Professional Services Agreement

Cloud Academy, Inc., a QA Company

Effective Date: March 10, 2023

This Cloud Academy Professional Services Agreement (“PSA”) is entered into by and between Cloud Academy, Inc. (“Cloud Academy”) and the entity or person placing an order for the Services (“Customer”), each a “Party” and collectively, the “Parties”. This PSA consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the PSA, and any Order Forms or Statements of Work entered into by Customer.

In consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:
  1. PSA Definitions. Capitalized terms used in this PSA but not otherwise defined herein shall have the following meanings.
    1. Cloud Academy Personnel. means all employees and subcontractors and/or affiliates of Cloud Academy, if any, engaged by Cloud Academy to perform the Services.
    2. Cloud Academy Pre-Existing Materials. means the pre-existing materials specified in a Statement of Work, as well as all documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, provided by or used by Cloud Academy in connection with performing the Services, in each case developed or acquired by the Service Provider prior to the commencement or independently of this PSA.
    3. Deliverables” means all documents, work product, and other materials that are delivered to Customer or prepared by Cloud Academy in the course of performing the Services.
    4. Fees” means all charges, costs, and other expenses set forth in an Order Form applicable to Customer’s access and use of the Platform.
    5. Order Form” means any physical, electronic or online subscription order form, as applicable, which is agreed to by Cloud Academy and Customer and further describes the Fees applicable to Customer’s purchase of the Services and other applicable commercial terms.
    6. Platform” collectively means Cloud Academy’s proprietary, cloud-based training platform made available through Cloud Academy’s websites located at cloudacademy.com and app.qa.com (as such locations may be updated from time to time), including without limitation all sub-domains thereof, and Cloud Academy’s related mobile applications.
    7. Services” means the professional and other services to be provided by Cloud Academy as described in more detail in a Statement of Work.
    8. Statement of Work” or “SOW” means each Statement of Work entered into by the Parties describing the Services to be performed to Customer.
  2. Services
    1. Cloud Academy shall provide the Services to Customer as described in more detail in each Statement of Work in accordance with the terms and conditions of this PSA.
    2. Each Statement of Work shall include the following information, if applicable: (a) a detailed description of the Services to be performed pursuant to the Statement of Work; (b) the date upon which the Services will commence and the term of such Statement of Work; (c) the fees to be paid to Cloud Academy under the Statement of Work; (d) Services implementation plan, milestones and payment schedules; any criteria for completion of the Services; and (f) any other terms and conditions agreed upon by the Parties in connection with the Services to be performed pursuant to such Statement of Work.
  3. Cloud Academy Obligations.
    1. Cloud Academy shall:
      1. appoint a Cloud Academy employee to serve as a primary contact with respect to the applicable SOW;
      2. appoint Cloud Academy Personnel, who shall be suitably skilled, experienced, and qualified to perform the Services;
      3. before the date on which the Services are to start, obtain, and at all times during the provision of Services detailed in the applicable SOW, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services; and
      4. comply with all rules, regulations, and policies of Customer that are communicated to Cloud Academy in writing, including security procedures concerning systems and data and remote access thereto.
    2. Cloud Academy is responsible for all Cloud Academy Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers‘ compensation insurance payments, and disability benefits.
  4. Customer Obligations.
    1. Customer shall:
      1. cooperate with Cloud Academy in all matters relating to the Services and appoint a Customer employee to serve as the primary contact with respect to the applicable SOW;
      2. respond promptly to any Cloud Academy request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Cloud Academy to perform Services in accordance with the requirements of the applicable SOW;
      3. provide such information as Cloud Academy may reasonably request in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects; and
      4. procure any necessary Platform licenses required for Cloud Academy to deliver the Services.
    2. If Cloud Academy’s performance of its obligations under this PSA or any SOW is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Cloud Academy shall not be deemed in breach of its obligations under this PSA or the applicable SOW or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
  5. Change Orders. A SOW may be amended by the mutual agreement of the Parties, evidenced by a written Change Order ("Change Order") signed by both Parties. A Change Order will be required if there is a significant change in the scope of the Services to be provided under the SOW. The Change Order will describe any changes in the Services provided by Cloud Academy, any changes in the schedule for completion of any such Services, any changes to the assumptions, dependencies or conditions set forth in the SOW, and any additional Fees for such changes. Each Change Order will act as an amendment to the relevant SOW, and upon its execution, Cloud Academy will provide Services pursuant to the terms of the SOW as modified by the Change Order. Additional costs, if any, associated with each Change Order shall be added to the Fees payable under the applicable SOW. No Change Order shall be effective unless it is in writing and has been signed by both Parties. Any changes made to the Customer‘s requirements, description of work, and/or completion of work, either by Cloud Academy or Customer are null and void unless documented and signed and dated by the Parties.
  6. Term and Termination..
    1. Term of this PSA. The term of this PSA begins on the date indicated in a SOW, or if not so indicated, then upon Customer’s execution of an Order Form referencing this PSA and, unless terminated earlier pursuant to the SOW or this PSA’s express provisions, will continue in effect thereafter until the completion of the Services under all Statements of Work (the “Term”).
    2. Term of each Statement of Work. Each SOW shall commence on the start date set forth therein and terminate on the end date specified therein (the “Initial Service Period”), unless earlier terminated in accordance with the provisions of this Agreement. Certain Services are of an ongoing, indefinite duration, and the SOW may allow for renewal periods after the Initial Service Period. The Initial Service Period and each renewal period thereafter shall automatically renew for subsequent renewal periods equal in duration to the Initial Service Period (each, a “Renewal Service Period”), unless either party provides notice of non-renewal at least sixty (60) days prior to the scheduled renewal date. Together, the Initial Service Period and each applicable Renewal Service Period constitute the “Service Term” of the applicable SOW. Cloud Academy shall not increase fees applicable to any SOW during the Initial Service Period. Following the expiration of the Initial Service Period, Cloud Academy may increase fees once per year, such increase to be effective on each anniversary of the commencement of the Service Term, by providing notice to Customer no later than sixty (60) days in advance of the date on which such increased Fees shall take effect. Customer will pay all fees and expenses up through the effective date of termination or expiration of a SOW.
    3. Termination. Cloud Academy may terminate this PSA or any and all SOWs, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder and such failure continues more than ten (10) days after Cloud Academy’s delivery of written notice thereof; (B) breaches this PSA and such breach is incapable of cure; (C) breaches this PSA and such breach is capable of cure but remains uncured thirty (30) days after the Cloud Academy provides the Customer with written notice of such breach; (D) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (E) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (F) makes or seeks to make a general assignment for the benefit of its creditors; or (G) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    4. Effect of Termination. Upon expiration or termination of this PSA for any reason, Customer shall (i) return to Cloud Academy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Cloud Academy’s Confidential Information, (ii) permanently delete all of Cloud Academy’s Confidential Information from its computer systems, and (iii) upon Cloud Academy’s written request, certify in writing that it has complied with the requirements of this clause. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination or entitle Customer to any refund.
  7. Fees and Expenses.
    1. In consideration of the provision of the Services by Cloud Academy and the rights granted to Customer under this PSA, Customer shall pay the Fees set forth in the applicable Order Form and/or Statement of Work. Payment to Cloud Academy of such Fees and the reimbursement of expenses pursuant to this Section 7 shall constitute payment in full for the performance of the Services, and Customer shall not be responsible for paying any other fees, costs, or expenses.
    2. Customer agrees to reimburse Cloud Academy for all reasonable travel and out-of-pocket expenses incurred by Cloud Academy in connection with the performance of the Services that have been approved in advance in writing by Customer.
  8. Limited Warranty.
    1. Cloud Academy warrants that it shall perform the Services (a) in accordance with the terms and subject to the conditions set out in this SOW and the PSA; (b) using Cloud Academy Personnel of industry standard skill, experience, and qualifications and (c) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services
    2. Cloud Academy’s sole and exclusive liability and Customer‘s sole and exclusive remedy for breach of this warranty shall be to reperform any breaching component of the Service.
    3. The foregoing remedy shall not be available unless Customer provides written notice of such breach within 20 days after performance of such Service by Cloud Academy.
    4. Conditions Voiding Warranty. Cloud Academy’s exclusive warranty, and the remedy provided for breach thereof, shall not apply to damage or deficiencies resulting from accident, alteration, modification, foreign attachments, misuse, tampering, negligence, improper maintenance or abuse.
    5. CLOUD ACADEMY MAKES NO WARRANTIES FOR THE SERVICES EXCEPT FOR THAT PROVIDED IN THIS SECTION 8. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 8, THE SERVICES, DELIVERABLES, CLOUD ACADEMY PRE-EXISTING MATERIALS, AND OTHER CLOUD ACADEMY INTELLECTUAL PROPERTY ARE ALL PROVIDED “AS-IS,” AND CLOUD ACADEMY AND ITS AFFILIATES AND LICENSORS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES ARISING OUT OF OR RELATED TO THIS PSA, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CLOUD ACADEMY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CLOUD ACADEMY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DELIVERABLES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  9. Limitation of Liability.
    1. IN NO EVENT WILL CLOUD ACADEMY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. IN NO EVENT WILL CLOUD ACADEMY’S LIABILITY ARISING OUT OF OR RELATED TO THIS PSA, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CLOUD ACADEMY IN THE TWELVE MONTH PERIOD UNDER THE APPLICABLE STATEMENT OF WORK PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  10. Confidentiality. From time to time during the Term, Cloud Academy may disclose or make available to Customer information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Customer shall not use or disclose the Cloud Academy’s Confidential Information to any person or entity, except to the Customer’s employees who have a need to know the Confidential Information for Customer to make use of the Deliverables and Services. If, upon the advice of counsel, Customer is required to disclose Cloud Academy’s Confidential Information in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, then Customer shall first give written notice to Cloud Academy and make a reasonable effort to obtain a protective order prior to such disclosure. On the expiration or termination of the PSA, Customer shall promptly return to Cloud Academy all copies, whether in written, electronic, or other form or media, of Cloud Academy’s Confidential Information, or with Cloud Academy’s written consent, destroy all such copies and certify in writing to Cloud Academy that such Confidential Information has been destroyed. Customer’s obligations of non-use and non-disclosure with regard to Confidential Information will survive the termination or expiration of this PSA.
  11. Intellectual Property. Cloud Academy and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Cloud Academy Pre-Existing Materials, including all intellectual property rights therein. To the extent that Cloud Academy incorporates any of Cloud Academy Pre-Existing Materials into the Deliverables, and effective upon full and final payment by Customer for the Deliverables required by a SOW, Cloud Academy hereby grants to Customer a royalty-free, non-exclusive, nontransferable, internal use license to use such Cloud Academy Pre-Existing Materials solely in connection with Customer’s use of the Deliverables in accordance with any limitations set forth in the applicable SOW. Nothing in this PSA shall be deemed to permit Customer to disclose, provide access to, sublicense, disassemble, decompile, reverse engineer, modify or transfer any Cloud Academy Materials to a subsidiary, affiliate, or third party without the prior, written consent of Cloud Academy. The foregoing license grant does not (unless expressly identified in a SOW) encompass any third party tools which Cloud Academy may use in connection with the Services. All other rights in and to the Cloud Academy Pre-Existing Materials are expressly reserved by Cloud Academy.
  12. Customer’s Indemnity. Cloud Academy shall have no responsibility for, and Customer hereby agrees to indemnify, hold harmless and defend Cloud Academy (including its affiliates and officers, directors, and employees) from and against all Liabilities incurred by or asserted against Cloud Academy in connection with any third party claim to the extent such claims result from the use of: (i) the Deliverables other than in accordance with applicable documentation or instructions supplied by Cloud Academy or for other than Customer’s internal purposes; (ii) any altered, modified or revised version of the Deliverables that was not expressly authorized in writing by Cloud Academy; (iii) Customer’s failure to use or implement corrections or enhancements to the Deliverables made available by Cloud Academy; or (iv) Customer’s distribution, marketing, or use of the Deliverables for the benefit of any third party. In the event that Customer provides Cloud Academy with access to software, specifications, content or other Customer-provided materials (“Customer Materials”), Customer hereby agrees to indemnify, hold harmless and defend Cloud Academy from and against any and all liabilities incurred by or asserted against Cloud Academy in connection with any third party claim to the extent such liabilities result from an allegation of infringement of any third party‘s trade secret, trademark, copyright or patent rights by the Customer Materials.
  13. Miscellaneous.
    1. Entire Agreement. This PSA, together with any other documents incorporated herein by reference and all related Order Forms and SOWs, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this PSA and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict or inconsistency between the provisions of the main body of this PSA and the provisions of any related Order Form or SOW, the provisions of the main body of this PSA shall control.
    2. Notices. All required notices under this PSA must be in writing and addressed to the Parties at the addresses set forth below (or to such other address that may be designated by the party giving notice from time to time in accordance with this Section). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Cloud Academy may provide certain notices to Customer via email as well.

      If to Cloud Academy: Cloud Academy, Inc.

      5214F Diamond Heights Blvd. #157 San Francisco, CA 94131 Attn: Legal legal@cloudacademy.com

      If to Customer: The address set forth in the applicable Order Form or SOW.

    3. Force Majeure. In no event shall Cloud Academy be liable to Customer or any third party, or be deemed to have breached this PSA, for any failure or delay in performing its obligations under this PSA, if and to the extent such failure or delay is caused by any circumstances beyond Cloud Academy’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, internet or communications failures, electrical or power disturbances, failures by suppliers and third-party hosting providers, malicious acts of third parties, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    4. Amendment and Modification; Waiver. Except as expressly permitted by this PSA or the Order Form or SOW, no amendment to or modification of this PSA or any Order Form or SOW is effective unless it is in writing and signed by an authorized representative of Cloud Academy. No waiver by Cloud Academy of any of the provisions hereof will be effective unless explicitly set forth in writing and signed Cloud Academy. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this PSA will operate or be construed as a waiver thereof, and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    5. Severability. If any provision of this PSA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this PSA or invalidate or render unenforceable such term or provision in any other jurisdiction.
    6. Governing Law; Submission to Jurisdiction. This PSA is governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of North Carolina. Any legal suit, action, or proceeding arising out of or related to this PSA or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of North Carolina, in each case located in the city of Raleigh, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. This section will not be construed to limit or reduce Cloud Academy’s ability to seek and receive injunctive relief from any court of competent jurisdiction, regardless of the location of such court.
    7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Cloud Academy. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve Customer of any of its obligations hereunder. This PSA is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    8. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 10 hereto could cause Cloud Academy irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Cloud Academy will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    9. Non-Exclusivity. Cloud Academy retains the right to perform the same or similar type of services for third parties during the Term of this PSA and indefinitely thereafter.
    10. Counterparts. This PSA may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.