure by Profound Cloud to provide Services hereunder which is caused by Customer’s failure to timely provide such cooperation or assistance reasonably requested by Profound Cloud, or occurring during such onboarding and implementation period, shall not be deemed to be a breach of Profound Cloud’s performance obligations under these Terms and Conditions. Customer is responsible for all fees in establishing and maintaining email and telephone communications with Profound Cloud, and
(b) Customer Backups and Data Security Obligations: Customer is responsible for any and all restoration or reconstruction of lost or altered files, data, or programs. Regardless of whether Customer has contracted for backup services under the applicable Service Plan, Customer will maintain and implement a complete data backup and disaster recovery plan. Customer is solely responsible for any and all security of its confidential, proprietary or classified information. Services are provided for the internal use of Customer only, and any unauthorized distribution of the Services will be grounds for immediate termination of these Terms and Conditions.
9. Location of Services; On-Site Services; Remote Access Services: All Services shall be performed at a Profound Cloud-managed facility or a designated partner facility. On-site services shall be available only in the Borough of Manhattan, with exceptions to be made subject to separate agreement between Customer and Profound Cloud and reimbursement for reasonable travel fees. On-site service calls will be subject to a minimum 1-hour charge at applicable hourly rate. In the event that Services are to be provided at a Customer’s location, Customer will ensure that Profound Cloud is granted access to the location at the arranged time and will secure a safe working environment sufficient for Profound Cloud to perform the Services. As part of a Service Plan, Profound Cloud may provide Services via Internet remote access, whereby it will access, and if permitted by Customer, control and gather information on Customer’s computer through the installation and use of remote access software. Installation and use of the remote access software by Customer indicates its permission for Profound Cloud to provide Services in this way. All or portions of the remote access software files may remain on Customer’s computer after the Service session is finished. Title to the remote access software and all intellectual property rights included therein remains with Profound Cloud and/or its licensors. Customer may not disassemble or reverse engineer any portion of the remote access software. While remote access Services are provided, Profound Cloud will only access, control and gather information on Customer’s computer that it reasonably believes is necessary to analyze and provide assistance for the Support Incident. Profound Cloud recommends that Customer close all files and applications that are not pertinent to the Support Incident. The remote access software or the features of Customer’s computer will allow Customer to terminate the remote access Service session at any time.
10. Customer Confidential Information: The parties anticipate that Customer may disclose confidential information to Profound Cloud. For purposes hereof, “Confidential Information” means information (i) which relates to the purpose and subject matter of the Services, including computer programs, business and technical information, and data, or (ii) which, although not related to the Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by Customer to Profound Cloud in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Profound Cloud within fifteen (15) days of the initial disclosure. Profound Cloud may use Customer’s Confidential Information only for the purposes of these Terms and Conditions and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Profound Cloud may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under these Terms and Conditions and only to its employees and contractors who have a need to know for such purposes. The restrictions of these Terms and Conditions on use and disclosure of Confidential Information shall not apply to information that (a) is in the possession or control of Profound Cloud at the time of its disclosure hereunder, (b) is, or becomes publicly known, through no wrongful act of Profound Cloud, (c) is received by Profound Cloud from a third party free to disclose it without obligation to Customer or (d) is independently developed by Profound Cloud without reference to Confidential Information.
11. Fees, Expenses and Taxes:
(a) Fees: Customer shall pay fees to Profound Cloud in accordance with the applicable Service Plan. Fees shall be payable net thirty (30) days from invoice date, except for amounts in good faith dispute. Profound Cloud and Customer will make good faith efforts to resolve all disputed amounts within thirty (30) days of notice of the dispute. In any event, disputed amounts become due sixty (60) days after date of invoice. Fees shall be are based on Profound Cloud’s current pricing and subject to increases after the initial term on at least thirty (30) days written notice to Customer from Profound Cloud.
(b) Expenses: Customer shall reimburse Profound Cloud directly for reasonable travel and out-of-pocket business expenses. All reimbursements of expenses shall occur within fifteen (15) days of submission of expense reports to Customer. Profound Cloud shall make reasonable efforts to minimize reimbursable expenses and to comply with Customer’s then current travel policies and procedures. Customer shall provide Profound Cloud a copy of its latest travel and expense policies. In addition, Profound Cloud will add a fee of fifteen percent (15%) of any reimbursable expenses incurred as part of performing the Services for hardware and software purchases and other materials, courier fees or third-party expenses made on behalf of Customer.
(c) Taxes: Unless otherwise stated, all fees are net of any taxes that apply to such fees, including value added taxes and state or local sales or use taxes, but excluding taxes on property and income taxes.
(d) Payment of Services: Customer shall be required to maintain a credit card on file, current and in effect. Profound Cloud shall be authorized to charge Customer’s credit card from time to time against invoices for services in accordance with the business terms set forth in the applicable Service Plan. Monthly Service Plans are typically charged not later than 1-2 after the start of the applicable billing period. To the extent Profound Cloud is not able to timely obtain payment for services via Customer’s credit card, outstanding balances shall accrue interest at the higher of a rate of two percent (2%) per month or the highest rate permitted by law.
12. Limited Warranty: During the term hereof, Profound Cloud warrants that the Services will be performed in a professional and workmanlike manner and consistent with generally accepted industry standards. For any breach of the above warranty, Profound Cloud shall at its option (a) re-perform the nonconforming or defective Services at its cost and expense and in its discretion, (b) provide substitute Services or (c) issue a complete refund for the non-conforming or defective Services.
13. Disclaimer of Warranty: TO THE EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTY AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED. AS PERMITTED BY APPLICABLE LAW, PROFOUND CLOUD AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL STATUTORY OR IMPLIED WARRANTIES, RELATED TO OR ARISING IN ANY WAY OUT OF THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OR MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROFOUND CLOUD MAKES NO WARRANTY, AND SPECIFICALLY DISCLAIMS ANY WARRANTY ON ANY SOFTWARE (INCLUDING SUPPORTED SOFTWARE AND INCLUDING THE CLOUD APP SUITE SOFTWARE) OR HARDWARE (INCLUDING SUPPORTED HARDWARE).
14. Indemnification: Profound Cloud agrees to indemnify and hold harmless Customer and its officers, directors, and employees from and against any and all damages, liabilities, obligations, losses, deficiencies, actions, costs (including reasonable attorneys’ fees and expenses), demands, suits, judgments, or assessments (hereafter “Claims”) arising out of Profound Cloud’s gross negligence or willful misconduct in the performance of any Services. In the event of any Claim to which this indemnification applies, Customer shall promptly notify Profound Cloud of such Claim pursuant to the notice provisions contained herein, provided, however, the failure to give such notice shall not relieve Profound Cloud from its indemnification obligations. This obligation shall survive termination or expiration of these Terms and Conditions.
15. Limitation of Liability: TO THE EXTENT PERMITTED BY LAW, PROFOUND CLOUD’S AND ITS LICENSOR’S LIABILITY UNDER THESE TERMS AND CONDITIONS IS LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICE PLAN ORDERED BY CUSTOMER. IN NO EVENT SHALL PROFOUND CLOUD AND ITS LICENSORS HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF USE OR EQUIPMENT OR FACILITIES, OR INTERRUPTION OF BUSINESS, ARISING IN ANY WAY OUT OF THESE TERMS AND CONDITIONS UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT PROFOUND CLOUD AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXCLUSIONS OR LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. THESE TERMS AND CONDITIONS GIVE CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE.
16. Term and Termination: The term of each Service Plan shall be as set forth in the applicable Service Plan. Profound Cloud will not provide Services under the applicable Service Plan beyond the end of the Service Plan unless the Service Plan is renewed on or before its termination date. Profound Cloud may terminate a Service Plan at any time (a) if after providing Customer no less than fifteen (15) days prior written notice, Customer fails to pay fees due for a Service Plan, or (b) if after providing Customer no less than thirty (30) days prior written notice, Customer fails to cure a breach of these Terms and Conditions or (c) if Customer breaches a term of any software license agreement governing the use of software provided under a Service Plan.
17. No-Hiring of Profound Cloud Employees and Contractors: Customer acknowledges the substantial amount of time, money, and effort that Profound Cloud has spent and will spend in recruitment of competent employees and contractors. Accordingly, Customer agrees, during the term of any Service Plan and for a period of one (1) year after the latest expiration or termination of any such Service Plan, not to employ or hire, solicit for employment, attempt to employ or actively assist any other person or entity in employing or soliciting for employment or otherwise engaging in any capacity, any employee or contractor of Profound Cloud, without the prior written consent of Profound Cloud.
18. Governing Law: These Terms and Conditions shall be construed under the laws of the State of New York, without regard to its principles of conflicts of law. The parties hereby expressly consent to the jurisdiction and venue of the federal and state courts located in New York, NY.
19. Notices: Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed given when received.
20. Continuing Obligations: The following obligations shall survive the expiration or termination hereof: (a) any and all licenses granted hereunder, (b) any and all limitations of liability and indemnities granted by either party herein, (c) any covenant granted herein for the purpose of protecting the Confidential Information of either party or any remedy for breach thereof and (d) the payment of fees, taxes, duties or any money to either party hereunder.
21. General: Customer may not assign its rights or obligations under a Service Plan without prior written consent of Profound Cloud, and any unauthorized assignment will be void. Profound Cloud will not be liable for performance delays or for nonperformance due to causes beyond its reasonable control. A waiver of any breach or default under these Terms and Conditions shall not constitute a waiver of any subsequent breach or default. If a court of competent jurisdiction holds that any provision of these Terms and Conditions is invalid or unenforceable, the remaining portions will remain in full force and effect, and the parties will replace the invalid or unenforceable provision with a valid and enforceable provision that achieves the original intent of the parties and economic effect of these Terms and Conditions. These Terms and Conditions, including any additional terms referenced herein, constitutes the entire agreement between Profound Cloud and Customer with regard to the Service Plan and the Services provided hereunder and supersedes all prior negotiations, agreements, and understandings with respect to the subject matter, and no addition to or deletion from or modification of any of the provisions hereto shall be binding upon Profound Cloud unless made in writing and signed by an authorized representative of Profound Cloud. Any term or condition on any order or other document submitted by Customer shall be of no force or effect whatsoever, and is specifically rejected. These Terms and Conditions may be executed in one or more counterparts, each of which shall be deemed to be an original copy of the Agreement, and all of which, when taken together, shall be deemed to constitute one and the same Agreement. Signatures to these Terms and Conditions transmitted by fax, by electronic mail in “portable document format” (“.pdf”), or by any other electronic means intended to preserve the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.