POD Services Master Services Agreement

This Cloud Nerd POD Services Master Services Agreement (these “Terms” or this “Agreement”) is issued by Cloud Nerd, Inc, a Texas corporation, with an office at 600 Congress Avenue, Floor 14, Austin, Texas 78701 (“Service Provider”). This Agreement governs each Order Form that references it. By executing or accepting an Order Form that references this Agreement, the customer identified in that Order Form (“Customer,” and together with Service Provider, the “Parties” and each a “Party”) agrees to be bound by this Agreement as in effect on the effective date of that Order Form.

1. Definitions

Capitalized terms have the meanings set forth below. Additional defined terms may appear elsewhere in this Agreement or in any Order Form.

1.1 “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party.

1.2 “Applicable Law” means all federal, state, and local laws, statutes, regulations, rules, and ordinances of the State of Texas and the United States applicable to the Services.

1.3 “Business Day” means any day other than a Saturday, Sunday, or federal or Texas state holiday.

1.4 “Confidential Information” has the meaning set forth in Section 10.

1.5 “Customer Contract Manager” means the individual designated by Customer under Section 4 as its primary point of contact and authorized representative for the Services.

1.6 “Customer Materials” means any data, content, credentials, source code, documentation, specifications, systems access, and other materials provided or made available by or on behalf of Customer to Service Provider in connection with the Services.

1.7 “Deliverables” means the tangible or intangible work product produced by Service Provider in the course of resolving Tickets, including code, configurations, scripts, workflows, designs, reports, and documentation delivered through the Service Platform.

1.8 “Fees” means the amounts payable by Customer to Service Provider for access to the Services, as set forth in each Statement of Work.

1.9 “POD or Pod” means Service Provider’s technology-agnostic delivery team, the composition, size, roles, personnel, working hours, and internal allocation of which are determined solely by Service Provider. Customer’s bargain under this Agreement is for access to the Pod’s Services under the Serial Work Model described in Section 3, and not for any specific individuals, headcount, hours, availability windows, or capacity.

1.10 “Service Platform” means the third-party ticketing and collaboration system designated by Service Provider from time to time (as of the Effective Date, ClickUp) through which all Services are ordered, tracked, prioritized, delivered, and communicated, as further described in Section 9.

1.11 “Serial Work Model” means Service Provider’s exclusive method of performing the Services, under which the Pod works on Tickets one (1) at a time in the priority order set by Customer through the Service Platform, as further described in Section 3.

1.12 “Service Period” means the term of Services under a given Order Form.

1.13 “Services” means the software implementation managed services described in Section 3 and any Order Form, delivered by Service Provider through the Pod under the Serial Work Model.

1.14 “Order Form” means the ordering document (which may be a proposal, quote, order form, or online order confirmation) executed or accepted by both Parties — including by signature, electronic signature, or online acceptance — that references this Agreement and describes the specific Services, Plan, Point Floor, subscription Fees, Service Period, in-scope technologies (if any), and other engagement-specific terms.

1.15 “Third-Party Materials” means software, services, data, licenses, or content provided by any party other than Service Provider, including cloud platforms, SaaS applications, ISV apps, open-source components, AI tools not owned by Service Provider, and Customer-supplied materials.

1.16 “Ticket” means a discrete work request submitted by Customer through the Service Platform that meets the requirements of Section 3.4.

1.17 “Ticket Queue” means the ordered list of Customer-submitted Tickets awaiting Service Provider action, as maintained in the Service Platform.

1.18 “Restricted Data” means (a) personally identifiable information relating to Customer's customers, employees, or other individuals; (b) Customer's confidential or proprietary business information, including financial data, trade secrets, pricing, and strategic or business plans; (c) login credentials, API keys, tokens, or other access secrets; and (d) any other data Customer designates in writing as Restricted Data.

1.19 “Ticket Size” means the complexity tier assigned to a Ticket by mutual agreement of the Parties, as set forth in Section 3.5(a). Ticket Sizes are: Small (1 point), Medium (2 points), Large (4 points), and Extra-Large (8 points).

1.20 “Point Floor” means the minimum aggregate Ticket Size points Service Provider guarantees to deliver over a given Measurement Period, as set forth in the applicable Order Form.

1.21 “Measurement Period” means each three (3) month period of the Service Period, or the full Service Period if shorter than three (3) months.

2. Structure of the Engagement

2.1 Framework Agreement

This Agreement sets forth the general terms governing the relationship between the Parties. Specific engagements are ordered through one or more Order Forms that reference and incorporate this Agreement. This Agreement, by itself, does not obligate either Party with respect to any engagement; the Parties’ rights and obligations for a given engagement arise only upon execution or acceptance of the applicable Order Form. Each Order Form is a separate contract between Service Provider and the Customer identified in it.

2.2 Order of Precedence

In the event of any conflict between documents: (a) the express terms of a fully executed Order Form control over this MSA solely for that Order Form, and only where the Order Form expressly identifies by section number the MSA provision it modifies; and (b) this MSA controls over any Service Platform configuration, ticket template, workflow rule, exhibit, or attachment. No Service Platform configuration, ticket template, workflow rule, exhibit, attachment, email, or Order Form provision modifies Sections 8 (Warranties/Disclaimers), 10 (Confidentiality), 11 (Indemnification), 12 (Limitation of Liability), 16 (Governing Law and Venue), or 17 (Dispute Resolution) unless the modification is contained in a separately signed written amendment that specifically references those Sections by number and expressly states the intent to modify them.

2.3 No Minimum Purchase

This MSA does not itself commit either Party to purchase or provide any Services absent a signed Order Form.

2.4 Incorporation; Modification of Terms

1. (a)Incorporation. Each Order Form incorporates this Agreement by reference as of that Order Form’s effective date, and this Agreement as then in effect governs that Order Form and its Service Period for the duration of that Service Period.
2. (b)Updates. Service Provider may revise this Agreement from time to time by posting an updated version at its website with a new “Last Updated” date. Revisions apply prospectively to new and renewal Order Forms entered into after the posting date; they do not alter the terms governing an active, already-executed Order Form’s Service Period unless the Parties agree otherwise in writing.

3. Services and Serial Work Model

3.1 Services

Service Provider will provide to Customer the services (the “Services”) set forth in one or more Order Forms issued by Service Provider and accepted by Customer, and delivered by the Pod under the Serial Work Model.

3.2 Scope of Services

The Services consist of software implementation managed services for any software system identified in an Order Form, which may include, without limitation:

1. (a)Custom software development and implementation.
2. (b)Software configuration and optimization.
3. (c)System integration and API development.
4. (d)Feature enhancement and modification.
5. (e)Defect remediation and troubleshooting.
6. (f)Routine software maintenance and updates.
7. (g)Technical consulting and advisory services.

The Services are technology-agnostic; no specific platform, vendor, or product is warranted to be within scope unless expressly identified in an Order Form.

3.3 Service Platform

All Services are ordered, tracked, and delivered exclusively through the Service Platform. Customer may submit an unlimited number of Tickets through the Service Platform for work within the scope of an active Order Form, subject to the Serial Work Model and the exclusions in Section 3.8. Service Provider has no obligation to accept, respond to, or perform work requested through any channel other than the Service Platform (including email, telephone, chat, SMS, or in-person requests).

3.4 Ticket Requirements

Each Ticket must contain, at minimum:

• A clear and detailed description of the requested work.
• Written acceptance criteria and success metrics.
• All assets, documentation, credentials, environments, and access rights reasonably necessary to perform the work.
• A Customer-assigned priority level.
• An estimated complexity or business context, if known to Customer.

A Ticket that does not meet the requirements of this Section 3.4 is deemed “not ready” and will remain in the Ticket Queue without advancing until Customer supplies the missing information. Service Provider has no liability for delay caused by a not-ready Ticket, and Fees continue to accrue during any such delay.

3.5 Point Floor Guarantee

1. (a)Sizing. Upon a Ticket becoming ready under Section 3.4, Service Provider will propose a Ticket Size, in its sole discretion, from the following tiers: Small (1 point), Medium (2 points), Large (4 points), Extra-Large (8 points). Service Provider will post the proposed Ticket Size in the Service Platform within one (1) Business Day of the Ticket becoming ready. A Ticket does not become the active Ticket, and work does not begin, until the Ticket Size is agreed by both Parties in the Service Platform. Customer will accept or dispute the proposed Ticket Size within two (2) Business Days of posting. If Customer disputes the proposed size, the Parties will confer in good faith to reach agreement. If Customer does not respond within two (2) Business Days, the proposed Ticket Size is deemed accepted. Time elapsed while a Ticket Size is under discussion and not yet agreed does not count against the Point Floor in Section 3.5(b), and is treated as a not-ready Ticket under Section 3.4 for purposes of delay and Fee accrual.
2. (b)Floor. Service Provider guarantees delivery of not less than the number of Ticket Size points specified in the applicable Order Form, aggregated across each Measurement Period (“Point Floor”). “Delivery” for purposes of this Section means Tickets marked complete or deemed accepted under Section 3.10 during the Measurement Period.
3. (c)Single-Ticket Cap. No single Ticket may count for more than 50% of the Point Floor for any Measurement Period, regardless of its assigned Ticket Size. Points from a Ticket in excess of this cap roll forward and count toward the following Measurement Period’s Point Floor.
4. (d)Exclusions. Time and points lost to Customer-caused delay (Section 4.4), not-ready Tickets (Section 3.4), or force majeure (Section 18.5) do not count against the Point Floor, and the Measurement Period is extended day-for-day for any such delay. In addition, no Point Floor shortfall exists, and no remedy under Section 3.5(e) or refund under Section 6.2(d) is owed, to the extent the shortfall results from Customer submitting, prioritizing, or maintaining ready Tickets in the Ticket Queue with an aggregate agreed Ticket Size of fewer points than the Point Floor. Service Provider’s obligation is to deliver against the Tickets Customer makes available; Customer is solely responsible for keeping the Ticket Queue supplied with ready Tickets sufficient to reach the Point Floor.
5. (e)Remedy for Shortfall. If Service Provider fails to meet the Point Floor for a Measurement Period, Service Provider will, at its election: (i) apply the shortfall as additional guaranteed points to the following Measurement Period at no additional charge; or (ii) if the shortfall is not cured by the end of the Service Period, issue a pro-rata refund under Section 6.2(d). This Section 3.5(e) and Section 8.2 together state Customer’s exclusive remedy for any shortfall in delivered Ticket Size points.

3.6 Serial Processing (One Ticket at a Time)

The Pod works on Tickets serially, one (1) Ticket at a time, and does not work on multiple Tickets in parallel. A Ticket remains the active Ticket until Service Provider marks it complete in the Service Platform or Customer approves a defined milestone that permits Service Provider to move to the next Ticket. Subject to the Point Floor guarantee in Section 3.5, Customer expressly acknowledges that this is a strict serial-delivery model: Service Provider makes no commitment as to concurrency, throughput, velocity, hours worked per week, resource allocation, Pod headcount, individual availability, response time beyond Section 3.9, or delivery date for any Ticket. All such matters are within Service Provider’s sole operational discretion, except as expressly limited by Section 3.5.

3.7 Customer Prioritization Authority

Customer retains sole authority to prioritize Tickets in the Ticket Queue and is solely responsible for the ordering of the Ticket Queue. Service Provider will work on Tickets in the order set by Customer in the Service Platform. Customer may re-prioritize any Ticket that has not yet become the active Ticket at any time; once work on a Ticket has commenced, Customer may not re-prioritize that Ticket except by written agreement with Service Provider, which may be granted or withheld in Service Provider’s reasonable discretion. Customer assumes all business and operational risk arising from its prioritization decisions and from any Ticket that goes unaddressed because Customer placed higher-priority Tickets ahead of it.

3.8 Excluded Services

The Services expressly exclude the following, and no Ticket requesting any of them creates any obligation on Service Provider absent a separately signed Order Form addressing them:

• Hardware procurement, installation, staging, or physical work of any kind.
• Third-party software, SaaS, or cloud licensing, procurement, or resale.
• Data migration services not directly related to a specific software implementation Ticket.
• End-user or administrator training beyond delivery of standard written documentation.
• Services requiring specialized industry certifications, licenses, or clearances not then held by Service Provider or the assigned Pod members.
• Regulated activities (including but not limited to activities requiring a professional engineering, legal, medical, accounting, or financial-advisory license).
• Development, deployment, or operation of software intended to serve as a life-safety, medical device, avionics, nuclear, or other high-risk system where failure could reasonably be expected to cause death, personal injury, or catastrophic property or environmental damage.
• Any work Service Provider determines, in its reasonable judgment, would violate Applicable Law, third-party rights, or Service Provider's professional or ethical standards.

3.9 Service Level Commitments

Service Provider will use commercially reasonable efforts to:

• Acknowledge receipt of each properly submitted Ticket in the Service Platform within one (1) Business Day.
• Post reasonable progress updates in the Service Platform during work on the active Ticket.
• Complete each Ticket within a commercially reasonable timeframe based on its complexity, dependencies, and position in the Ticket Queue.
• Deliver work product in the format reasonably requested by Customer when technically feasible.

The commitments in this Section 3.9 are service-level targets, not guarantees or warranties, except for the Point Floor guarantee in Section 3.5, which is a binding commitment. They are the sole and exclusive statements of Service Provider’s performance obligations regarding timing, and no other timing commitment (whether oral, written, implied, or inferred from a Ticket, Service Platform notification, or communication) is binding on Service Provider. Customer’s exclusive remedy for a missed target under this Section 3.9 is the remedy set forth in Section 8.2, if any.

3.10 Review and Deemed Acceptance

Customer will have five (5) Business Days from Service Provider’s delivery of work product for a Ticket in the Service Platform to either (a) accept the work product in the Service Platform or (b) submit specific, written, and reasonably detailed feedback identifying the acceptance criteria the work product fails to meet. If Customer does not respond within five (5) Business Days, the work product is deemed accepted for all purposes, including for purposes of triggering payment obligations, closing the Ticket, releasing the Pod to work on the next Ticket, and starting the warranty period in Section 8.2. Feedback that is not tied to the written acceptance criteria of the Ticket is treated as a new Ticket or change order, not a rejection.

3.11 AI-Enhanced Service Delivery

Customer acknowledges and expressly consents that Service Provider uses artificial intelligence, machine-learning, and automation tools (including third-party generative-AI services) to accelerate delivery and enhance quality (“AI Tools”). Service Provider remains responsible for ensuring that Deliverables conform to the acceptance criteria of the Ticket. Customer further acknowledges that (a) AI Tools may generate output that requires human review; (b) Service Provider may transmit non-sensitive Ticket content to AI Tools operated by third parties, subject to Service Provider’s security program under Section 14; (c) Restricted Data (as defined in Section 1.18) will not be transmitted to any third-party AI Tool. Service Provider will configure its AI Tools and workflows to exclude Restricted Data from transmission to third-party AI Tools by default. This protection applies automatically to all Tickets submitted under this Agreement, and Customer is not required to designate Restricted Data on a per-Ticket basis.

3.12 Pod Composition; Substitution; No Dedicated Personnel

Service Provider assembles the Pod in its sole discretion. Customer is not entitled to (a) any specific individual, (b) any specific headcount, (c) any specific role or seniority mix, (d) any minimum or maximum hours worked, (e) any specific working hours, days, or geographic location, or (f) any dedicated allocation of Pod time. Service Provider may assign, reassign, substitute, add, or remove Pod members and Pod subcontractors at any time and for any reason without notice to Customer, provided that Service Provider remains responsible for performance of the Services.

3.13 No Employment or Joint-Employer Relationship

Pod members are employees or contractors of Service Provider or its subcontractors. Nothing in this Agreement creates an employer-employee, joint-employer, partnership, joint-venture, staffing, leased-employee, or agency relationship between Customer and any Pod member. Customer will not direct any Pod member’s work methods, hours, tax withholding, benefits, or personnel matters; all direction and communication flows through the Service Platform.

4. Customer Obligations

4.1 Customer Contract Manager

Customer will designate one (1) of its employees or agents to serve as its primary contact under this Agreement and to act as its authorized representative for all matters pertaining to this Agreement (the “Customer Contract Manager”). The designation remains in force unless and until a successor Customer Contract Manager is designated in writing by Customer.

4.2 Responsiveness

Customer will cause the Customer Contract Manager to respond promptly (and in any event within two (2) Business Days) to any reasonable request from Service Provider for instructions, information, decisions, approvals, credentials, or access required to perform the Services.

4.3 Cooperation and Access

Customer will cooperate with Service Provider in its performance of the Services and provide timely access to Customer’s systems, environments, sandboxes, personnel, contractors, subject-matter experts, business rules, and data as reasonably required to enable Service Provider to perform the Services.

4.4 Preventing Customer-Caused Delay

Customer will take all steps necessary — including obtaining any required licenses, subscriptions, consents, permissions, and approvals from third parties — to prevent Customer-caused delays in Service Provider’s provision of the Services. Time lost to Customer-caused delay is deemed Services duly rendered; Fees continue to accrue during any such delay; and Service Provider has no liability for any missed target, degraded outcome, or non-completion caused in whole or in part by Customer-caused delay.

4.5 Customer Materials

Customer represents and warrants that (a) it has all rights necessary to provide Customer Materials to Service Provider and to permit Service Provider to use them in connection with the Services; and (b) Customer Materials do not infringe or misappropriate any third-party right or violate Applicable Law.

5. Fees, Invoicing, and Taxes

5.1 Subscription Fees; Prepaid in Full

The Services are provided on a fixed-term, prepaid subscription basis. Customer will pay the Fees specified in each Order Form in a single payment, in full and in advance, on or before the Order Form effective date, as a condition to Service Provider commencing work under that Order Form. The Fees are fully earned by Service Provider on the Order Form effective date in consideration of Service Provider reserving and making the Pod available to Customer for the Service Period, and are non-refundable, non-creditable, and non-offsetable except as expressly set forth in Section 6.2(d) (Point Floor Refund) and Section 6.3 (Termination for Cause). The Fees are consideration for access to the Services and the Pod during the Service Period, and are not consideration for hours worked, individuals assigned, Tickets accepted, Tickets processed, Tickets completed, Deliverables produced, or any other measure of activity or output. Without limiting the foregoing, Fees are not reduced, prorated, credited, refunded, or offset based on Ticket volume, Ticket complexity, Pod utilization, backlog depth, throughput, delivery velocity, Customer’s use or non-use of the Services, Customer’s prioritization decisions or delays, or any other measure of activity, output, or Customer engagement with the Services.

5.2 Payment Method and Timing

Customer will pay each Order Form’s Fees on or before the Order Form effective date by either (a) credit card charged to the payment method on file with Service Provider, or (b) ACH transfer to the account designated by Service Provider in writing. Service Provider does not invoice for the Services in arrears, and no invoice is required as a condition to Customer’s payment obligation under this Section 5. Upon request, Service Provider will provide a written receipt or payment confirmation for Customer’s records. Any credit card processing fees, ACH return fees, chargeback fees, or bank fees incurred by Service Provider in connection with Customer’s payment or attempted payment (including any reversed, disputed, or failed payment) are payable by Customer on demand.

5.3 Late Payment; Non-Commencement

If the Fees for an Order Form are not received by Service Provider on or before the Order Form effective date, (a) Service Provider is not obligated to commence or continue any Services under that Order Form, (b) the Order Form effective date, Service Period commencement, and all Service Provider obligations under the Order Form are automatically tolled until payment is received in full, and (c) any Service Period end date stated in the Order Form is not extended by reason of the tolling unless Service Provider agrees in writing. Amounts not paid when due accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by Applicable Law, from the due date until paid.

5.4 Taxes

Fees are exclusive of, and Customer is responsible for, all sales, use, value-added, gross-receipts, excise, and similar taxes, duties, and governmental charges arising from or relating to the Services, other than taxes imposed on Service Provider’s net income. If Service Provider is required to collect any such tax, it will be added to the amount charged to Customer.

6. Term and Termination

6.1 Term

This MSA begins on the Effective Date and continues in effect for so long as any Order Form is in effect, and thereafter until terminated in accordance with this Section 6. Each Order Form has the fixed Service Period specified in it (the “Service Period”), which, unless the Order Form expressly states otherwise, is three (3) months commencing on the Order Form effective date. Each Service Period is a fixed, non-cancelable term and does not automatically renew. No month-to-month, evergreen, or successive-term arrangement arises by operation of this Agreement, by course of dealing, or by continued use of the Service Platform after the Service Period ends. Any continuation of Services beyond the stated Service Period requires a new Order Form or a written renewal signed by both Parties, which may be executed on the same or different commercial terms. Service Provider intends, as a matter of business practice and not as a contractual obligation, to reconnect with Customer before the end of the Service Period to discuss progress and whether continued engagement makes sense for Customer’s next phase; no notice of non-renewal is required from either Party.

6.2 Termination for Convenience. No Refund of Prepaid Fees

Because each Service Period is a fixed, prepaid, non-cancelable term entered into in reliance on Service Provider’s commitment of a Pod to Customer, neither Party may terminate an Order Form for convenience during its Service Period. Customer may elect at any time to stop submitting Tickets, stop prioritizing the Ticket Queue, or otherwise cease using the Services, but any such election does not reduce, refund, credit, offset, or otherwise excuse Customer’s obligation to pay the full Fees for the entire Service Period. Without limiting the foregoing, Customer expressly acknowledges and agrees that:

1. (a)All Fees for the Service Period are fully earned by Service Provider on the Order Form effective date in consideration of Service Provider reserving and making the Pod available to Customer for the Service Period;
2. (b)no refund, credit, offset, proration, or other adjustment is owed on account of (i) unused Tickets, (ii) backlog remaining at the end of the Service Period, (iii) fewer Tickets submitted than Customer anticipated, (iv) Customer’s failure or delay in prioritizing the Ticket Queue, providing Customer Materials, granting access, or responding to Service Provider under Section 4, (v) perceived under-utilization of the Pod, (vi) Customer’s decision to reduce, pause, or discontinue use of the Services, or (vii) any change in Customer’s business needs, personnel, or priorities; and
3. (c)the Fees reflect Service Provider’s allocation of Pod capacity, its opportunity cost in declining or deferring other engagements, and the risk-allocation framework set forth in this Agreement, and would be materially different absent this Section 6.2; and
4. (d)Point Floor Refund. Notwithstanding the foregoing provisions of this Section 6.2, if a Point Floor shortfall under Section 3.5(e) is not cured by make-good delivery before the end of the Service Period, Service Provider will refund Customer an amount equal to the Fees for the Measurement Period, prorated by the percentage shortfall in points delivered against the Point Floor, excluding any shortfall attributable to the exclusions in Section 3.5(d), including Customer’s failure to maintain sufficient ready Tickets in the Ticket Queue. This is Customer’s sole and exclusive remedy for a Point Floor shortfall, and does not otherwise limit Section 6.2’s prohibition on termination-for-convenience refunds.

Termination for cause under Section 6.3 and each Party’s rights and remedies for the other Party’s uncured material breach, insolvency, or unlawful conduct are unaffected by this Section 6.2.

6.3 Termination for Cause

Either Party may terminate this Agreement or any Order Form, effective on written notice, if the other Party: (a) materially breaches this Agreement or the applicable Order Form and fails to cure such breach within thirty (30) days after receiving written notice of the breach; (b) becomes insolvent, files or has filed against it a petition in bankruptcy that is not dismissed within sixty (60) days, makes an assignment for the benefit of creditors, or has a receiver appointed over its assets; or (c) engages in fraud or willful misconduct in connection with this Agreement. Customer’s failure to pay Fees when due under Section 5 is a material breach. If Customer terminates an Order Form under this Section 6.3 for Service Provider’s uncured material breach, Service Provider will refund the pro-rata portion of prepaid Fees allocable to the remainder of the Service Period following the termination effective date. This refund is Customer’s sole and exclusive monetary remedy for termination under this Section 6.3, subject to Section 12.

6.4 Effect of Termination

Upon expiration or termination of this Agreement or any Order Form: (a) Customer will pay all Fees due and unpaid as of the effective date of termination; (b) each Party will return or destroy the other Party’s Confidential Information in accordance with Section 10, except as retained pursuant to standard backup procedures or as required by Applicable Law; (c) Customer’s access to the Service Platform will be discontinued, provided Service Provider will make Deliverables and Ticket records available for export for thirty (30) days following termination; and (d) Sections 1, 5, 7, 8, 10, 11, 12, 15, 16, 17, and 18 survive termination.

6.5 Transition Services

On Customer’s written request delivered no later than the termination effective date, Service Provider will provide reasonable transition assistance for up to sixty (60) days at Service Provider’s then-current time-and-materials rates, subject to a signed transition Order Form.

7. Intellectual Property

7.1 Customer Materials

Customer retains all right, title, and interest in Customer Materials.

7.2 Deliverables

Subject to full payment of all Fees applicable to the relevant Deliverables, Service Provider assigns to Customer all right, title, and interest in the custom-developed portions of Deliverables identified as such in the Order Form or Ticket. Pending full payment, Customer receives only a limited, revocable license to use those Deliverables for internal evaluation.

7.3 Service Provider IP

Service Provider retains all right, title, and interest in its pre-existing intellectual property, tools, methodologies, templates, frameworks, know-how, and any generalized components, and any improvements, modifications, or derivative works of any of the foregoing, whether created before or during the engagement (“Service Provider IP”). Service Provider grants Customer a non-exclusive, perpetual, royalty-free, worldwide, non-transferable license to use Service Provider IP solely as embedded in the Deliverables and solely for Customer’s internal business purposes.

7.4 Third-Party Materials; AI Tools

Third-Party Materials and AI Tools are licensed on their own terms directly from the applicable licensor. Service Provider is not a party to those license agreements and makes no representations concerning Third-Party Materials or AI Tools.

7.5 Feedback

Customer grants Service Provider a perpetual, irrevocable, royalty-free, worldwide license to use any feedback, suggestions, or ideas Customer provides to improve Service Provider’s services.

8. Warranties and Disclaimers

8.1 Mutual Warranties

Each Party represents and warrants that (a) it is duly organized and in good standing; (b) it has full power and authority to enter into this Agreement; and (c) its execution and performance of this Agreement does not violate any other agreement or Applicable Law.

8.2 Limited Services Warranty

Service Provider warrants that Services performed on an active Ticket will be performed in a professional and workmanlike manner consistent with generally accepted industry standards for software implementation managed services. Customer’s exclusive remedy and Service Provider’s sole obligation for breach of this warranty is, at Service Provider’s election, (a) re-performance of the non-conforming Services, or (b) a pro-rata refund of the Fees paid that are directly allocable to the non-conforming Services, provided Customer gives written notice of the non-conformity through the Service Platform within thirty (30) days of the date the applicable work product was accepted or deemed accepted under Section 3.10.

8.3 Conspicuous Disclaimer of All Other Warranties

9. Service Platform

9.1 Access

Service Provider will provide Customer with credentialed access to the Service Platform. Customer is responsible for the security of its credentials and for all activity conducted through them.

9.2 System of Record

The Service Platform is the exclusive system of record for the Services. In any dispute concerning what was requested, prioritized, delivered, accepted, or communicated, the records maintained in the Service Platform control over any oral communication, email, or other extrinsic evidence, absent manifest error.

9.3 Third-Party Hosting

The Service Platform (as of the Effective Date, ClickUp) is a third-party service provided under its own terms. Service Provider is not liable for third-party Service Platform outages, security incidents, or feature changes, provided that Service Provider will use commercially reasonable efforts to migrate to a comparable platform if the Service Platform becomes unavailable for an extended period.

10. Confidentiality

10.1 Definition

“Confidential Information” means non-public information disclosed by one Party (“Discloser”) to the other (“Recipient”) that is designated confidential or that a reasonable person would understand to be confidential in the circumstances.

10.2 Obligations

Recipient will (a) use Confidential Information only to perform its obligations or exercise its rights under this Agreement; (b) protect it with the same degree of care as its own confidential information, but not less than reasonable care; and (c) not disclose it to any third party except to its employees, contractors, and advisors bound by comparable confidentiality obligations and with a need to know.

10.3 Exclusions

Confidentiality obligations do not apply to information that (a) is or becomes publicly available without breach; (b) was known without restriction before receipt; (c) is independently developed without use of the other Party’s Confidential Information; or (d) is rightfully received from a third party without a duty of confidence.

10.4 Compelled Disclosure

Recipient may disclose Confidential Information as required by law or valid legal process, provided (where legally permissible) Recipient gives Discloser prompt notice and reasonable cooperation to seek a protective order.

10.5 Term

Confidentiality obligations continue during the term and for five (5) years after termination; trade secrets are protected for as long as they remain trade secrets under Applicable Law.

11. Indemnification

11.1 Service Provider Indemnity — IP Infringement

Service Provider will defend, indemnify, and hold harmless Customer and its officers, directors, and employees from and against any third-party claim alleging that a Deliverable created by Service Provider, as delivered and used by Customer in accordance with this Agreement, directly infringes a United States patent, copyright, trademark, or trade secret (“IP Claim”), and will pay damages and reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or agreed in settlement, subject to the limits in Section 12.

Service Provider’s indemnity in this Section 11.1 does not apply to any IP Claim arising from (a) Third-Party Materials or AI Tools; (b) Customer Materials or Customer-provided specifications; (c) modifications to Deliverables not made by Service Provider; (d) combination of Deliverables with items not supplied or approved by Service Provider; or (e) use of Deliverables after Service Provider has offered a non-infringing alternative.

On notice of an IP Claim, Service Provider may, at its option, (i) procure the right for Customer to continue using the Deliverable; (ii) modify or replace the Deliverable to be non-infringing; or (iii) if neither (i) nor (ii) is commercially reasonable, terminate the affected Order Form and refund the pro-rata Fees paid for the twelve (12) months preceding the claim allocable to the infringing Deliverable. Sections 11.1 and 12 state Service Provider’s sole liability and Customer’s exclusive remedy for infringement.

11.2 Customer Indemnity

11.3 Indemnification Procedure

The indemnified Party will (a) give the indemnifying Party prompt written notice of the claim; (b) grant the indemnifying Party sole control of the defense and settlement (provided that no settlement imposing a non-monetary obligation on, or requiring an admission of liability by, the indemnified Party may be entered without its written consent, not to be unreasonably withheld); and (c) provide reasonable cooperation at the indemnifying Party’s expense.

12. Limitation of Liability

12.1 Exclusion of Indirect and Consequential Damages

12.2 Cap on Direct Damages

12.2A Indemnity Cap

Notwithstanding Section 12.3(a), each Party’s aggregate liability arising from or relating to indemnification obligations under Section 11.1 or 11.2, as applicable, will not exceed two (2) times the total Fees paid or payable by Customer under the applicable Order Form during the twelve (12) months preceding the event giving rise to the claim. This sub-cap does not apply to claims arising from a Party’s willful misconduct, fraud, or breach of Section 10 (Confidentiality).

12.3 Carve-Outs

The exclusions and caps in Sections 12.1 and 12.2 do not apply to: (a) a Party’s indemnification obligations under Sections 11.1 and 11.2, which are instead subject to the indemnity cap set forth in Section 12.2A; (b) breaches of Section 10 (Confidentiality); (c) infringement or misappropriation of the other Party’s intellectual property rights; (d) Customer’s payment obligations under Section 5; (e) a Party’s willful misconduct or fraud; or (f) any liability that cannot be limited under Applicable Law.

12.4 Basis of the Bargain

The Parties acknowledge that the Fees reflect the allocation of risk set forth in this Agreement, including the direct-damages cap in Section 12.2 and the indemnity cap in Section 12.2A, and that Service Provider would not enter into this Agreement absent the limitations in this Section 12.

12.5 Time to Bring Claims

Except for claims for non-payment or under Section 10, no action arising out of this Agreement may be brought by either Party more than two (2) years after the cause of action first accrued.

13. Insurance

13.1 Service Provider Insurance

Service Provider will maintain during the term of any active Order Form: (a) commercial general liability insurance with limits not less than $1,000,000 per occurrence / $2,000,000 aggregate; (b) professional liability (errors and omissions) insurance with limits not less than $1,000,000 per claim / $2,000,000 aggregate. Certificates of insurance will be provided on request.

13.2 No Waiver

Maintenance of insurance does not modify or waive the limitations of liability in Section 12.

14. Data Protection and Security

14.1 Security Program

Service Provider maintains a written information security program with administrative, technical, and physical safeguards designed to protect Customer data consistent with SOC 2 or comparable industry standards.

14.2 Personal Data

If the Services involve processing of personal data subject to a specific law (including the Texas Data Privacy and Security Act), the Parties will execute a Data Processing Addendum before such processing begins.

14.3 Customer Data Responsibility

Customer is responsible for the lawfulness, accuracy, completeness, and quality of data provided to Service Provider and for obtaining any consents required by Applicable Law from data subjects.

15. Non-Solicitation

15.1 Mutual Non-Solicit

During the term and for twelve (12) months thereafter, neither Party will directly solicit for employment or engage as a contractor any employee or contractor of the other Party who was materially involved in the Services, without the other Party’s prior written consent. General public advertising and hiring of individuals who respond to it are not a breach.

15.2 Liquidated Damages

If a Party breaches Section 15.1, the breaching Party will pay the other Party a fee equal to fifty percent (50%) of the solicited individual’s then-current annualized base compensation, as liquidated damages and not as a penalty, the Parties agreeing that actual damages would be difficult to quantify.

16. Governing Law, Venue, and Waiver of Jury Trial

16.1 Governing Law

This Agreement and all matters arising out of or relating to it are governed by the laws of the State of Texas, without regard to its conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

16.2 Mandatory Venue — Williamson County

16.3 Waiver of Jury Trial

16.4 DTPA Waiver

17. Dispute Resolution

17.1 Informal Resolution

Before filing suit, the Parties will attempt in good faith to resolve any dispute through senior-executive negotiation for at least thirty (30) days after written notice of the dispute.

17.2 Mediation

If executive negotiation fails, the Parties will submit the dispute to non-binding mediation before a mutually agreed mediator in Williamson County, Texas, sharing costs equally.

17.3 Injunctive Relief

Either Party may seek immediate injunctive or equitable relief in the courts identified in Section 16.2 to protect its intellectual property or Confidential Information without first exhausting Sections 17.1 and 17.2.

18. General Provisions

18.1 Independent Contractors

The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employer-employee relationship.

18.2 Assignment

Neither Party may assign this Agreement without the other Party’s prior written consent, except that either Party may assign to an Affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets, on written notice. Any prohibited assignment is void.

18.3 Subcontractors

Service Provider may use subcontractors for any portion of the Services, provided Service Provider remains responsible for the subcontractor’s performance and compliance with this Agreement.

18.4 Notices

Legal notices under this Agreement must be in writing and delivered by (a) hand delivery; (b) nationally recognized overnight courier; or (c) certified U.S. mail, return receipt requested, with a courtesy copy by email. Notices to Service Provider must be sent to the address set forth in the first paragraph of this Agreement, Attn: Legal, with a copy to legal@cloudnerd.com. Notices to Customer must be sent to the address and contact designated in the applicable Order Form. Notices are effective on receipt. Routine operational communications may be delivered through the Service Platform.

18.5 Force Majeure

Neither Party is liable for delays or failures caused by events beyond its reasonable control, including acts of God, war, terrorism, civil unrest, pandemics, government orders, labor disputes not involving its own workforce, Internet or telecommunications failures, cyber-attacks, denial-of-service attacks, and third-party Service Platform outages. Force majeure does not excuse payment obligations for Services already rendered.

18.6 Publicity

Service Provider may include Customer’s name and logo in customer lists and marketing materials, and may reference the general nature of the engagement in case studies with Customer’s prior written approval, not to be unreasonably withheld.

18.7 Severability

If any provision of this Agreement is held unenforceable, the remaining provisions continue in effect, and the unenforceable provision will be reformed to reflect the Parties’ original intent to the maximum extent permitted by Applicable Law.

18.8 No Waiver

Failure to enforce any provision is not a waiver of the right to enforce it later.

18.9 Entire Agreement

This Agreement, together with all Order Forms and Exhibits, constitutes the entire agreement between the Parties on its subject matter and supersedes all prior or contemporaneous agreements and understandings, whether oral or written. Purchase-order terms and any Customer-issued “shrinkwrap” or “clickwrap” terms are expressly rejected and have no effect on this Agreement.

18.10 Amendment

This Agreement may only be amended by a writing signed by authorized representatives of both Parties, except for updates to this Agreement made in accordance with Section 2.4(b), which are effective as provided in that Section.

18.11 Counterparts; Electronic Signatures

This Agreement may be executed in counterparts, including via electronic signature, each of which is deemed an original and all of which together constitute one instrument.

18.12 Construction

Section headings are for convenience only. “Including” means “including without limitation.” Neither Party will be deemed the drafter for purposes of construction.

18.13 Acknowledgment of Fair Notice