Cloud Academy, Inc., a QA Company

Effective Date: March 10, 2023

This Cloud Academy Software as a Service Agreement (this “Agreement”) is entered into by and between Cloud Academy, Inc. (“Cloud Academy”) and the entity or person placing an order for or accessing the Platform or any Cloud Academy Materials (“Customer”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms entered into by Customer. By indicating acceptance of this Agreement, or by accessing or using the Service, Customer hereby accepts all the terms and conditions of this Agreement on behalf of itself and its Authorized Users. The rights granted under this Agreement are expressly conditioned upon Customer’s acceptance of this Agreement and acceptance of this Agreement by each of Customer’s Authorized Users.

1. Definitions. Capitalized terms used but not otherwise defined in this Agreement have the following meanings:
   1. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Platform under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Platform has been purchased hereunder.
   2. “Cloud Academy Materials” means all materials provided by Cloud Academy to Customer or its Authorized Users through or in connection with the Platform, including without limitation, all related training modules, virtual libraries, user guides, exams, educational materials, and other learning content made available in connection with the Platform.
   3. “Fees” means all charges, costs, and other expenses set forth in an Order Form applicable to Customer’s access and use of the Platform.
   4. “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 use of the Platform, any applicable user limitations, and other commercial terms governing Customer’s use of the Platform.
   5. “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, in each case through which the Cloud Academy Materials are accessed by Authorized Users.
   6. “Third-Party Products” means any third-party products, materials, features, or functionality accessible to Customer through the Platform.
2. Platform Access and Use.
   1. Provision of Access. Subject to and conditioned on Customer’s payment of the Fees and compliance with all other terms and conditions of this Agreement, Cloud Academy hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Platform during the Term (defined in Section 11.1 below), solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use for educational and training purposes.
   2. Restrictions. Customer shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, permit any Authorized Users to: (i) copy, modify, or create derivative works of the Platform or Cloud Academy Materials, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Cloud Academy Materials; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform or Cloud Academy Materials; (v) use the Platform or Cloud Academy Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) use the Platform or Cloud Academy Materials in a manner that imposes an unreasonable or disproportionate load on the Platform or Cloud Academy’s servers, hosting providers, or infrastructure. Customer shall not allow any individual under the age of eighteen (18) years old to use the Platform unless: (i) Customer has received Cloud Academy’s prior written approval, and (ii) Customer and Cloud Academy execute a separate written agreement with additional terms related to the use, collection, and disclosure of information pertaining to individuals under the age of eighteen (18) years old.
   3. Overage. The total number of Authorized Users will not exceed the number set forth in the Order Form. For the avoidance of doubt, the number of Authorized Users, seats, or licenses set forth in the Order Form correspond to the number of named individuals who may access and use the Platform. None of the licenses granted in any Order Form allow concurrent usage by more than one individual person. In addition, no Authorized User may transfer its Access Credentials to another individual except in accordance with Section 2.4 below. On each anniversary of the commencement of the Subscription Term (defined in Section 11) below, Customer shall provide a written report to Cloud Academy identifying the named Authorized Users accessing the Platform in the preceding year and disclosing whether any additional individuals accessed the Platform. Customer shall certify that all information set forth in such report is true and correct. In the event Customer exceeds the permitted number of Authorized Users, or in the event of an unauthorized transfer of Access Credentials, in each case as discovered by Customer from time to time or when discovered as part of the foregoing report and certification process, Customer shall promptly inform Cloud Academy with supporting documentation sufficient for Cloud Academy to determine the amount of the overage. Cloud Academy may, in addition to any other rights or remedies available at law or in equity, invoice Customer for the additional users and scope of use at Cloud Academy’s then-current list price, and Customer shall pay such invoiced amounts within five (5) days of receipt. Without limiting the foregoing, Cloud Academy reserves the right to limit Customer’s or any Authorized Users’ use of the Platform if the bandwidth, usage, or volume used by Customer or such Authorized User significantly exceeds the bandwidth, usage, or volume typically used by other similarly-situated customers. Customer shall not upload more than two (2) hours of custom video per month and if Customer exceeds or seeks to exceed this limit, Cloud Academy reserves the right, at its sole option: (i) to refuse to upload video in excess of two hours; or (ii) to assess additional fees for content in excess of two hours per month.
   4. Access Credentials. Cloud Academy may provide to Customer the necessary access credentials, passwords, or connections (collectively, “Access Credentials”) to allow Customer and its Authorized Users to access the Platform. Alternatively, Cloud Academy may make available to Customer functionality within the Platform for Customer to configure, generate, and issue Access Credentials for its own Authorized Users. In each case, Customer and its Authorized Users must keep all Access Credentials strictly confidential, not share Access Credentials with any third party, and any individual Authorized User may not share its Access Credentials with any other individual, including another Authorized User. Customer is responsible for all activity occurring under any Access Credentials provided to or used by Customer and any of its Authorized Users. Customer may not transfer Access Credentials from one Authorized User to a new Authorized User unless Customer does all of the following: (1) notifies Cloud Academy in writing of its intention to transfer the Access Credentials; (2) receives Cloud Academy’s prior written approval to transfer the Access Credentials; (3) prevents the previous Authorized User from using the Platform or any Cloud Academy materials after the Access Credentials have been transferred; and (4) requires the new Authorized User to comply with all terms and conditions of this Agreement. If Customer makes Access Credentials available to an new individual or replacement Authorized User without strictly complying with the foregoing re-assignment procedure, then Cloud Academy may charge Customer for the overage in accordance with Section 2.3 above and seek all other rights or remedies that may be available to Cloud Academy at law or in equity.
   5. Reservation of Rights. Cloud Academy reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Platform, Cloud Academy Materials, or Cloud Academy’s other copyrights, trademarks, trade secrets, patents, moral rights, or other intellectual property and proprietary rights (collectively, all such rights and materials, the “Cloud Academy Intellectual Property”).
   6. Suspension. Notwithstanding anything to the contrary in this Agreement, Cloud Academy may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Platform or Cloud Academy Materials if: (i) Cloud Academy reasonably determines that (A) there is a threat or attack on any of the Cloud Academy Intellectual Property; (B) Customer’s or any Authorized User’s use of the Platform or Cloud Academy Materials disrupts or poses a security risk to the Cloud Academy Intellectual Property or to any other customer or vendor of Cloud Academy; (C) Customer, or any Authorized User, is using any Cloud Academy Intellectual Property for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Cloud Academy’s provision of the Platform to Customer or any Authorized User is prohibited by applicable law; (F) any vendor of Cloud Academy has suspended or terminated Cloud Academy’s access to or use of any Third-Party Products required to enable Customer to access the Platform; or (G) if Cloud Academy otherwise would have the right to terminate this Agreement as set forth below. Cloud Academy will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a suspension under this section.
   7. Beta & Trial Features. If the Order Form includes a free trial before the start of a paid subscription, and Customer desires not to continue with the paid subscription at the end of the free trial, Customer must notify Cloud Academy of its election not to continue before the expiration of the free trial. Otherwise, at the end of the free trial, Customer will automatically be charged for the paid subscription. Cloud Academy may make available certain new, emerging, temporary, or beta products or features (collectively, “Beta Features”) through the Platform. ALL BETA FEATURES AND PRODUCTS MADE AVAILABLE ON A FREE TRIAL BASIS ARE PROVIDED “AS-IS” AND “AS-AVAILABLE,” AND CLOUD ACADEMY HEREBY DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO SUCH BETA FEATURES AND FREE TRIAL PRODUCTS. CUSTOMER ASSUMES ALL RISKS IN CONNECTION WITH ITS USE OF BETA FEATURES AND FREE TRIAL PRODUCTS. CLOUD ACADEMY MAY TERMINATE CUSTOMER’S ACCESS TO ANY BETA FEATURES, PRODUCTS MADE AVAILABLE ON A FREE TRIAL BASIS, OR BRIDGE SERVICES (DEFINED BELOW) AT ANY TIME WITHOUT NOTICE TO CUSTOMER AND WITHOUT LIABILITY.
   8. Bridge Service. If requested by Customer, Cloud Academy may make available a complimentary technical enabling service designed to improve Customer’s ability to connect to and operate certain Third-Party Services (including hands-on laboratory environments) in connection with the Platform (such enabling service, the “Bridge Service”). The Bridge Service is optional and may be turned off by Customer at any time. THE BRIDGE SERVICE IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” AND CLOUD ACADEMY HEREBY DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO SUCH BRIDGE SERVICE. CUSTOMER ASSUMES ALL RISKS IN CONNECTION WITH ITS USE OF THE BRIDGE SERVICE. THE BRIDGE SERVICE MAY NOT BE SUITABLE FOR ALL CUSTOMERS, AND CUSTOMER SHALL CONDUCT ITS OWN EVALUATION OF AND DILIGENCE REGARDING THE BRIDGE SERVICE TO DETERMINE WHETHER USE OF THE BRIDGE SERVICE IS APPROPRIATE FOR CUSTOMER.
3. Usage Data. Notwithstanding anything to the contrary in this Agreement, Cloud Academy may monitor Customer’s use of the Platform and collect and compile usage and operations data in connection with such use, including query logs, training performance information, and metadata (collectively “Usage Data”). As between Cloud Academy and Customer, all right, title, and interest in Usage Data, and all intellectual property rights therein, belong to and are retained solely by Cloud Academy. Cloud Academy may (i) make Usage Data publicly available in compliance with applicable law, and (ii) use the Usage Data for any purpose to the extent and in the manner permitted under applicable law, including for the purposes of improving the Platform, developing new features of the Platform, marketing the Platform, and suggesting additional training modules or features of the Platform to Customer and its Authorized Users based on Cloud Academy’s analysis of the Usage Data.
4. Customer Responsibilities. Customer is responsible and liable for all uses of the Platform and Cloud Academy Materials resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform, and Customer shall cause Authorized Users to comply with such provisions. Customer is solely responsible for obtaining, maintaining, troubleshooting, and paying for, all software, hardware, and other resources required for Customer and its Authorized Users to access and use the Platform and Cloud Academy Materials, including any communications equipment, electricity, internet or broadband connections, web browsers, computers and other devices required to access and use the Platform.
5. Third-Party Products. Cloud Academy may from time to time make Third-Party Products available to Customer. The Platform may also include links to, functionality to support, or other options for Authorized Users to access Third-Party Products from within the Platform. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions required by the applicable third party offering the Third-Party Product. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. Third-Party Products include, but are not limited to, any hands-on labs and live, working environments provided by third parties by or through the Platform, including without limitation, environments within AWS, Microsoft Azure, and/or Alibaba, including any interfaces, connections or bridge services provided by Cloud Academy in order for Customer to access such hands-on labs or working environments. ALL THIRD-PARTY PRODUCTS ARE PROVIDED “AS-IS” AND “AS-AVAILABLE,” AND CLOUD ACADEMY HEREBY DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO SUCH THIRD-PARTY PRODUCTS. CUSTOMER ASSUMES ALL RISKS IN CONNECTION WITH ITS USE OF THIRD-PARTY PRODUCTS. Customer agrees to use any Third-Party Products solely for internal education and training purposes as part of the Platform.
6. Fees and Payment.
   1. Fees. Customer shall pay the Fees set forth in each Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the applicable Order Form. If Customer fails to make any payment when due, without limiting Cloud Academy’s other rights and remedies: (i) Cloud Academy may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Cloud Academy for all costs incurred by Cloud Academy in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Cloud Academy may suspend Customer’s and its Authorized Users’ access to any portion or all of the Platform and Cloud Academy Materials until such amounts are paid in full. Unless otherwise provided in the Order Form, all Fees are non-refundable.
   2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Cloud Academy’s income.
7. Confidential Information. 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”). Without limiting the generality of the foregoing, all Cloud Academy Materials, as well as the features, functions, algorithms, interfaces, source code, look and feel, and intellectual property comprising the Platform, all constitute Cloud Academy’s 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 and Authorized Users who have a need to know the Confidential Information for Customer to access and use the Platform. 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 Agreement, 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 Agreement.
8. Intellectual Property Ownership; Feedback.
   1. Cloud Academy Property. Customer acknowledges that, as between Customer and Cloud Academy, Cloud Academy owns all right, title, and interest, including all intellectual property rights, in and to Cloud Academy’s Confidential Information, the Platform, Cloud Academy Materials, and other Cloud Academy Intellectual Property. With respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
   2. Customer Data. All personally-identifiable information and other data or content submitted by Customer or its Authorized Users to the Platform (excluding Usage Data) constitutes “Customer Data.” Cloud Academy acknowledges that, as between Cloud Academy and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Cloud Academy a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Cloud Academy to provide the Platform to Customer and the Authorized Users, including, if applicable, disclosing such Customer Data the providers of any Third-Party Products described in Section 5 above. If Cloud Academy’s access or use of the Customer Data involves processing personally-identifiable information of individuals located within the European Union, the parties shall execute Cloud Academy’s Personal Information Processing Agreement.
   3. Feedback. If Customer or any of its employees or Authorized Users sends or transmits any communications or materials to Cloud Academy by mail, email, telephone, or otherwise, suggesting or recommending changes to the Platform or Cloud Academy Materials, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), Cloud Academy is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Cloud Academy on Customer’s behalf, and on behalf of its employees and Authorized Users, all right, title, and interest in, and Cloud Academy is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Cloud Academy is not required to use any Feedback.
   4. Marketing. Customer hereby grants to Cloud Academy an irrevocable, perpetual, fully-paid up, royalty-free, nonexclusive, freely transferable and sublicensable, license to use, display, and reproduce Customer’s name, trade name, logo(s), and trademark(s) in connection with Cloud Academy’s public-facing marketing, promotional, and advertising materials in any form or medium, including without limitation, on Cloud Academy’s website and in customer lists. Customer further agrees that it will participate in and cooperate with Cloud Academy’s reasonable requests to act as a reference customer, participate in a white paper or case study, provide reviews or testimonials, or engage in similar promotional activities both during and after the Term of this Agreement. Except as expressly permitted by this Section 8.4 and as reasonably required to perform or enforce each party’s obligations under this Agreement, neither party shall use the name, logo(s), trade name, or trademark(s) of the other party without such other party’s prior written consent.
9. DISCLAIMER. THE PLATFORM, CLOUD ACADEMY 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 AGREEMENT, 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 PLATFORM, CLOUD ACADEMY MATERIALS, 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLOUD ACADEMY STRICTLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PLATFORM IS NOT DESIGNED FOR, AND CUSTOMER SHALL NOT UPLOAD, TRANSMIT, OR OTHERWISE MAKE AVAILABLE TO CLOUD ACADEMY VIA THE PLATFORM OR OTHERWISE, ANY “HIGHLY REGULATED DATA,” WHICH MEANS ANY (I) INFORMATION SUBJECT TO OR REGULATED BY THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (INCLUDING PROTECTED HEALTH INFORMATION); (II) INFORMATION PERTAINING TO INDIVIDUALS UNDER THE AGE OF 18 YEARS OLD (AND CUSTOMER SHALL NOT PERMIT OR ALLOW ANY INDIVIDUAL UNDER THE AGE OF 18 YEARS OLD TO ACCESS OR USE THE PLATFORM); (III) SENSITIVE CATEGORIES OF DATA, INCLUDING INFORMATION RELATED TO A PERSON’S RACIAL OR ETHNIC ORIGIN, RELIGIOUS OR PHILOSOPHICAL BELIEFS, POLITICAL AFFILIATION OR ACTIVITIES, TRADE UNION MEMBERSHIP, MENTAL OR PHYSICAL HEALTH, SEXUAL ORIENTATION, GENETIC INFORMATION, CREDIT STATUS, MORAL CHARACTER; OR (IV) ANY OTHER INFORMATION OR DATA THAT IS SUBJECT TO HEIGHTENED REGULATORY REQUIREMENTS. ANY SUBMISSION BY CUSTOMER OR ANY AUTHORIZED USER OF HIGHLY REGULATED DATA IS MADE AT CUSTOMER’S SOLE RISK, AND CLOUD ACADEMY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LIABILITY, LOSS, FINES, FEES, EXPENSES, OR OTHER DAMAGES OF ANY KIND, WHETHER DIRECT OR INDIRECT, ARISING FROM OR RELATED TO ANY HIGHLY REGULATED DATA.
10. LIMITATIONS OF LIABILITY. IN NO EVENT WILL CLOUD ACADEMY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CLOUD ACADEMY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CLOUD ACADEMY AND ITS AFFILIATES AND LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO CLOUD ACADEMY UNDER THE SPECIFIC ORDER FORM GIVING RISE TO SUCH LIABILITY IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
11. Term and Termination.
    1. Term.

       (a) The term of this Agreement begins on the date of Customer’s execution of an Order Form referencing this Agreement, or renewal of any previous Order Form entered into after this Agreement becomes effective, and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until for so long as Customer has any active Order Form with Cloud Academy (the “Term”).

       (b) Each Order Form shall commence on the start date set forth therein and terminate on the end date specified therein (the “Initial Subscription Period”), unless earlier terminated in accordance with the provisions of this Agreement. The Initial Subscription Period and each renewal period thereafter shall automatically renew for subsequent renewal periods equal in duration to the Initial Subscription Period (each, a “Renewal Subscription Period”), unless either party provides notice of non-renewal at least sixty (60) days prior to the scheduled renewal date. Together, the Initial Subscription Period and each applicable Renewal Subscription Period constitute the “Subscription Term” of the applicable Order Form. Cloud Academy shall not increase Fees applicable to any Order Form during the initial twelve-month period any Subscription Term. Following the expiration of the initial twelve-month period of the Subscription Term, Cloud Academy may increase Fees once per year, such increase to be effective on each anniversary of the commencement of the Subscription 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 must pay all Fees in full in advance of the date specified by Cloud Academy in order to continue using the Platform and Cloud Materials.

    2. Termination. In addition to any other express termination right set forth in this Agreement, Cloud Academy may terminate this Agreement, 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 Agreement and such breach is incapable of cure; (C) breaches this Agreement 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.
    3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer and its Authorized Users shall immediately discontinue use of the Platform, Cloud Academy Materials, and any other Cloud Academy Intellectual Property to which Customer has access. 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.
    4. Survival. All provisions, which by their nature or context require survival to fulfill their essential purpose, shall survive any expiration or termination of this Agreement, including Sections 3 (Usage Data), 7 (Confidential Information), 8 (Intellectual Property Ownership; Feedback), 9 (Disclaimer), 10 (Limitations of Liability), 11.3 (Effect of Expiration or Termination), and 12 (Miscellaneous). No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. Miscellaneous.
    1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Order Forms, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement 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 Agreement and the provisions of any related Order Form, the provisions of the main body of this Agreement shall control.
    2. Notices. All required notices under this Agreement 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.

    3. Force Majeure. In no event shall Cloud Academy be liable to Customer or any third party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, 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 Agreement or the Order Form, no amendment to or modification of this Agreement or any Order Form 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 Agreement 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 Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    6. Governing Law; Submission to Jurisdiction. This Agreement 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 Agreement 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 Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
    8. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit, place conditions upon, or restrict the export or re-export of the Platform, Cloud Academy Materials, or any Customer Data outside the US, including the United States Export Administration Act (and the regulations thereunder), the International Traffic in Arms Regulations (ITAR), 22 CFR 120 – 130, the Export Administration Regulations (EAR), 15 CFR 730 – 799, and the Foreign Assets Control Regulations (FACR), 31 CFR 500 – 599. Without limiting the foregoing, (i) Customer represents and warrants that neither Customer nor any of its Authorized Users not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not use, and shall not permit its Authorized Users to access or use, the Platform or Cloud Academy Materials in violation of any U.S. export embargo, prohibition or restriction. Customer acknowledges and agrees that the Platform is prohibited for export or re-export to Cuba, North Korea, Iran, Libya, Syria and Sudan or to any person or entity on the U.S. Department of Commerce Denied Persons List, Entity List, or Unverified List, U.S. State Department’s Nonproliferation Sanctions List, or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists, as the foregoing lists are changed from time to time.
    9. US Government Rights. Each of the Cloud Academy Materials and software that constitute the Platform is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Platform and Cloud Academy Materials as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
    10. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 2 or Section 6 hereto would 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.
    11. Order Form Provisions. Customer is not eligible to receive, and Cloud Academy is not obligated to provide, any professional or other services (collectively, “Additional Services”) under any Order Form, except for the right to access and use the Platform and Cloud Academy Materials. In order for Customer to receive any Additional Services, the parties must execute a separate written agreement describing the nature of, and any terms governing, such Additional Services. In addition, Cloud Academy expressly rejects all terms, conditions, and language included in any purchase order, acknowledgement, or other transaction issued by Customer. All such terms are void and shall not constitute part of this Agreement or be binding upon Cloud Academy.
    12. Counterparts. This Agreement 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.