This CUSTOMER AGREEMENT is made and entered by and between Cloud Devs LLC with registered address 16192 costal highway, lewes, Delaware, 19958 USA AND you (“you” or “Customer”), each, a “Party” and, collectively, the “Parties”.
Subject to the conditions set forth herein, Cloud Devs, at its sole discretion, may amend or modifythis Agreement at any time by posting a revised version on Cloud Devs LLC’s Website (“Site”) or by sending notice to the email address associated with you. Notwithstanding the foregoing, your continued use of any of Cloud Devs LLC’s Services after the date any such amendments or modifications become effective constitutes your acceptance of revised Customer Agreement.
WHEREAS, the Customer engages Cloud Devs LLC to provide the Services (“Services”) referred to in paragraph 2
WHEREAS, the Customer is of the opinion that Cloud Devs LLC has the necessary qualifications, experience and abilities to provide services to the Customer and Cloud Devs LLC is agreeable to providing such services to the Customer on the terms and conditions set out in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained Cloud Devs LLC and the Customer hereby agree as follows:
1. Legally Binding Agreement
Cloud Devs LLC provides Services to the Customer through Proprietary Platform (“Platform”) and Project Facilitator Position.
YOU UNDERSTAND THAT BY USING THE PLATFORM OR Cloud Devs LLC’s SERVICES, YOU AGREE TO BE BOUND BY THIS CUSTOMER AGREEMENT, EVEN THOUGH IT IS ELECTRONIC AND IS NOT PHYSICALLY SIGNED BY YOU AND Cloud Devs LLC IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE PLATFOR OR Cloud Devs LLC’s SERVICES. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THE CUSTOMER AGREEMENT IN THAT EVENT, “YOU”, “CUSTOMER” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
2. Cloud Devs LLC’s Services
Cloud Devs LLC is a curated matchmaking platform designed for referring independent contractors who provide software development, design , project management, testing and diagnostics or other professional services (each “Approved Contractor” and the services they provide, the “Works”) to the Customers who are in the process of identifying suitable Approved Contractors.
For that purpose, Cloud Devs LLC provides the following Services:
recruitment of service providers/team members (“Approved Contractors”);
issuing of invoices and consolidated reports;
receiving payments from the Customer on behalf of Approved Contractor;
general project governance via a Project Facilitator position; and
acting as an arbitrator in case of a dispute between the Customer and Approved Contractor.
Project Facilitator is a manager appointed by Cloud Devs LLC whose primary duties are: management of the Customer account; preparing consolidated reports for the Customer; invoicing; receiving payments from the Customer on behalf of Approved Contractor, coordination of the Approved Contractor’s project team; arrangement of regular Customer – project team meetings; management of the project documentation; search for the new Approved Contractors.
3. Arrangements regarding recruitment of service providers/ team members
3.1. Project Team
Cloud Devs LLC will recruit team and enter into negotiations, as specifically approved by the Customer, with Approved Contractors for provision of Works hereunder.
If the Customer is not satisfied on the basis of objective grounds with the Work performed by any of the Approved Contractors, upon Customer’s request Cloud Devs LLC will replace such Approved Contractor in course of 2 months with those having similar qualifications and experience, provided all due invoices are paid in full by the Customer.
3.2. Approved Contractor
Cloud Devs LLC will provide in writing the Customer with sufficient information such as official company profile, team composition and CVs of core specialists to be engaged in performance of Works, initial ballpark effort estimation, general technological solution and examples of relevant projects in portfolios of proposed contractors, regarding each proposed contractor Cloud Devs LLC intends to refer.
The Customer may approve or decline any contractors proposed by Cloud Devs LLC by means of electronic communication (through e-mail).
Upon approval of the contractor, Cloud Devs LLC will enter with good faith into negotiations with such Approved Contractor and facilitate signing of contract between the Customer and Approved Contractor.
The final decision regarding engagement of every team member in performance of Works is subject to the consent of Approved Contractor. Cloud Devs LLC hereby reserves the right to refuse the Customer in engagement of any or all team members in the event such consent has not been obtained.
3.3. Provision of Materials
The Customer agrees to provide Cloud Devs LLC with access to any materials, which Cloud Devs LLC or the Approved Contractor may deem necessary for the purpose of providing the Services.
4. Payment Arrangements
4.1. Cloud Devs LLC is irrevocably authorized and instructed by Approved Contractor to issue invoices for payment due and receive payments from the Customer on behalf of Approved Contractor pursuant to contractual provisions accepted by both the Customer and Approved Contractor, to the extent that the provisions do not, and do not purport to, expand Cloud Devs LLC’s obligations or restrict Cloud Devs LLC’s rights under the Customer Agreement.
4.2. Customer and Approved Contractor are obligated to use Cloud Devs LLC’s Services to pay and receive payment for their Work together if they identified each other through Cloud Devs LLC’s Platform or Cloud Devs LLC’s directors, officers or employees.
5.1. The Parties will use their reasonable endeavours to ensure that the terms of this Agreement take effect.
6.1. This Customer Agreement applies and remains in effect until you no longer are using or accessing the Platform of Services, provided however that all provisions of a continuing nature will survive the termination of this Customer Agreement.
7. WARRANTY DISCLAIMER
7.1. Cloud Devs LLC does not guarantee, and makes no representations as to accuracy of the information provided by independent contractors and made available through the Platform, in particular but not limited to, data included in the company profile and CVs of specialists; availability, qualifications, experience of such specialists or the quality of services they provide.
7.2. Cloud Devs LLC’s PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND Cloud Devs LLC EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
8. Limitation of Liability
8.1. Nothing in this Agreement shall be construed to consider Approved Contractor a subcontractor or employee of Cloud Devs. Cloud Devs LLC cannot be held responsible for the quality of Work delivered by Approved Contractor and/or any breach of law (including intellectual property infringement) by Approved Contractor.
8.2. Cloud Devs LLC does not charge fees for the Customer to access and use the Platform pursuant to this Customer Agreement. In consideration of the free access and use, the Customer agrees that Cloud Devs LLC WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS CUSTOMER AGREEMENT, INCLUDING WITHOUT LIMITATION, CUSTOMER’S USE OR INABILITY TO USE THE PLATFORM OR Cloud Devs LLC’s SERVICES OR ANY INTERRUPTION OF SUCH USE, EVEN IF Cloud Devs LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE).
8.3. Nothing in this Agreement shall operate to exclude or limit either party’s liability for:
death or personal injury caused by its negligence;
any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
the deliberate default or wilful misconduct of that party and its employees; or
any other liability which cannot be excluded or limited under applicable law.
9. Data Protection
Personal Data has the meaning given in the Data Protection Act 1988.
9.1. Cloud Devs LLC warrants that, to the extent it processes any Personal Data on behalf of the Customer:
it shall act only on instructions from the Customer or subject to request from the Approved Contractor; and
it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
Confidential information (the “Confidential Information”): any data or information relating to the Party which discloses it, whether business or personal, which would reasonably be considered to be private or proprietary to that Party and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm to that Party.
10.1. Cloud Devs LLC undertakes not to disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which Cloud Devs LLC has obtained, except as authorised by the Customer or for the performance of the Works by the Approved Contractor.
10.2. The Customer undertakes not to disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Customer has obtained, except as authorised by Cloud Devs.
All written and oral information and materials disclosed or provided by Cloud Devs LLC to the Customer under this Agreement is Confidential Information regardless of how it was provided to the Customer.
11.1. The Customer agrees that during all periods of its access to or use of the Platform or Cloud Devs LLC’s Services and for a period of 1 year after each such access or use, the Customer will not provide or accept services, solicit or seek business in any form or capacity, from any Approved Contractor, or proposed Contractor but not yet approved by the Customer according to terms of this Agreement, to whom the Customer was introduced or referred to in connection with this Agreement without Cloud Devs LLC’s prior written consent.
In the event of a breach of this clause the Customer covenants to pay Cloud Devs LLC liquidated damages, the amount of which shall equal 20 % of total payments made by the Customer to Approved Contractor during the entire time it provided services to the Customer. Such liquidated damages shall be deemed to be a genuine pre-estimate of lost profits which Cloud Devs LLC would reasonably have received had the clause not been violated.
12. GENERAL CONDITIONS
All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing, in English and delivered by post or via email correspondence to Cloud Devs LLC as follows:
Cloud Devs LLC .
16192 costal highway, lewes, Delaware, 19958 USA
A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be removed. Any modification to or removal of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4. Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The paragraph headings in this Customer Agreement are included for ease of reference only and have no binding effect.
12.5. Side Agreements
Notwithstanding paragraph 12.4 (Entire Agreement), Customer and Approved Contractor may enter into any supplemental or other written agreements that they deem appropriate. The terms and conditions of this Customer Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand Cloud Devs LLC’s obligations or restrict Cloud Devs LLC’s rights under this Customer Agreement.
12.6. No partnership
Nothing in this Agreement is intended to, or shall be deemed to establish any partnership or joint venture between the parties.
12.7. Third party rights
A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
12.8. Force Majeure
Neither Party shall be liable for any acts or omissions resulting from a Force Majeure Event. The Party affected by an Force Majeure Event, upon giving prompt notice to the other Party, shall be excused from performance hereunder on a day-to-day basis to the extent of such prevention, restriction or interference (and the other Party shall likewise be excused from performance of its obligations on a day-to-day basis to the extent that such obligations relate to the performance so prevented, restricted, or interfered with); provided that the Party so affected shall use all commercially reasonable efforts to avoid or remove such cause of non-performance and to minimise the consequences thereof and both Parties shall resume performance hereunder forthwith upon removal of such cause.
12.9. Dispute resolution, governing law and jurisdiction
In the event a dispute arises out of or in connection with this Agreement, the Parties will attempt to resolve the dispute amicably.
If the dispute is not resolved within a reasonable period then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration in accordance with the laws of USA and England & Wales.
This Agreement shall be governed by and construed in accordance with the laws of USA and England & Wales.