1. Definitions

1.1 “AWS” means all services of Amazon Web Services provided by Amazon Web Services.

1.2 “GCP” means all services of Google Cloud Platform provided by Google.

1.3 “Azure” means the cloud services of Microsoft provided by Microsoft.

1.4 “Google Workspace” means Google’s productivity and collaboration tool.

1.5 “Microsoft 365” means Microsoft’s productivity and collaboration tool.

1.6 “CSP(s)” means public Cloud Service Providers such as AWS, Google, and Microsoft that are relevant to this Agreement.

1.7 “Billing” refers to the overall billing system and billing based on the usage of Services.

1.8 “OpsNow” refers to the cloud management platform and services which manages assets and costs of multi-cloud including AWS, GCP, and Azure based on the information provided by the Client, which may be added with a third party’s solution.

1.9 “CTP” means Cloud Trading Platform. CTP is a product module within OpsNow and CTP discount coverage is AWS EC2, Lambda, Fargate, and RDS based on Client’s usage pattern. The discount eligibility and rate will be determined solely by Bespin based upon Client’s AWS usage, AWS Organization structure, usage pattern, and other relevant factors.

1.10 Client or Company is individually referred to as “Party” and collectively as “Parties.”

2. Contract Price and Payment Terms

2.1 The Payment Terms and Amount shall be according to this Agreement. Company undertakes that payment shall be made to CSP(s) in a timely manner. Client shall be entitled at all times to set-off against any fees, any amount owing at any time from the Company to Client.

2.2 If Client does not pay any undisputed invoice due in accordance with the terms of this Order, Client agrees to pay the Company a late payment fee equal to fifteen (15%) per annum until the amount due is paid in full.

3. Scope of the Agreement

3.1 Company, Client, GCP, AWS, and Microsoft are independent contractors under this Agreement.

3.2 Client shall cooperate with Company on the basis of mutual trust for the matters necessary for Company to carry out the Services.

3.3 Client shall comply with all relevant laws and regulations while using the Services.

3.4 CSP(s)’ and/or Company’s technical support can vary depending on the type of CSP’s support plan that Client chooses.

3.5 Client shall accept the relevant terms of service required by CSP(s) which may include Google Cloud Platform Terms of Service, AWS Terms of Service, and/or Microsoft Terms of Service.

3.6 Client and Company may not assign or dispose of their rights and obligations of this Agreement to a third party without the other party’s prior written consent.

4. Confidentiality

4.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limitation, the Parties agree that (i) the Client’s Confidential Information includes non-public portions of the Client Data; (ii) the Company’s Confidential Information includes non-public information regarding the Services; and (iii) Confidential Information of each party includes the terms of this Agreement, pricing and other terms set forth in insertion orders hereunder, as well as marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.

4.2 Protection of Confidential Information. The Receiving Party shall: (i) protect the Disclosing Party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but at a minimum, reasonable care; (ii) limit access to Confidential Information of the Disclosing Party to its and its Affiliates’ employees and contractors who need access for purposes consistent with this Agreement and who have agreed in writing to keep it confidential; (iii) not use, disclose, reproduce, or dispose of the information for any purpose other than to perform the Services; and (iv) destroy or return all information to the Disclosing Party upon expiry or termination of this Agreement, except that (a) The Client may retain and use internally in accordance with the license grant to use the Services such information as is provided to the Client through the Client’s use of the Services, and (b) each party may retain information received from the other party solely as necessary for preservation of legal and business records, provided that all such retained information otherwise remains subject to all terms and conditions set forth in this Article.

4.3 Required Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information when and to the extent required by law, regulation or court order, but only after it, if legally permissible: (a) notifies the Disclosing Party prior to the disclosure; (b) permits the Disclosing Party to seek measures to maintain the confidentiality of its Confidential Information; (c) and gives the Disclosing Party an opportunity to challenge the disclosure.

4.4 Equitable Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief without the necessity of showing actual monetary damages.

4.5 Company and Client shall not disclose the business secrets of the other party found during conclusion and implementation of this Agreement to a third party without the prior written consent of the other. The trade name or logo of the other party does not constitute a trade secret, and the Parties may use it for promotional purposes, but the use thereof shall not impair the reputation of the other party.

4.6 If Company or Client violates Paragraph 1 of this Article, the other party may claim compensation for the damage caused thereby.

4.7 The contents of this Article shall remain valid for one year after the termination of this Agreement.

5. Term and Termination

5.1 This Agreement shall remain in effect for the duration of Initial Term described above plus any renewal terms. After expiry of the Initial Term, the term shall automatically renew each month unless terminated earlier pursuant to the terms of the Agreement.

5.2 Client may by written notice to Company, earlier terminate this Agreement upon the occurrence of any of the following: (a) Forthwith if the Company commits any material breach of any term of this Agreement (which in the case of a breach capable of being remedied) shall not have been remedied within fifteen (15) business days of a written request to remedy the same; or (b) Forthwith if the Company is adjudicated a bankrupt or a petition of bankruptcy is filed against it.

5.3 Company may temporarily suspend Services or terminate this Agreement if Client fails to pay Company any undisputed invoice amount for more than 30 days after the due date.

5.4 Any termination of this Agreement pursuant to the terms of this Agreement shall be without prejudice to any other rights or remedies the Client may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of the Client nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

6. Governing Law and Settlement of Disputes

The Agreement shall be governed by and construed in accordance with the laws of New York. Any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS Rules. The tribunal will consist of one (1) arbitrator. The seat of arbitration will be New York, New York, USA The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

7. Intellectual Property Rights

Company hereby represents and warrants that it has not infringed any third party rights (including, without limitation, trade secrets and intellectual property rights) in connection with the performance of the Services, and there are no other related legal issues.

8. Limitation of Liability

8.1 Notwithstanding any provision contained in this Agreement to the contrary, the aggregate liability of damage for any and all claims, demands, costs, losses, damages or other potential or actual expenses which are in any way related, directly or indirectly, to the execution, performance or subject matter of this Agreement shall not exceed the amount the Client paid in the month immediately prior to the month during which such damage was claimed.

8.2 If any party defaults in any of its obligations under this Agreement, the non-breaching party will be entitled to recover from the breaching party only the actual and direct damages that the non-breaching party may incur on account of such breach. 

8.3 Neither party will be liable to the other party for any indirect, incidental, special, consequential or exemplary damages, even if a party has been advised of the possibility of such damages.

9. Miscellaneous

9.1 The contents of this Agreement shall be regarded as confidential matters described under Article 4 and neither party shall disclose them without the prior written consent of the other party.

9.2 If any provision or part of this Agreement is rendered void, illegal or unenforceable in any respect under any enactment or rule of law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

9.3 The contents set forth in this Agreement are all the agreements made between the Parties in relation to this Agreement. This Agreement and the appendices constitutes the entire Agreement between the Client and the Company and shall supersede all previous agreements, undertakings and oral agreement between the Parties with respect to the subject matter hereof.

9.4 Each party shall enter into this Agreement in an independent position with respect to the other party, and shall not be deemed to be an agent or representative of the other party for any purpose in exercising its rights and fulfilling its obligations under this Agreement. Neither party shall be empowered to impose any actual legal or liability on the other party or to bind the other party on behalf of the other party.

9.5 No delay or neglect on the part of the Client in enforcing against the Company any term or condition of this Agreement or in exercising any right or remedy under this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right or remedy of the Client under this Agreement. No remedy conferred by any of the provisions of this Agreement is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by the Client shall not constitute a waiver by the Client of the right to pursue any other available remedy.

9.6 Company warrants that no applicable rule, law or ordinance of any state or governmental agency will be violated in the performance of the Company’s obligations hereunder. 

9.7 Each Party’s obligations under this Agreement shall be suspended upon the occurrence of a force majeure event including, but not limited to, acts of God, flood, earthquake, fire, explosion, act of government, war, civil commotion, insurrection, embargo, riots, lockouts, labor disputes affecting such Party, for such period as such force majeure event may subsist. Upon the occurrence of a force majeure event, the affected Party shall notify the other Party in writing of the same and shall by subsequent written notice after the cessation of such force majeure event inform the other Party of the date on which that Party’s obligation under this Agreement shall be reinstated. Notwithstanding anything to the contrary set forth herein this Article, upon the occurrence of a force majeure event affecting either Party, and such force majeure event continues for a period exceeding six (6) consecutive months without a prospect of a cure of such event, the other Party shall have the option, at its sole discretion, to terminate this Agreement. Such termination shall take effect immediately upon the written notice to that effect from the other Party to the Party affected by the force majeure event.

9.8 Company shall indemnify and hold harmless and defend Client for and against any loss, claim, cost, expense, fine, penalty, proceedings or actions whatsoever incurred by the Client arising from the Company’s willful or negligent act or omission or breach of this Agreement or in the execution of any portion of the Services. Client shall be entitled to withhold payment pending successful resolution of such claims.

9.9 This Agreement may be amended or modified only by the written agreement of both Parties.