Mundo Pato Inc. Cloud Services Agreement
THIS CLOUD SERVICES AGREEMENT (“Agreement”), executed and effective as of the date of the execution of the Order Form (the “Effective Date”), is made between Mundo Pato Inc., an Oregon corporation located at 8117 SW 35th Avenue, Portland, OR 97219, doing business as UnitusTI (“UnitusTI”), and You (“Client”), each a “Party” and collectively the “Parties.”
A. UnitusTI provides electronic data solutions for educational, treatment, governmental and corporate entities, along with means to store and analyze electronic records (collectively, the “Services” and each a “Service”);
B. Client has developed a program (“Program”), which client is the exclusive owner of the copyrights and trademark rights associated with the same, and is broadly recognized for its innovative approach and treatments (the “Program”);
C. Client wishes to utilize the Services to host the Program and to offer the Program, along with certain of UnitusTI’s services that UnitusTI generally offers to its clients, for subscription to others (the “Hosted Program”);
D. UnitusTI and Client intend to promote the Hosted Program, and for others to access and use the Program made available via subscription to the Hosted Program.
Therefore, in consideration of the mutual covenants set forth in this Agreement, the Parties hereby agree as follows:
1. Agreement Framework
1.1. Cloud Services. This Agreement is intended to serve as a framework for the provision of services to Client. For the duration of the Agreement, the Service will be available for Client’s use pursuant to the terms of this Agreement.
1.2. Deliverables. The Parties may agree to a project or projects in which they, and each of them, provides services, payments, goods or the like to make the Hosted Program available (collectively, the “Deliverables”). A statement describing one or more Deliverables will be attached to this Agreement, providing at a minimum:
(A) Description of the items to be delivered, provided, or made available (a “Deliverable”);
(B) If applicable, a schedule containing the expected delivery date;
(C) Any assumptions, dependency, or constraints; and
(D) If applicable, a payment schedule.
Schedule 1, attached hereto, provides an initial set of Deliverables that the Parties, and each of them, have identified as necessary to this Agreement. Such other exhibits attached may identify future Deliverables, incorporated by reference as described herein and by the terms thereof.
1.3. Change Orders. In the course of providing the Service and preparing the Deliverables the Client may request changes, additional services, or other deliverables. The Client shall provide a request to UnitusTI who may, but is not obligated to, prepare a written budget and scope in response to the request. Assuming the Parties consent, the Parties thereafter will attach to this Agreement a writing signed by each of them consenting to the request, budget and scope (a “Change Order.”). For purposes of this Agreement, “a writing” is broadly construed to include any written, typed, or electronic form of document that the Parties, or each of them, prepare and one Party provides to the other Party, but excludes communications such as text messages, instant messages, and telegraphs.
2.1. Provision of Services. UnitusTI will provide access to and support for Client’s use of the Services during the Term. UnitusTI may delegate the performance of certain portions of the Services to third parties, provided that UnitusTI remains primarily responsible to Client for the delivery and performance of the Services and the Services are not unreasonably interrupted. Services may be interrupted from time to time due to equipment malfunction, updates, maintenance and repair of the website, or other reasons that are beyond UnitusTI’s control. UnitusTI will maintain industry standard availability of the Service, at all times provided that UnitusTI may have planned and unplanned reasonable downtime for maintenance, support, enhancements, repairs and the like.
2.2. HIPAA Compliance. Client acknowledges that, if it is a covered entity, it shall be solely responsible for compliance with HIPAA. UnitusTI shall adhere to industry standards for delivery of cloud services to covered entities throughout the term of the Agreement.
2.3. Client Account Creation. In order to access and use the Services, UnitusTI will provide Client with a master account (“Account”) that permits Client to begin building its online Program and entering data. Registration information provided by the Client must be accurate and complete at all times. Client acknowledges that each person permitted by Client to access the Account will be fully bound by these terms, along with any ancillary terms (such as those provided by the Terms of Service), and that Client will be responsible for the quality of information uploaded to the Account pursuant to this Agreement by authorized users of the Account.
2.4. User Accounts. Client may permit members of Client’s organization, as well as other agents and independent contractors, to access the Services (“Authorized Users”). Client may be required to provide certain personal information for any Authorized Users, and to keep that information updated regularly. Upon receipt of requested information, UnitusTI will promptly provide unique login ID and password permitting Authorized Users to access the Services (“Registration Information”). Authorized Users are responsible for maintaining the confidentiality of Registration Information. Client understands and agrees that it is responsible for the activities or actions that occur under any account reasonably associated with Client’s Authorized Users, whether or not Client authorized such activities or actions.
2.5. Implementation of Services. Client acknowledges that the implementation of the services, and delivery or integration of the Deliverables, is specifically predicated on Client's regular communication with UnitusTI regarding the planning and development of the Deliverables, and UnitusTI consideration and response to these communications. UnitusTI shall not be held responsible for any delay in completion due to Client's failure to timely respond or otherwise communicate with UnitusTI on the subject of the Deliverables. To ensure timely communications between the Parties, UnitusTI and Client agree to respond to any communication, whether by phone, email, or otherwise, within three (3) business days of any communication that requires a response. UnitusTI retains the right to delay the planning and development of the Deliverables to the extent that the Client fails to timely communicate, until timely communications resume.
3. Use of the Services
3.1. Restrictions on the use of Services. Client is responsible for the accuracy, quality, and legality of the Program and Client’s Deliverables, and for the means by which Client acquired any content posted to UnitusTI servers, including but not limited to Client Content, as defined in Section 4.2 below. Client further warrants that Client Content does not and will not knowingly violate third-party rights of any kind, including without limitation any intellectual property rights or rights of publicity and privacy. Client agrees to prohibit Authorized Users from uploading material to UnitusTI servers in violation of the intellectual property rights of any party or entity, and shall maintain and enforce a policy that complies with the Digital Millennium Copyright Act (“DMCA”). Client agrees to act promptly to remove or assist UnitusTI in removing any infringing material if Client or UnitusTI receive a notice qualifying under the DMCA (a “Take-Down Notice”) involving the Hosted Program. In addition, Client agrees not to:
(A) Use any robot, spider, scraper, or other similar automated data gathering or extraction tools, program, algorithm or methodology to search, access, acquire, copy or monitor any portion of the Service;
(B) Run mail list, Listserv, any form of auto-responder, or “spam” processes using UnitusTI’s servers, or use any processes that run or are activated while an Authorized User is not logged in;
(C) Attempt to decipher, decompile, disassemble, or reverse-engineer or otherwise attempt to discover or determine the source code of any software or any proprietary algorithm used, comprising or in any way making up a part of the Service;
(D) Attempt to probe, scan or test the vulnerability of UnitusTI’s website, Services, system or network or breach or impair or circumvent any security or authentication measures protecting the Service;
(E) Frame or mirror the Service;
(F) Use any device, software, or routine that interferes with any application, function, or use of the Service, or is intended to damage, create undue load, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; or
(G) Resell the Service in any way that competes with UnitusTI.
Authorized Users are presumed to be accessing the Services on behalf of Client at all times. Registration Information is unique to each Authorized User and is not transferable to any other person or entity. Client represents and agrees that all Authorized Users will abide by all applicable laws and regulations and any other applicable terms and conditions in connection with the access and use of the Services.
3.2. Other Restrictions on Use. UnitusTI reserves the right at any time with reasonable advance notice to Client to temporarily change the Service hours of operation or to limit Authorized Users’ access to and use of the Services to perform repairs, make modifications, and provide enhancements. UnitusTI may occasionally do so without advance notice as a result of circumstances beyond UnitusTI’s reasonable control. UnitusTI may alter or modify all or part of the Services from time to time, provided such alternatives or modifications do not materially alter the scope of Services provided by UnitusTI pursuant to this Agreement. Such alterations and modifications, or both, may include, without limitation, the addition or withdrawal of features, products, services, software or changes in instructions, provided that this does not result in material decrease in the functionality of the Services, does not diminish the operation of the Hosted Program and does not result in any loss of the Client Content. UnitusTI may, in its sole discretion, add marketplace library programs that complement the Services and make such marketplace library programs available to subscribers, including marketplace library programs from third party program builders. Services may be subject to limitations reasonably designed to allow ordinary use of the Services, including, for example, limits on storage or the number of calls or procedures allowed against the Service infrastructure.
4.1. UnitusTI’s License to Client. Subject to the restrictions and limitations set forth in this Agreement, UnitusTI hereby grants to Client a nonexclusive, nontransferable (except in the case of an assignment permitted under Section 16.6), limited license, during the Term of the Agreement, to use the Services as described herein. Client’s license pursuant to this Agreement is limited to the Account, for purposes of preparing and amending the Hosted Program, and one demo account, as described in Schedule 1.
4.2. Client’s License to UnitusTI. Subject to this Agreement, Client hereby grants to UnitusTI a worldwide, Category exclusive (as described below), royalty-free, revocable, license during the Term to use, store, archive, and index the Program along with client content and any other collateral provided by Client in its providing of the Services during the term of this Agreement and any extension or renewal thereof (collectively, “Client Content”). UnitusTI’s license right does not extend to the sub-license or resale of Client Content or any component thereof except for the express purpose of providing the Hosted Program. For purposes of this license, UnitusTI shall be the exclusive worldwide licensee for electronic delivery, cloud hosting, or to end users of the Client Content and Program (such use the “Category” of exclusive rights). For the avoidance of doubt, Client shall retain all rights, title, and interest in and to all Client Content, including, but not limited to, any and all copyright, trademark, trade secret, trade dress, and patent rights in and to the Client Content, both foreign and domestics), and UnitusTI shall not act in any way to diminish Client’s rights and interests unless otherwise agreed by Client in writing. The provisions of this Agreement and specifically this section 4.2 of the same do not grant UnitusTI any intellectual property license or rights in and to the Client Content except to the extent that this Agreement and this section specifically sets forth UnitusTI’s limited revocable license rights to the Client Content for use only to provide the Services. Furthermore, creation of electronic works containing a small portion of the Client Content or distribution of works containing a small portion of the Client Content by email or download by Client for promotional purposes is permissible. UnitusTI shall not reproduce Client Content in any way except on Client’s behalf as necessary to fulfill the terms of this Agreement.
4.3. Ownership of Content Created During Use of the Services. As stated in Section 4.2, Client shall retain all all rights, title and interest in and to all Client Content, including, not limited to limited to, any and all copyright, trademark, trade secret, trade dress, and patent rights in and to the Client Content, both foreign and domestic To the extent permissible, all Deliverables, in whole or in part, shall be deemed “works made for hire” of UnitusTI and all copyrights in and to the Deliverables will belong exclusively to UnitusTI except to the extent that the Deliverables contain Pre-existing Assets. To the extent the Deliverable are not considered a “work made for hire” Client hereby irrevocable assigns to UnitusTI all of Client’s ownership, right, title, and interest in and to any and all copyrights in and to the Deliverables except to the extent that the Deliverables contain Pre-existing Assets. Pre-existing Assets as used in the preceding sentences shall mean any work product of the Client that was created before the date of this Agreement. To the extent that this Section 4.3 does not provide UnitusTI with full ownership, right, title, and interest in and to the Deliverables, including without limitation, Pre-existing Assets, Client hereby grants UnitusTI a perpetual, irrevocable, fully paid, royalty-free, worldwide license to reproduce, create derivative works from, distribute, publicly display, publicly perform, and use the Deliverables, with the right to sublicense each and every such right; provided UnitusTI may not: (i) reproduce or use Pre-existing Assets other than as components of the Deliverables, (ii) distribute Preexisting Assets, or (iii) sublicense any rights in Preexisting Assets to third parties other than in support of internal business operations. Client shall reasonably assist UnitusTI in obtaining and enforcing copyrights in the Deliverables, at UnitusTI’s expense. The rights granted in this Section 4.3 will survive any termination or expiration of this Agreement or of UnitusTI’s engagement with Client.
4.4. Notwithstanding any other provision of this Agreement, UnitusTI shall retain all right, title and interest in and to, including any intellectual property rights with respect to, the Pre-Existing Assets, which may include (i) any source code, object code, inventions, know-how, materials and information created by UnitusTI prior to the date of this Agreement, or independently of the services under this Agreement, (and any derivative works, modifications and enhancements thereto); (ii) any source code, object code, inventions or know-how created by UnitusTI in connection with the services (or partially in connection with the services) which is generally applicable, non-specific to the Hosted Program, ,the Program or the Client Content and representing functionality already readily available to the public; and (iii) the know-how, business intelligence, software elements and methods utilized by UnitusTI in performing the services that are generally applicable . Third party software tools, if any, included in the Deliverables are licensed by the original firms (e.g. Oracle) and not by UnitusTI. The property rights for those third party development tools are as outlined in those licenses, and UnitusTI will notify Client in advance if any third party software tools are recommended or required which will be installed and licensed by Client.
4.5. Client Feedback to UnitusTI. UnitusTI may solicit, or Client may decide to provide, feedback, comments and suggestions about improvements to the UnitusTI Services (“Feedback”). Such Feedback will be the sole and exclusive property of UnitusTI and Client hereby irrevocably assigns to UnitusTI all right, title, and interest in and to all Feedback. UnitusTI will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind, provided the Feedback does not contain any Client Content or the Program which Client shall retain all rights title and interest in and to the same.
4.6. Trademarks; Publicity; Identification of Other Party. Except for the express rights granted in this Agreement, nothing contained herein shall be deemed to grant either party any right, title, or interest in or to the other’s trademarks. The parties may use the other party’s name or trademark(s) in advertising, written sales promotion, press release(s) and/or other publicity matters, pursuant to any trademark use guidelines of that other party, unless a party specifies in writing that it does not consent to such use. The parties will keep the other party reasonably informed regarding marketing activities. Upon termination of this Agreement, each party shall promptly cease to use the other party’s trademarks. As further provided herein, the Parties intend to promote the Hosted Program to third-parties through use of certain trademarks.
4.7. Other. By way of clarity, Client may publish a book in print or electronically, and hold speaking events and/or training events with regard to any of Client’s intellectual property throughout the term of the Agreement and thereafter with any and all intellectual property rights in and to the same being retained by Client.
4.8. Reservation of Rights. UnitusTI reserves all right, title, and interest in and to the Services provided by UnitusTI to Client including all UnitusTI’s intellectual property rights. No rights are granted to Client other than as expressly set forth herein.
5. Fees and Payment
5.1. Fees. Client shall pay all the fees set forth in this Agreement and any attachments. In consideration of the Services, except as otherwise provided in an attachment, Client shall pay the account creation fees in Schedule 1.
5.2. Invoicing and Payment Terms. Client agrees to provide UnitusTI with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to UnitusTI. If Client provides credit card information to UnitusTI, Client authorizes UnitusTI to charge such credit card for fees for the duration of this Agreement. Additionally, Client will provide complete and accurate billing and contact information to UnitusTI and notify UnitusTI of any changes to such information.
5.3. Overdue Charges. If any charges are not received from Client by the due date, then at UnitusTI’s discretion one or both of the following may occur: (i) 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 day such payment was due until the date paid, and/or (ii) UnitusTI may suspend Client’s access to the Service.
5.4. Taxes. Unless otherwise stated, UnitusTI’s fees do not include any taxes, levies, duties, or similar government charges. Client is responsible and will pay or reimburse all taxes, duties and assessments, if any due, based on or measured by amounts payable to UnitusTI in any transaction between Client and UnitusTI under the Agreement together with any interest or penalties assessed thereon, or furnish UnitusTI with a valid tax exemption certificate authorized by the appropriate tax authority.
6. Hosted Program.
6.1. Availability of Hosted Program. Individual components within the Hosted Program will be made available for sale as they are completed according to the timelines specified in Schedule 1, or as otherwise agreed to in an exhibit signed by both Parties (a “Program Release”). Upon each Program Release, unless provided otherwise in an attached exhibit, UnitusTI will make available a method for third-parties to license and access the Hosted Program via its Service and will contract on behalf of the Parties with third-party subscribers.
6.2. Subscription Payments. UnitusTI may accept payments from customers and will remit to Client a portion of all payments for subscription to the Hosted Program (“Subscription Payments”) within 30 days following the end of the month in which the subscriber payment was received. Unless otherwise specified in an attachment, each Subscription Payment will be 50% of the net revenue received by UnitusTI for third-party subscriptions to the Hosted Program. Client shall not be entitled to any portion of any payment that UnitusTI accepts from any party unrelated to subscriptions to the Hosted Program, such as custom development projects UnitusTI may complete from time to time. In the event a payment received by UnitusTI is later determined not to have been earned, including but not limited to causes such as fraud or refund by UnitusTI, Client will promptly return its portion of that payment.
6.3. Promotion and Marketing. UnitusTI shall make a commercially reasonable effort to promote the Hosted Program and to secure customer subscriptions. UnitusTI shall be responsible for creating marketing campaigns, website and logo relevant to integrative medicine prospective consumers, and maintaining a leads database, and in its discretion may consult with Client regarding such campaigns, leads and prospects. Client shall be responsible for providing UnitusTI with reasonable assistance with UnitusTI’s marketing and promotion efforts, including lead generation. UnitusTI shall be responsible for paying all promotion and marketing expenses incurred by UnitusTI unless otherwise agreed to by the Parties. Notwithstanding any other provision of this Section 6.3, Client acknowledges that UnitusTI makes no warranty as to the results of its promotion and marketing activities. In particular, UnitusTI is not responsible for meeting any sales or marketing quotas and is not obligated to make any specific marketing expenditures, other than those associated with reasonable efforts to promote the Hosted Program and to secure subscriptions. UnitusTI shall exercise its best efforts under this Section 6.3.
6.4. User Support. The Parties recognize that ongoing customer service is necessary to achieve the purposes of this Agreement. The parties will have and maintain sufficient staffing to provide necessary support.
(A) Within 45 days following the Effective Date, Client will designate one or more individuals who are trained in use of the Services and knowledgeable about the Hosted Program. UnitusTI will certify those who, in their reasonable discretion, are knowledgeable about the Services and Hosted Program (a “Certified Team Member”). At all times thereafter, Client shall have a Certified Team Member assigned to provide support during the subscriber’s normal business hours. If at any time Client does not have a Certified Team Member, UnitusTI may, but is not obligated to, select its own support team member(s), and shall invoice Client for the cost of providing support.
(B) UnitusTI will make available training for the Services. The training need not be conducted in person, but can be delivered via an approved online meeting platform. Except as set forth in Schedule 1, UnitusTI will charge a reasonable fee for training. Unless waived by UnitusTI, all individuals that Client designates shall have completed training offered by UnitusTI before being certified.
(C) Client shall respond to support requests from either users or UnitusTI the next business day following receipt. In such response, unless such response includes a resolution to the support matter, Client shall identify the time for a subsequent follow-up. Client will provide notice to UnitusTI on a weekly basis of those support requests that remain outstanding greater than 5 business after receipt. Should a support request be routed directly to UnitusTI, UnitusTI shall notify Client within one week of UnitusTI’s receipt.
(D) If Client fails to provide adequate support staffing, fails to respond to support issues timely, or fails to resolve issues in a commercially reasonable fashion, UnitusTI may, but is not obligated to, select its own support team member(s), and shall invoice Client for the cost of providing support.
6.5. Pricing. In accordance with Section 6.3 above, UnitusTI shall have the sole authority to set the pricing for the Hosted Program. UnitusTI will use its best efforts to consult with Client regarding proposed pricelist changes.
6.6. Co-Branding. Client shall include UnitusTI’s trademark UnitusTI on its website and in its marketing materials for the Hosted Program and will follow UnitusTI’s brand guidance for such use. Client also is responsible for building and maintaining a professional website or webpage(s) for promotion of the Hosted Program which include cross-linking to UnitusTI’s website. In exchange, UnitusTI shall include Client’s trademark, if any, on its website and in its marketing materials for the Hosted Program and will follow Client’s brand guidance for such use, subject to the terms of Section 6.3 of this Agreement.
6.7. Revenue Snapshot & Review. UnitusTI will make available to Client, on a monthly basis, a snapshot of subscriptions, revenue and use arising from the Hosted Program. Such snapshot will be made available no later than 30 days following the end of the month to which the snapshot pertains.
7. Term and Termination.
7.1. Term. Unless specified otherwise in an attachment, the term of the Agreement will commence on the Effective Date and will conclude 36 months from the date the Hosted Program is made available for subscription. The Agreement will renew automatically for a successive one-year term on each anniversary of the Effective Date (the “Renewal Date”) unless earlier terminated in accordance with Sections 7.2, 7.3, or 7.4 below, or by giving the non-terminating party 90 days’ advance written notice of non-renewal prior to the Renewal Date.
7.2. Mutual Termination for Economic Reasons. The Parties intend that this Agreement will produce economic benefit over the full Term, although it may not cover the costs in any given year or years. If, in the collective and unanimous judgment of the Parties, it has not produced and has no likelihood of producing the economic benefit they anticipated, the Parties may mutually agree to an early termination. Both parties must sign to effect such termination, and either party may revoke their signature up to 7 days after signing. If the parties collectively elect to terminate for economic reasons, and unless otherwise provided, the termination shall be effective 60 days following signature of the last Party to sign.
7.3. Termination by Client for UnitusTI’s Breach. Client may terminate the Agreement (i) in the event of a material breach by UnitusTI, but not the reasonable delay of any Deliverable, of any provision of the Agreement and UnitusTI’s failure to cure such breach within 30 days of written notice; or (ii) upon UnitusTI’s bankruptcy, reorganization or assignment for the benefit of creditors.
7.4. Termination by UnitusTI for Client’s Breach. UnitusTI may terminate this Agreement (i) if Client defaults in the timely payment of any agreed upon amounts due and fails to cure within 30 days of receipt of written notice; (ii) immediately if Client breaches any provisions of Section 3.1; (iii) in the event of a breach of any provision of Section 3.2 or material breach by Client of any other provision of the Agreement and Client's failure to cure such breach within 30 days of written notice; or (iv) upon Client’s bankruptcy, reorganization, or assignment for the benefit of creditors. In the case of (iii) above, if cure within 90 days is not commercially reasonable, Client shall be permitted an additional period of up to 90 days to cure on condition that Client provides evidence to UnitusTI of its diligent attempts to cure and provides specific milestones remaining, with committed timelines.
7.5. Effect of Termination. If the Agreement is terminated pursuant to this Section 7, then, unless otherwise specifically provided for in writing by the parties, the following will apply: (i) any license rights granted to Client with respect to the Services will terminate as of the effective date of the termination; (ii) unless otherwise agreed upon by the parties, UnitusTI will have no obligation to provide the Services to Client or its Authorized Users after the effective date of the termination; (iii) Client will immediately pay UnitusTI any amounts payable; (iv) UnitusTI will remit any portion of the shared revenues earned prior to the date of termination within 30 days; and (v) UnitusTI will provide Client and its Authorized Users with access to Client Content until 30 days following the date of termination, at which point such access shall cease. Upon written request of the Client, UnitusTI will delete Client Content, Client’s records, and other data from UnitusTI’s servers.
Unless otherwise agreed between UnitusTI and Client, no refunds of prepaid fees shall be made to Client in connection with any termination. Any suspension or termination will not affect either party’s obligations to the other under this Agreement (including, without limitation, ownership, confidentiality, indemnification and limitation of liability), that by their sense and context are intended to survive such suspension or termination.
In the event of Termination due to Client bankruptcy or reorganization, UnitusTI’s license right to the Program and Client Content shall be continued indefinitely and irrevocably, provided however that all provisions of this Agreement relating to fees and payments and shared revenues shall be inapplicable to such licensed use subsequent to the date of Termination. Client and UnitusTI shall remain obligated for fees and payments and shared revenues accrued prior to the date of Termination. In the event of Client Bankruptcy, UnitusTI shall be granted license to use, without royalty and including the right to sublicense, all Deliverables and Client property in UnitusTI’s possession for the purpose of marketing, providing and delivering the Hosted Program.
7.6. Upon termination of the Agreement by either party, all of Client’s Program and Client Content in the possession and control of UnitusTI will be delivered to Client via downloadable digital file(s) in an industry standard file format.
8. Confidential Information.
8.1. Identification 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 includes Client Content; UnitusTI’s Confidential Information includes the confidential elements of the services; and Confidential Information of each party includes the terms and conditions of this Agreement and all attachments, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does 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 as evidenced by contemporaneous written records.
8.2. 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.
8.3. 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 written 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.
8.4. Injunction. Receiving Party agrees that breach of this Section 8 would cause Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
8.5. Termination and Return. The obligations of Section 8.2 above (Nondisclosure) will terminate 5 years after the termination of this Agreement; provided such obligations related to Confidential Information constituting Disclosing Party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Receiving Party shall return all copies of Confidential Information to Disclosing Party or certify, in writing, the destruction thereof.
8.6. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Except to the extent that another section of this Agreement specifically provides to the contrary, Disclosing Party will retain all right, title, and interest in and to all Confidential Information.
8.7. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(i) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(ii) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
9. Notices. Any notices, statements, or reports required to be given under this Agreement shall be deemed sufficiently given if sent by registered or certified mail or overnight courier service, postage paid:
To Client at the last known address on file.
And to UnitusTI at:
8117 SW 35th Avenue
Portland, OR 97219
10. Delivery & Acceptance. Unless a different procedure for acceptance is set forth in an attachment detailing a Deliverable, Client shall issue to UnitusTI written notice of acceptance or rejection of the Deliverable not later than fifteen (15) days after Client’s receipt of the Deliverables. Should Client fail to issue a written notice, the Deliverables shall be deemed accepted. In the event of rejection of a Deliverable, Client shall give in writing its reasons for rejection in reasonable detail. UnitusTI shall make all reasonable efforts to correct any deficiencies or nonconformities and shall resubmit a corrected Deliverable within fifteen (15) days after receiving proper notice of rejection, unless such deficiency or nonconformity cannot reasonably be corrected within such time. In that case, UnitusTI shall resubmit a corrected Deliverable within a reasonable time in light of the particular deficiency or nonconformity. Client agrees that due to the nature of the Deliverables, hard delivery dates may shift during the course of a project. So long as any delay in delivery is reasonable, UnitusTI will not be in breach of this Agreement for failing to deliver any Deliverable on a date specified.
11.1. Warranties of UnitusTI. UnitusTI represents and warrants that: (a) the Services will be performed in a commercially reasonable manner and representing the skill and experience customary in the industry; (b) it has all necessary rights and authority to execute and deliver this Agreement and perform its obligations hereunder; and (c) neither this Agreement nor UnitusTI's performance of its obligations hereunder will place UnitusTI in breach of any other contract or obligation and will not violate the rights of any third party.
11.2. Warranties of Client. Client represents and warrants that (a) it has all necessary rights and authority to execute and deliver this Agreement and perform its obligations hereunder; (b) neither this Agreement nor Client's performance of its obligations hereunder will place Client in breach of any other contract or obligation and will not violate the rights of any third party; (c) any and all data, information, reports, analysis, artwork, logos, graphics, video, text, Program and other materials supplied by Client to UnitusTI in connection with this Agreement is, to Client's knowledge, accurate, valid and true in all material respects as of the date it is provided to UnitusTI; (d) Client will not use the Service or Deliverables in any manner which is in violation of any law or regulation; and (e) Client will promptly notify UnitusTI in the event of a breach of any obligation under law or regulation.
11.3. CLIENT ACCEPTS ON “AS IS” BASIS EXCEPT WHERE EXPRESSLY ADVISED OTHERWISE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, UNITUSTI EXPRESSLY DISCLAIMS AND CLIENT HEREBY EXPRESSLY WAIVES ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, ALL SERVICES AND DELIVERABLES ARE PROVIDED "AS IS." UNITUSTI IS PROVIDING SERVICES TO ASSIST CLIENT. CLIENT IS RESPONSIBLE FOR REVIEWING THE DELIVERABLES TO ENSURE THEIR ACCURACY AND COMPLETENESS AND FOR THE RESULTS OBTAINED FROM ITS USE OF THE DELIVERABLES. WITH THE EXCEPTION OF UNITUSTI'S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS AS SET FORTH IN SECTION 13, UNITUSTI'S ENTIRE LIABILITY AND CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY IS UNITUSTI'S REPERFORMANCE. UNITUSTI DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNITUSTI WILL NOT BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM CLIENT’S ACCESS TO THE UNITUSTI SITE, USE OF THE SERVICE OR PROVISION OF OTHER DELIVERABLES TO CLIENT, EVEN IF UNITUSTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, UNITUSTI’S LIABILITY FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, EXCEPT FOR UNITUSTI’S INDEMNITY OBLIGATIONS UNDER SECTION 13, WILL AT ALL TIMES BE LIMITED TO THE SUM OF ALL PAYMENTS CLIENT HAS MADE TO UNITUSTI FOR THE SERVICE IN THE LAST TWELVE (12) MONTHS OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER, UNLESS DAMAGE IS OTHERWISE INTENTIONALLY AND UNLAWFULLY PROXIMATELY CAUSED TO CLIENT.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
13.1. UnitusTI’s Indemnity Against Infringement Claims. UnitusTI will defend, at its expense, a third-party action, suit, or proceeding against Client (a “Claim Against Client”) to the extent such Claim Against Client is based upon an allegation that the Service infringes a valid United States patent or copyright, provided that Client (a) promptly gives UnitusTI written notice of the Claim Against Client; (b) gives UnitusTI sole control of the defense and settlement of the Claim Against Client and (c) provides UnitusTI reasonable assistance, at UnitusTI’s expense. In no event shall UnitusTI be obligated to defend Client with respect to any claims based on the combination of the Services with any product not furnished by UnitusTI. In the event of a Claim Against Client, or if UnitusTI reasonably believes the Service may infringe or misappropriate, UnitusTI may, in its sole discretion and at no cost to Client, (i) modify the Service so that they no longer infringe or misappropriate, (ii) obtain a license for Client’s continued use of the Service in accordance with this Agreement, or (iii) suspend Client’s access to the Service, provided that all payments due for the Service shall also be suspended.
13.2. UnitusTI’s General Indemnification. UnitusTI will indemnify, defend and hold harmless Client from and against any and all losses including reasonable attorneys’ fees arising from or relating to any claims or actions arising from or relating to: (i) any claim with respect to the negligence or willful misconduct of UnitusTI or its personnel; and (ii) any third party claim with respect to bodily injury, death or damage to tangible property sustained as a result of the Services or other deliverables.
13.3. Client’s Indemnity Against Infringement Claims. Client will defend, at its expense, a third-party action, suit, or proceeding against UnitusTI (a “Claim Against UnitusTI”) to the extent such Claim Against UnitusTI is based upon an allegation that the Program, or any Client Content, infringes a valid United States patent or copyright, provided that UnitusTI (a) promptly gives Client written notice of the Claim Against UnitusTI; (b) gives Client sole control of the defense and settlement of the Claim Against UnitusTI and (c) provides Client reasonable assistance, at Client’s expense. In no event will Client settle a Claim against UnitusTI without UnitusTI’s written consent unless the settlement unconditionally releases UnitusTI of all liability.
13.4. Client’s General Indemnification. Client will indemnify, defend and hold harmless UnitusTI from and against any and all losses including reasonable attorneys’ fees arising from or relating to any third party claims or actions based on Client’s gross negligence or willful misconduct in performing its obligations under this Agreement.
14. Dispute Resolution. Claims, disputes, or others matters in controversy arising out of or related to the Agreement shall be subject to binding arbitration. The arbitration shall be initiated by submission of the claim to the American Arbitration Association (AAA), with notice to the other party, for hearing by a single arbitrator who shall decide the matter. If the parties are unable to agree on an arbitrator, each party shall appoint an arbitrator and the arbitrators sole responsibility shall be selection of a third arbitrator who shall hear and decide the matter. If the final award is greater than $10,000, the arbitrator shall provide a written statement describing with particularity the grounds for the decision. Discovery for the arbitration shall be limited to document requests. Arbitration shall be the sole dispute resolution method, to the extent allowed by law. Notwithstanding the preceding sentence, any claim for equitable action or injunctive relief may be brought in the appropriate federal or state court to hear such matter at any time and shall not be subject to prior mediation or arbitration requirements.
15. Injunctive Relief. Each party acknowledges and agrees that the obligations and promises of each party under this Agreement are of a unique intellectual character that gives them particular value. Each Party further acknowledges and agrees that its breach of any of the obligations and promises contained in this Agreement may result in irreparable and continuing damage to the other for which there is no adequate remedy at law and, in the event of such breach, such non breaching party will be entitled to seek injunctive relief and/or a decree for specific performance, without having to post a bond, and such other and further relief as may be proper (including monetary damages if appropriate).
16. Other Provisions
16.1. Entire Agreement. This Agreement and any exhibits or attachments incorporated by reference or attached to this Agreement constitute the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter.
16.2. Amendments. The terms of this Agreement represent the entire understanding and agreement between the parties and may only be changed subject to the mutual written consent of the parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and either party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
16.3. Audits. Each Party will maintain records reasonably sufficient to document and record promotion, marketing and subscriptions for the Hosted Program. Client shall have the right to audit UnitusTI’s records relating to the Hosted Program revenue once annually to confirm their accuracy. Client must provide written notice of intent to audit not less than 30 days in advance.
16.4. Severability. If a court of competent jurisdiction finds any term or condition in these Terms to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
16.5. Choice of Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict or choice of law provisions
16.6. 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, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent, of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
16.7. Independent Contractors. Nothing expressed in this Agreement is intended imply or create a partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship.
This Statement of Work (“SOW”) between Mundo Pato, Inc., doing business as UnitusTI (“UnitusTI”) and “Client”, covers the provision of Services and other Deliverables contemplated by the Parties in the Cloud Services Agreement (“Agreement”) executed by both Parties.
1. Services Provided. UnitusTI agrees to provide the Services as described in the Agreement according to the following terms. In the event that the Agreement and this SOW are in conflict, the terms of the Agreement shall govern. All capitalized terms have the meaning provided in the Agreement.
2. Deliverables. UnitusTI shall provide the Deliverables to Client according to an agreed upon timeline. Client and UnitusTI have outlined the Deliverables in Schedule 1, Order Form, and their respective responsibilities in order for UnitusTI to produce the Deliverables. The Parties may agree to amend Schedule 1 only by attaching a Change Order hereto, signed by the Parties.
2.1. Specifically, the Deliverables are: creation of one Master Account and one Demo Account, as listed in the Description field in Schedule 1, Order Form.
3. Fees and Payment. In consideration of the above-provided services, Client agrees to pay the Master Account creation fee of the amount specified in the Order Form upon execution of this Agreement.
4. Other Fees. Client shall pay for any other Services or deliverables under this SOW upon substantial completion of such Services or deliverables. “Substantial completion,” as used in this Section, shall be deemed as the date of delivery of such Service or Deliverable, or the date upon which the service was capable of use by the client to deliver the Hosted Program, notwithstanding any cosmetic redesign requests or “punch list” items that remain incomplete on that date. Payments shall be due 30 days after an invoice is received for such a Service or Deliverable.
5. Split of Revenues. UnitusTI shall pay Client 50% of the net revenue derived from the Hosted Program from each third-party user’s subscription, subject to the terms of the Agreement.
6. Assumptions, Dependencies and Constraints. The following is a list of assumptions, dependencies and constraints that may impact the development and outcome of the Project:
6.1. Client shall respond reasonably promptly to requests and will communicate regularly with UnitusTI.
6.2. All Program and related content to be provided by Client. UnitusTI to provide all graphic design and technical implementation services.
6.3. Client will devote sufficient resources and employees to upload the Program for use in the Hosted Program.
7. Coordination of Efforts / Responsiveness.
7.1. Approvals. Client shall provide timely approvals of Deliverables. By default, approvals should be provided within 15 days, or sooner, of request unless UnitusTI specifies different timing in order to achieve project goals. Failure to provide timely approvals may negatively impact schedule, scope, and cost. When possible, UnitusTI shall notify Client how specific delayed approvals are anticipated to impact Deliverables.
7.2. Project Hold. If Client requests that UnitusTI place a Deliverable on a project hold at any point following the execution of this SOW, UnitusTI shall provide feedback regarding the cost for the requested duration of project hold. The parties acknowledge that there will be costs due to reserving secured resources assigned to the project.
8. Requirements Waiver. If the event that Client achieves an understanding that certain terms or deliverables outlined in this SOW, or in project requirements or other project definitions, are not necessary for the project work, Client shall provide written waiver from the terms of the contract or supporting project definitions that will not be required.
9. Production Schedules. One or more schedules may be attached describing items to be provided by UnitusTI or Client in order to produce the deliverables. These schedules should be understood to clarify and instruct, but do not amend the Deliverables.