CloudCard Master Subscription Agreement

Last Revised: 10.30.2023

This Master Subscription Agreement (“Agreement”) is by and between Cloud Card, LLC, a Virginia limited liability company (“CloudCard”) and customer (“Customer”) and is effective as of the date Customer and CloudCard sign an order form (“Order Form”) which references this Agreement (the "Effective Date"). Each Order Form will describe the details of Customer’s CloudCard subscription. In the event of a conflict between this Agreement and the Order Form, the terms of the Order Form will govern.

1. Use Rights; Restrictions.

   1.1 Use Rights. The terms and conditions of this Agreement govern Customer's access and use of CloudCard's online photo submission platform, including its photo submission software platform at www.onlinephotosubmission.com, as well as any of its subdomains and/or any associated domains and/or emails sent from the CloudCard App platform (the “CloudCard App”). Subject to the terms of this Agreement and each Order Form, CloudCard grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right, during the applicable Subscription Term specified in the Order Form, to access and use the CloudCard App for Customer’s internal business purposes. Customer may permit Users to use the CloudCard App and will be responsible for their compliance with this Agreement as well as for all activity that occurs in its CloudCard account(s). Usage is limited to the numbers of Users specified in an Order Form. “Users” means Customer and individuals authorized by Customer to use the CloudCard App, including, but not limited to, Customer's affiliates, employees, consultants, students, and contractors.Customer agrees that its subscription to the CloudCard App is neither contingent on the delivery of any future functionality or features nor dependent on any public comments made by CloudCard regarding the same. Customer is responsible for obtaining access to the Internet and to the equipment necessary to use the CloudCard App, including network security.

   
   Customer will (i) be responsible for the accuracy and legality of, and the means by which Customer acquires, Customer Data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the CloudCard App, and (iii) use the CloudCard App only in accordance with this Agreement and applicable laws and regulations and otherwise comply with applicable laws and regulations in connection with this Agreement. “Customer Data” means all data or information submitted by Users to the CloudCard App.

   1.2 Restrictions. Customer will not (i) make the CloudCard App available to anyone other than Users, (ii) distribute, sell, resell, rent, or lease the CloudCard App, (iii) store or transmit infringing or otherwise unlawful material or store or transmit malicious code or material on the CloudCard App, (iv) interfere with or disrupt the integrity, security, or performance of, or data contained on, the CloudCard App, or (v) disassemble, decompile, reverse-engineer, copy, translate, or make derivative works of or remove any proprietary notices or labels from the CloudCard App.

2. Customer Data.

   2.1 Ownership. As between the parties, Customer owns and retains all rights in, and related to, Customer Data. Customer will collect and maintain any personal data in Customer Data in compliance with all applicable data privacy and protection laws and regulations. Customer grants CloudCard a nonexclusive right to process Customer Data to provide the CloudCard App. Customer may access, export, and retrieve Customer Data at any time during a Subscription Term. Customer will not store or transmit (i) protected health data, as defined in HIPAA, (ii) financial information protected under GLB, (iii) information protected by ITAR, (iv) information subject to PCI Security Standards, or (v) export-controlled matter, in the CloudCard App.

   2.2 Security. CloudCard’s privacy practices can be found at https://onlinephotosubmission.com/privacy-policy, which practices are incorporated herein by reference. CloudCard will maintain industry-standard administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data. Customer agrees that CloudCard may disclose Customer Data (i) when compelled by law or as otherwise required or mandated by law, (ii) to third party service providers that CloudCard retains to provide the CloudCard App, provided that CloudCard has executed a written agreement with such third party service providers requiring them to protect Customer Data to the same extent as set forth in this Agreement, and (iii) as expressly permitted in writing by Customer.

   2.3 Acknowledgements. If Customer (including its Users) modifies or deletes Customer Data in the CloudCard App, Customer understands that such modification or deletion may not be immediately effective. Technologies such as caching may prohibit immediate changes. In addition, the Customer Data may have already been transmitted to or downloaded by Customer and/or its Users. CloudCard has no obligation to review Customer Data, but retains the absolute right, in its sole discretion, to (i) modify, quarantine, or delete Customer Data, and/or (ii) restrict the functionalities of the CloudCard App or suspend, terminate, remove, or deny any User access to the CloudCard App, in each case in the event that CloudCard reasonably believes that any Customer Data or behavior is harmful or objectionable or that there is a violation of this Agreement, intellectual property rights, or applicable laws, or if CloudCard suspects or detects any malicious use of the CloudCard App.

   The CloudCard App may contain links to, integrate with, or provide the ability for Customer or its Users to access third party products, services, or websites. CloudCard shall not be responsible for any such third party products, services, or websites, their availability, or their continued ability to integrate with CloudCard.

3. Ownership & Intellectual Property; Aggregated Data; Feedback.

   3.1 Ownership & Intellectual Property. Except as expressly set forth in this Agreement, Customer shall have no other right (including any ownership or intellectual property right), title, or interest to or in the CloudCard App or any portion thereof. Customer acknowledges that all right, title, and interest in and to the CloudCard App and any revisions, upgrades, updates, derivative works, and other improvements thereto, including, without limitation, all associated intellectual property rights, are owned exclusively, and shall remain owned exclusively, by CloudCard. Except for the limited use rights granted herein by CloudCard to Customer, nothing in this Agreement shall operate as an assignment or other transfer of any of such ownership rights to Customer. The CloudCard name, logo, and product names associated with the CloudCard App are trademarks of CloudCard, and no right or license is granted to Customer to use them. CloudCard, onlinephotosubmission.com, the onlinephotosubmission.com logo, and all other trademarks, service marks, graphics, and logos used in connection with onlinephotosubmission.com, are trademarks of CloudCard or CloudCard’s licensors. Other trademarks, service marks, graphics, and logos used in connection with the CloudCard App may be the trademarks of other third parties. CloudCard reserves all rights not expressly granted to Customer.

   3.2 Aggregated Data. Customer agrees that CloudCard may internally use and modify (but not disclose) Customer Data for the purpose of generating aggregated and de-identified information regarding use of the CloudCard App and that CloudCard may (i) share such information with third parties for marketing purposes and to develop and promote the CloudCard App and other CloudCard offerings, and (ii) use, make available, and retain aggregated and de-identified data for CloudCard’s business purposes, including, without limitation, for improving, testing, and operating the CloudCard App and other CloudCard offerings. CloudCard will never disclose aggregated and de-identified information to a third party in a manner that would identify Customer (including any User) as the source of the information.

   3.3 Feedback. CloudCard owns and has the unrestricted right to use and incorporate into the CloudCard App or other CloudCard offerings, any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, relating to the CloudCard App and/or CloudCard’s business (“Feedback”).

4. Changes & Support; Availability; Accessibility.

   4.1 Changes & Support. CloudCard is constantly updating and improving the services and features of the CloudCard App, and Customer acknowledges and agrees that CloudCard may modify the features and functionality of the CloudCard App, but not materially diminish such features or functionality, during Customer's Subscription Term. Customer shall report any issues with the CloudCard App to CloudCard customer service at support@cloudcard.us, without undue delay, and shall submit a detailed description of the issue, and if that is not possible, a description of the symptoms of the issue. Customer shall also forward to CloudCard any useful information available to Customer for rectification of the issue.

   4.2 Availability. CloudCard will use commercially reasonable efforts to make the CloudCard App available 24 hours a day, 7 days a week, with the exception of (i) planned downtime (of which CloudCard may give advance notice to Customer via the CloudCard website or via email) or emergency downtime, (ii) unavailability due to any acts or omissions of Customer (including its Users), and (iii) Force Majeure Events (defined below).

   4.3 Accessibility. While it is the intention of CloudCard that the CloudCard App be accessible to all people, the parties agree that there are some activities required by the CloudCard App, which are naturally inaccessible to some people with some disabilities including, but not limited to, some visual impairments. Notwithstanding, CloudCard agrees to use commercially reasonable efforts to make the CloudCard App comply with the W3C's Web Content Accessibility Guidelines (WCAG) 2.0 Level AA and the Web Accessibility Initiative Accessible Rich Internet Applications Suite (WAI-ARIA) 1.1. At no time does CloudCard represent, warrant, or guarantee that the CloudCard App complies with these or any other accessibility guidelines.

5. Confidentiality. The parties may exchange Confidential Information in connection with this Agreement. “Confidential Information” or “CI” means all information disclosed by a party (“Discloser”) that should reasonably be understood by the other party (“Recipient”), because of markings, the circumstances of disclosure, or the nature of the information itself, to be confidential to Discloser. CI may be disclosed in writing, electronically, or by any other means. Recipient will (i) take reasonable steps to protect Discloser’s CI from unauthorized access, use, or disclosure similar to those steps it would take to protect its own, similar information, (ii) not disclose CI to any third party, except with the disclosing party’s written consent or as required by applicable laws or regulations, and (iii) not use Discloser’s CI other than in connection with this Agreement. Recipient may disclose CI to its employees, representatives, and other agents (“Representatives”) who have a need to know the CI for purposes of this Agreement, and who are required to protect the CI under the terms of a written agreement with restrictions at least as protective as those herein. CloudCard’s CI specifically includes the CloudCard App and the existence of this Agreement. The parties’ obligations with respect to Confidential Information will survive termination of this Agreement for one (1) year.

6. Fees; Payment. Customer will pay the subscription fees for the CloudCard App set forth in an Order Form. All subscription fees for the CloudCard App will be paid in advance of the applicable Subscription Term. All Order Forms are non-cancelable and all fees are non-refundable, unless otherwise agreed to by the parties. All invoices will be paid by Customer within thirty (30) days of receipt. Invoices that are more than thirty (30) days past due are subject to interest on any outstanding balance of the lesser of one and one half percent (1.5%) per month or the maximum amount permitted by law. Fees under this Agreement do not include any taxes, including, but not limited to, value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. No terms in a Customer purchase order or other order documentation will be incorporated into this Agreement or any Order Form, and all such terms are null and void.

7. Term & Termination.

   7.1 Agreement Term. This Agreement commences on the effective date of the first Order Form between the parties and continues until all subscriptions granted in accordance hereunder have expired or been terminated.

   7.2 Subscription Term. Subscriptions to the CloudCard App commence on the subscription start date and continue for the Subscription Term, both as specified in the applicable Order Form. Following the initial Subscription Term, and unless otherwise agreed to by the parties, the subscription will automatically renew for additional one (1) year Subscription Terms, unless either party gives the other party written notice (email acceptable) of non-renewal at least thirty (30) days prior to the end of the then-current term. Any pricing changes for renewal terms will be reflected on the renewal invoices.

   7.3 Termination. Either party may terminate this Agreement or an Order Form if the other party (i) has not cured a material breach hereof (or thereof) within thirty (30) days of receiving a written breach notice from the other party, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Upon any termination by Customer under 7.3(i), CloudCard will promptly provide Customer a refund of any unused, prepaid subscription fees covering the remainder of the Subscription Term after the effective date of termination. Upon any such termination by CloudCard, Customer will pay any unpaid subscription fees covering the remainder of the Subscription Term(s) of all Order Forms after the effective date of termination.

   7.4 Effect of Termination. Upon any expiration or termination, Customer will immediately cease any further use of the CloudCard App and CloudCard will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter CloudCard will, upon Customer’s written request, delete Customer Data in CloudCard’s systems or in CloudCard’s possession or control, unless legally prohibited. Any terms that by their nature extend beyond expiration or termination of this Agreement will survive.

   7.5 Suspension. In addition to any of its other rights or remedies in this Agreement, CloudCard may, in its reasonable discretion, deactivate Customer’s user name(s) and password and/or suspend provision of the CloudCard App, upon prior written notice to Customer, as the circumstances permit, (i) if Customer is thirty (30) days or more overdue on a payment, (ii) if CloudCard deems such suspension necessary as a result of Customer’s breach of Section 1, (iii) if CloudCard reasonably determines suspension is necessary to avoid material harm to CloudCard (including the security of the systems used to provide the CloudCard App) or its other customers, or (iv) as required by law or at the request of governmental entities.

8. Disclaimers. THE CLOUDCARD APP, INCLUDING ALL SERVERS AND NETWORK COMPONENTS OF CLOUDCARD, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ALL OF WHICH CLOUDCARD EXPRESSLY DISCLAIMS. CLOUDCARD MAKES NO WARRANTY THAT THE CLOUDCARD APP WILL BE ERROR-FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE., NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM CLOUDCARD THROUGH THE CLOUDCARD APP SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER UNDERSTANDS THAT CUSTOMER ACCESSES AND USES THE CLOUDCARD APP AT CUSTOMER’S OWN DISCRETION AND RISK.

9. Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) WILL EITHER PARTY, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, SERVICE PROVIDERS, OR LICENSORS BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, LOSS OF GOODWILL, COST OF COVER OR REPLACEMENT, OR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CLOUDCARD’S AGGREGATE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE PURPOSE OF THIS SECTION IS TO ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY WHICH MAY BE SUBSTANTIALLY HIGHER IF THE PARTIES WERE TO ASSUME ANY LIABILITY OTHER THAN AS SET FORTH HEREIN. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, BUT WILL BE ENFORCED TO THE GREATEST EXTENT SO PERMITTED.

10. Indemnification.

    10.1 CloudCard Indemnification. CloudCard will, at its sole expense, defend and indemnify Customer from any third party claims, demands, or proceedings and pay all damages, fees, and costs that are awarded in a judgment or agreed to in a settlement, arising out of an allegation that the CloudCard App, when used in accordance with this Agreement, infringes the intellectual property rights of such third party. The foregoing obligations will not apply to the extent any such claim is caused by (i) compliance with designs, data, instructions, or specifications provided by Customer, (ii) modification of the CloudCard App by anyone other than CloudCard, or (iii) the combination, operation, or use of the CloudCard App with other products or materials where the infringement would not have occurred but for such combination, operation, or use.

    10.2 Customer Indemnification. Customer will, at its sole expense, defend and indemnify CloudCard from any third party claims, demands, or proceedings and pay all damages, fees, and costs that are awarded in a judgment or agreed to in a settlement, arising out of (i) Customer Data, and (ii) use of the CloudCard App in violation of applicable laws or regulations or this Agreement.

    10.3 Indemnification Procedures. The indemnified party will promptly notify the indemnifying party of any claims subject to indemnification, reasonably cooperate with the indemnifying party, and give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party may not settle a claim unless it unconditionally releases the indemnified party of liability. Sections 10.1 and 10.2 state the indemnifying party’s sole liability to the indemnified parties and the indemnified parties’ exclusive remedy for the claims subject to indemnification identified above.

11. Modifications; Miscellaneous.

    11.1 Modifications. CloudCard may modify this Agreement from time to time. CloudCard will post the modified Agreement to this website and update the Last Revised date above. Customer’s continued use of the CloudCard App following the effective date of any such modification constitutes acceptance by Customer of such modification.

    11.2 Notices. All notices provided to a party under this Agreement may be delivered in writing by (i) a nationally recognized delivery service (e.g., USPS, FedEx, UPS) or U.S. mail to the contact mailing address provided by Customer, or (ii) electronic mail to the electronic mail address provided by Customer to CloudCard. Notice using electronic email to CloudCard shall be made to: support@cloudcard.us. All notices shall be deemed to have been given immediately upon delivery by electronic mail or, if otherwise delivered, upon the earlier of receipt by the notified party or two (2) business days after being deposited in the mail or with a courier as permitted under this Section.

    11.3 Governing Law; Venue; Dispute Resolution. This Agreement and all claims arising hereunder will be governed by the laws of the state of Virginia, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Lynchburg, Virginia. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights or confidentiality (which may be brought in any competent court without the posting of a bond), ANY DISPUTE ARISING UNDER THIS AGREEMENT SHALL BE FINALLY SETTLED IN ACCORDANCE WITH THE ARBITRATION RULES OF AN ARBITRATION SERVICE, WHICH SHALL BE SELECTED BY CLOUDCARD. The arbitration shall take place in Lynchburg, Virginia, in the English language and the arbitral decision may be enforced in any court.

    11.4 Severability; Waiver. If any provision of this Agreement is found to be contrary to law or otherwise invalid or unenforceable, that provision will be modified solely to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.

    11.5 Independent Contractors. The parties are independent contractors. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

    11.6 Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned without the prior written consent of the non-assigning party, which will not be unreasonably withheld, provided that either party may assign this Agreement, and the rights and obligations hereunder, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any assignment in violation of this provision is void and without effect. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties, their successors, and any permitted assigns.

    11.7 Publicity. CloudCard may use Customer’s name and logo solely to identify Customer as a customer of CloudCard on CloudCard’s website and marketing materials, provided such use will be in accordance with any usage guidelines provided to CloudCard by Customer.

    11.8 Force Majeure. Neither party will be responsible for delays or failures to perform (except with respect to payment obligations) caused by circumstances beyond a party’s reasonable control, including, for example, an act of God, an act of government, flood, fire, earthquake, civil unrest, an act of terror, strike or other labor problem, Internet service provider failure or delay, non-CloudCard applications, or denial of service attacks (collectively, “Force Majeure Events”).