- Access and Use. During the Subscription Period and subject to the terms of this Agreement, Customer may (a) access and use the Cloud Service; and (b) copy and use the included Software and Documentation only as needed to access and use the Cloud Service, in each case, for its internal business purposes . If a Customer Affiliate enters a separate Order Form with Provider, the Customer’s Affiliate creates a separate agreement between Provider and that Affiliate, where Provider’s responsibility to the Affiliate is individual and separate from Customer and Customer is not responsible for its Affiliates’ agreement.
- Support. During the Subscription Period, Provider will provide Technical Support as described in the Order Form.
- User Accounts. Customer is responsible for all actions on Users’ accounts and for all Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.
- Feedback and Usage Data. Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS”. Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, enhance, and promote Provider’s products and services without restriction or obligation. However, Provider may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer or Users.
- Customer Content. Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings. Customer is responsible for the accuracy and content of Customer Content.
- Machine Learning. Usage Data and Customer Content may be used to develop, train, or enhance artificial intelligence or machine learning models that are part of Provider’s products and services, including third-party components of the Product, and Customer authorizes Provider to process its Usage Data and Customer Content for such purposes. However, (a) Usage Data and Customer Content must be aggregated before it can be used for these purposes, and (b) Provider will use commercially reasonable efforts consistent with industry standard technology to de-identify Usage Data and Customer Content before such use. Nothing in this section will reduce or limit Provider’s obligations regarding Personal Data that may be contained in Usage Data or Customer Content under Applicable Data Protection Laws. Due to the nature of artificial intelligence and machine learning, information generated by these features may be incorrect or inaccurate. Product features that include artificial intelligence or machine learning models are not human and are not a substitute for human oversight.
- Restrictions on Customer.
- Except as expressly permitted by this Agreement, Customer will not (and will not allow anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Product; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product; (vi) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization; (vii) use the Product to develop a competing service or product; (viii) use the Product with any High Risk Activities or with any activity prohibited by Applicable Laws; (ix) use the Product to obtain unauthorized access to anyone else’s networks or equipment; or (x) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights.
- Use of the Product must comply with all Documentation and Use Limitations.
- Personal Data. Before submitting Personal Data governed by GDPR, Customer must enter into a data processing agreement with Provider. If the parties have a DPA , each party will comply with its obligations in the DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement.
- Prohibited Data. Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless authorized by the Order Form or Key Terms.
- Fees. Unless the Order Form specifies a different currency, all Fees are in U.S. Dollars and are exclusive of taxes. Except for the prorated refund of prepaid Fees allowed with specific termination rights given in the Agreement, Fees are non-refundable.
- Invoicing. For a Payment Process with invoicing, Provider will send invoices for usage-based Fees in arrears and for all other Fees in advance, in each case according to the Payment Process.
- Automatic Payment. For a Payment Process with automatic payment, Provider will automatically charge the credit card, debit card, or other payment method on file for Fees according to the Payment Process and Customer authorizes all such charges. In this case, Provider will make a copy of Customer’s bills or transaction history available to Customer.
- Taxes. Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding, that Provider itemizes and includes in an invoice. However, Customer is not responsible for Provider’s income taxes.
- Payment. Customer will pay Provider Fees and taxes in U.S. Dollars, unless the Order Form specifies a different currency, according to the Payment Process.
- Payment Dispute. If Customer has a good-faith disagreement about the Fees charged or invoiced, Customer must notify Provider about the dispute before payment is due, or within 30 days of an automatic payment, and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days. If no resolution is agreed, each party may pursue any remedies available under the Agreement or Applicable Laws.
- Order Form and Agreement. For each Order Form, the Agreement will start on the Order Date, continue through the Subscription Period, and automatically renew for additional Subscription Periods unless one party gives notice of non-renewal to the other party before the Non-Renewal Notice Date .
- Framework Terms. These Framework Terms will start on the Effective Date and continue for the longer of one year or until all Order Forms governed by the Framework Terms have ended .
- Termination . Either party may terminate the Framework Terms or an Order Form immediately:
- if the other party fails to cure a material breach of the Framework Terms or an Order Form following 30 days notice;
- upon notice if the other party (i) materially breaches the Framework Terms or an Order Form in a manner that cannot be cured; (ii) dissolves or stops conducting business without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.
- Customer will no longer have any right to use the Product.
- Upon Customer’s request, Provider will delete Customer Content within 60 days.
- Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.
- Provider will submit a final bill or invoice for all outstanding Fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment & Taxes).
- The following sections will survive expiration or termination of the Agreement: Section 1.4 (Feedback and Usage Data), Section 1.6 (Machine Learning), Section 2.1 (Restrictions on Customer), Section 4 (Payment & Taxes) for Fees accrued or payable before expiration or termination, Section 5.5 (Effect of Termination), Section 5.6 (Survival), Section 6 (Representations & Warranties), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (Reservation of Rights), Section 12 (General Terms), Section 13 (Definitions), and the portions of a Cover Page referenced by these sections.
- Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 3 (Privacy & Security) and Section 10 (Confidentiality) will continue to apply to retained Confidential Information.
- Mutual. Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and (d) it will comply with the Additional Warranties.
- From Customer. Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in the Agreement.
- From Provider. Provider represents and warrants to Customer that it will not materially reduce the general functionality of the Cloud Service during the Subscription Period.
- Provider Warranty Remedy. If Provider breaches the warranty in Section 6.3 (Representations & Warranties from Provider), Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the Cloud Service. If Provider cannot resolve the issue, Customer may terminate the affected Order Form and Provider will pay to Customer a prorated refund of prepaid Fees for the remainder of the Subscription Period. Provider’s restoration obligation, and Customer’s termination right, are Customer’s only remedies if Provider does not meet the warranty in Section 6.3 (Representations & Warranties from Provider).
- Provider makes no guarantees that the Product will always be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. The warranties in Section 6 (Representations & Warranties) do not apply to any misuse or unauthorized modification of the Product, nor to any product or service provided by anyone other than Provider. Except for the warranties in Section 6 (Representations & Warranties), Provider and Customer each disclaim all other warranties and conditions, whether express or implied, including the implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.
- Liability Caps.
- Except as provided in Section 8.4 (Exceptions), each party’s total cumulative liability for all claims arising out of or relating to this Agreement will not be more than the General Cap Amount .
- If there are Increased Claims , each party’s total cumulative liability for all Increased Claims arising out of or relating to this Agreement will not be more than the Increased Cap Amount .
- Protection by Provider. Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users , and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Provider Covered Claims.
- Protection by Customer. Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates , and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer Covered Claims.
- Procedure. The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.
- Changes to Product. If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid Fees for the remainder of the Subscription Period.
- Exclusions.
- Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from (i) modifications to the Product that were not authorized by Provider or that were made in compliance with Customer’s instructions; (ii) unauthorized use of the Product, including use in violation of this Agreement; (iii) use of the Product in combination with items not provided by Provider; or (iv) use of an old version of the Product where a newer release would avoid the Provider Covered Claim.
- Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of the Customer Content, including use in violation of this Agreement.
- Non-Use and Non-Disclosure. Except as otherwise authorized in the Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.
- Exclusions. Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.
- Required Disclosures. Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.
- Permitted Disclosures. Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).
- Except for the limited license to copy and use Software and Documentation in Section 1.1 (Access and Use), Provider retains all right, title, and interest in and to the Product, whether developed before or after the Effective Date. Except for the limited rights in Section 1.5 (Customer Content) and 1.6 (Machine Learning), Customer retains all right, title, and interest in and to the Customer Content.
- Entire Agreement. This Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. No terms or conditions in any Customer documentation or online vendor portal will apply to Customer’s use of the Product unless expressly agreed to in a legally binding written agreement signed by an authorized Provider representative, regardless of what such terms may say.
- Modifications, Severability, and Waiver. Any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each party. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.
- Governing Law and Chosen Courts . The Governing Law will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.
- Injunctive Relief. Despite Section 12.3 (Governing Law and Chosen Courts), a breach of Section 10 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.
- Non-Exhaustive Remedies. Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.
- Assignment. Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
- Beta Products. If Provider gives Customer access to a Beta Product, the Beta Product is provided “AS IS” and Section 6.3 (Representations & Warranty From Provider) does not apply to any Beta Products. Customer acknowledges that Beta Products are experimental in nature and may be modified or removed at Provider’s discretion with or without notice.
- Logo Rights . Provider may identify Customer and use Customer’s name and logo in marketing to identify Customer as a user of Provider’s products and services.
- Notices. Any notice, request, or approval about the Agreement must be in writing and sent to the Notice Address. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.
- Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.
- No Third-Party Beneficiary. There are no third-party beneficiaries of this Agreement.
- Force Majeure. Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees.
- Export Controls. Customer may not remove or export from the United States or allow the export or re-export of the Product or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
- Government Rights. The Cloud Service and Software are deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Product by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.
- Anti-Bribery. Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.
- Titles and Interpretation. Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.
- Signature. This Agreement may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.
- Defining Variables. Variables have the meanings or descriptions given on a Cover Page. However, if the Order Form and the governing Framework Terms omit or do not define a Variable, the default meaning will be “none” or “not applicable” and the correlating clause, sentence, or section does not apply to that Agreement.
- “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.
- “Agreement” means the Order Form between Provider and Customer as governed by the Framework Terms.
- “Applicable Data Protection Laws” means the Applicable Laws that govern how the Cloud Service may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.
- “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.
- “Beta Product” means an early or prerelease feature or version of the Product that is identified as beta or similar, or a version of the Product that is not generally available.
- “Cloud Service” means the product described in the Order Form.
- “Confidential Information” means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of this Agreement and the information on each Cover Page. Customer’s Confidential Information includes non-public Customer Content and Provider’s Confidential Information includes non-public information about the Product.
- “Cover Page” means a document that is signed or electronically accepted by the parties, incorporates these Standard Terms or is governed by the Framework Terms, and identifies Provider and Customer. A Cover Page may include an Order Form, Key Terms, or both.
- “Covered Claim” means either a Provider Covered Claim or Customer Covered Claim.
- “Customer Content” means data, information, or materials submitted by or on behalf of Customer or Users to the Product but excludes Feedback.
- “Discloser” means a party to this Agreement when the party is providing or disclosing Confidential Information to the other party.
- “Documentation” means the usage manuals and instructional materials for the Cloud Service or Software that are made available by Provider.
- “Feedback” means suggestions, feedback, or comments about the Product or related offerings.
- “Fees” means the applicable amounts described in an Order Form.
- “Force Majeure Event” means an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disasters like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.
- “Framework Terms” means these Standard Terms, the Key Terms between Provider and Customer, and any policies and documents referenced in or attached to the Key Terms.
- “GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.
- “High Risk Activity” means any situation where the use or failure of the Product could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.
- “Indemnifying Party” means a party to this Agreement when the party is providing protection for a particular Covered Claim.
- “Key Terms” means a Cover Page that includes the key legal details and Variables for this Agreement. The Key Terms may include details about Covered Claims, set the Governing Law, or contain other details about this Agreement.
- “Order Form” means a Cover Page that includes the key business details and Variables for this Agreement that are not defined in the Framework Terms. An Order Form includes the policies and documents referenced in or attached to the Order Form. An Order Form may include details about the level of access and use granted to the Cloud Service, length of Subscription Period, or other details about the Product.
- “Personal Data” will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.
- “Product” means the Cloud Service, Software, and Documentation.
- “Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR; and (e) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.
- “Protected Party” means a party to this Agreement when the party is receiving the benefit of protection for a particular Covered Claim.
- “Recipient” means a party to this Agreement when the party receives Confidential Information from the other party.
- “Software” means the client-side software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.
- “Standard Terms” means these Common Paper Cloud Service Agreement Standard Terms Version 2.0, which are posted at https://commonpaper.com/standards/cloud-service-agreement/2.0/.
- “Usage Data” means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or User’s use of the Product.
- “User” means any individual who uses the Product on Customer’s behalf or through Customer’s account.
- “Variable” means a word or phrase that is highlighted and capitalized, such as Subscription Period or Governing Law.
Common Paper Cloud Service Agreement (Version 2.0) free to use under CC BY 4.0 .
The Cloud Service Agreement, annotated
Order Form
The Order Form contains the business details that you can customize from deal to deal.
The Order Form is contained in a Cover Page. Learn about how standard agreements work in our anatomy of a contract blog post.
Framework Terms
The Framework Terms operate as an overarching governing document between two organizations, similar to a “master agreement”. Framework Terms can apply to one or many Order Forms. When you combine an Order Form with Framework Terms, you get the Agreement or overall contract.
The Framework Terms included below
If the Framework Terms are not included as Key Terms in this same document, you can replace this first sentence with “This Order Form incorporates and is governed by the Framework Terms dated [ enter Effective Date of Key Terms ] between [ enter name of Provider ] and [ enter name of Customer ].”
Order Date
The Order Date is distinct from the Effective Date, which is the date the Framework Terms start and is defined below the Key Terms. They are often, but not always, the same date.
( x )
Choices pre-marked with an “x” show the default selection. You can use the “x” to mark off your choice, or keep the text for your choice and delete the text for the other options.
Parentheses with blank space indicate a choice you need to make where one option must be chosen, but not more than one should be selected.
[ Fill in custom start date ]
Square brackets with text indicate a field you can fill in or customize before sending the agreement.
For this one, if the Order Date is different from the date of signature, then set the Order Date here.
Pilot
This is an optional field. Use it to include a pilot or trial period that is in addition to the full Subscription Period. If there is no pilot period, delete this entire row.
The Subscription Period will automatically start following the Pilot Period.
This clarifies that the Pilot Period is in addition to the Subscription Period.
Square brackets with blank space indicate choices that are optional. You can pick none, one, or more than one. Indicate selections by checking the box for those you wish to include and/or deleting the unused options.
[ – Sections 6.3 (Representations & Warranties from Provider), 6.4 (Provider Warranty Remedy), and 9 (Indemnification) do not apply during the Pilot Period. – There are no Increased Claims or Unlimited Claims during the Pilot Period. – The General Cap Amount is $1,000 for all claims that arise during the Pilot Period. – Either party may immediately terminate the Agreement during the Pilot Period for any or no reason by giving notice to the other party. ]
Use this area to make modifications that only apply during the Pilot Period. Shown are some common modifications that occur for pilots and trials, which can be changed to suit your needs.
[ Fill in length of access, e.g. 12 months ]
From the Benchmark : The majority (70%) of CSAs have a Subscription Period of one year. The next most common length is one month, accounting for 19% of CSAs.
[ ] Fees may increase up to [ # ]% per renewal.
This is optional and may be deleted if not applicable. It permits a Fee increase upon renewal, but would require notifying the customer about an increase before it happens.
From the Benchmark : 29% of CSAs include the ability to increase fees upon renewal, typically in the range of a 5-8% increase.
[ ] Fees will increase [ # ]% per renewal.
This is optional and may be deleted if not applicable. It authorizes an automatic Fee increase upon renewal, without the requirement to notify the customer.
[ ] Modifying Section 4.1 of the Standard Terms, Fees are inclusive of taxes.
This is optional and may be deleted if not applicable. It is for situations where the prices listed include applicable taxes, such as in regions that use a VAT-inclusive model.
Payment Process
Use Payment Process to clarify how billing and payments will work for your customer.
( ) Pay by invoice
This option requires the provider to send invoices in order for your customer to pay.
[ monthly | quarterly | annually | once per Subscription Period ]
If using this option, set how frequently the provider must send invoices. Although this time frame is often the same as the Subscription Period, it can be different. For example, you can have a 1 year subscription period that is invoiced monthly in 12 equal increments.
From the Benchmark : 48% of CSAs use monthly invoices, while 46% send annual invoices.
[ # ] days from [ Customer’s receipt of invoice | the invoice date ]
Together, these two fields set how long a customer has to pay each invoice. Finance teams often refer to this time period in “NET terms” such as “NET-30 days”.
From the Benchmark : “30 days from Customer’s receipt of invoice” is the most common payment period, making up 62% of CSAs.
( ) Automatic payment
This option requires the customer to keep a credit card or other payment method on file that the provider automatically charges on the agreed-upon cadence.
[ monthly | quarterly | annually | once per Subscription Period ]
If using this option, set how frequently the provider will charge the customer’s payment method. Although this time frame is often the same as the Subscription Period, it can be different. For example, you can have a 1 year subscription period that is charged monthly in 12 equal increments.
( x )
The Standard Terms set a default of automatic renewal for contracts. However, automatic renewal doesn’t mean the contract cannot end. At baseline, either side can cancel renewal by giving sufficient notice, the time period for which is set here.
From the Benchmark : The vast majority (90%) of CSAs retain automatic renewal.
[ fill in number ]
From the Benchmark : The majority (84%) of automatically renewing CSAs require 30 days prior notice to cancel renewal.
Select this option if the contract will not automatically renew when it ends. In these situations, both sides will need to explicitly opt in to the renewal by signing a new Order Form.
Use Limitations
Including use limitations is optional. If no limitations apply, delete this entire row.
Technical Support
Including technical support is optional. If no technical support is included, delete this entire row.
Additions and Modifications
All sections in the Additions and Modifications section are optional. Delete any rows that do not apply.
SLA
From the Benchmark : SLAs are included in 39% of CSAs.
[ Provider will use commercially reasonable efforts to provide and maintain the Cloud Service without excessive errors and interruptions. If Provider does not meet the SLA in two consecutive months or over three months in any 12-month period, then Customer may, as its only remedy, terminate this Order Form upon notice and receive a prorated refund of prepaid Fees for the remainder of the Subscription Period. ]
This is a very basic and lightweight example of SLA language. Modify it to your situation, incorporate your own, or use the Common Paper SLA.
If including professional services, use this option to incorporate an existing SOW or professional services agreement, which will govern the services.
If including professional services, use this option to describe the services directly on this Order Form. Without a separate professional services agreement, the CSA will govern the services.
If only using the CSA to describe the services and fees, describe how the fees will be billed and paid. If referencing an SOW or professional services agreement that already includes fees and payment terms, including those details here isn’t necessary.
Other Changes to Standard Terms
Including Other Changes is optional. Examples of how to use this section can be found in the Language Library.
Free to use under CC BY 4.0
All Common Paper agreements are released under the Creative Commons CC BY 4.0 license, which enables you to use the agreements in any way, as long as you leave in the attribution.
Framework Terms
The Framework Terms operate as an overarching governing document between two organizations. Framework Terms can apply to one or many Order Forms. The Framework Terms are made up of the Key Terms + the Standard Terms. When you combine an Order Form with Framework Terms, you get the Agreement or overall contract.
The Common Paper Cloud Service Standard Terms Version 2.0 posted at commonpaper.com/standards/cloud-service-agreement/2.0
CSA v2 incorporates the Standard Terms by reference, with a link to commonpaper.com/standards/cloud-service-agreement/2.0. Each version of the Standard Terms will remain unchanged and posted our website, and updates will get posted as new versions.
Incorporated by reference
Incorporating the Standard Terms by reference ensures there are no hidden changes in the Standard Terms.
A copy of the Standard Terms is attached for convenience only.
This allows including a copy of the text of the Standard Terms for convenience. You can find a version without the standard terms attached on the cloud service agreement page.
Key Terms
The Key Terms contains the key legal details of each specific contract.
Effective Date
The Effective Date is when the Framework Terms start. If the Effective Date is different than the Order Date, then things like confidentiality obligations start on the Effective Date, while the customer’s access to the product won’t start until the Order Date.
Governing Law
Governing Law identifies the set of laws under which the contract will be interpreted.
From the Benchmark: 71% of CSAs set Governing Law to Delaware. California is the next most common choice.
Chosen Courts
Chosen Courts identifies where a lawsuit related to the contract can be filed in the event of a dispute.
From the Benchmark: 71% of CSAs set Chosen Courts to Delaware. California is the next most common choice.
Covered Claims
Including Covered Claims is optional. Use this Variable to set which claims the provider and/or customer will be responsible for under an indemnity obligation.
Section 9 of the Standard Terms includes the full language around indemnities and Covered Claims, including narrowing the obligation to claims brought by entities other than the provider, customer, end users, or their affiliates (i.e., third party claims).
If there are no Covered Claims, delete the entire row.
[ Any action, proceeding, or claim that the Cloud Service, when used by Customer according to the terms of the Agreement, violates, misappropriates, or otherwise infringes upon anyone else’s intellectual property or other proprietary rights. ]
This reflects a default for Provider Covered Claims (i.e., what indemnification obligations the provider has) set by the Committee. You can modify it in any way to address your particular situation.
From the Benchmark: 76% of CSAs keep this default.
[ Any action, proceeding, or claim that (1) the Customer Content, when used according to the terms of the Agreement, violates, misappropriates, or otherwise infringes upon anyone else’s intellectual property or other proprietary rights; or (2) results from Customer’s breach or alleged breach of Section 2.1 (Restrictions on Customer). ]
This reflects a default for Customer Covered Claims (i.e., what indemnification obligations the customer has) set by the Committee. You can modify it in any way to address your particular situation.
From the Benchmark: 76% of CSAs keep this default.
General Cap Amount
The General Cap Amount is the maximum dollar amount a party to the contract could be responsible for in the event of a legal dispute over the contract. It applies to all contract claims, except for Increased Claims (below), Unlimited Claims (below), and claims that cannot be limited as a matter of law.
Deleting the General Cap Amount does not set it to $0. Instead, it would mean there is no monetary limitation of liability that applies to the contract, and either party could be responsible for an unlimited amount of monetary damages in the event of a legal dispute over the contract.
[ x ]
This option sets a variable liability cap amount that fluctuates with the cost of the contract. It is expressed as a multiple of fees, for example 1x or 2x. This option sets the time period for calculating the fees to the 12 months before the claim.
[ Fill in a number ]x
From the Benchmark: 85% of CSAs select this option and sets the amount to 1x.
paid or payable
Including fees that are “paid or payable” (but potentially unpaid) helps balance the incentives between a provider and customer. If the liability cap is set to the fees paid but does not include payable but unpaid fees, a customer could pay a fraction of the cost they agreed to and limit their liability to that lower amount.
This option sets a fixed liability cap amount. It is expressed as a monetary amount, for example $1,000,000.
In general, a $0 liability cap would be unenforceable.
This option sets a hybrid liability cap amount. It combines the two above options.
Greater
This is set to “greater” rather than “lesser” to avoid situations creating a $0 liability cap, for example where there are zero fees due.
Increased Claims
Including Increased Claims is optional. If using this Variable, it will define certain claims that are not subject to the General Cap Amount, but are instead subject to the Increased Cap Amount (below). In addition, Increased Claims are not subject to the damages waiver in Section 8.2.
If there are no Increased Claims, delete the entire row.
From the Benchmark: Only 13% of CSAs include Increased Claims.
Increased Cap Amount
Including an Increased Cap Amount is optional, but it must be set if you are including Increased Claims. If there are no Increased Claims, delete the entire row.
Unlimited Claims
Including Unlimited Claims is optional. If using this Variable, it will define certain claims that are not subject to any monetary liability cap.
From the Benchmark: Unlimited Claims are rare, appearing in roughly 1% of CSAs.
Because Section 8.4 excludes breaches of confidentiality from the damages waiver, selecting this option as an Unlimited Claim would mean these types of claims are not confined by any limitation of liability, whether by types of damages or monetary amounts.
Because Section 8.4 excludes breaches of confidentiality from the damages waiver, selecting this option as an Unlimited Claim would mean these types of claims are not confined by any limitation of liability, whether by types of damages or monetary amounts.
Additional Warranties
Including Additional Warranties is optional. If there are no Additional Warranties, delete the entire row.
Fill in
In situations where the customer is requesting the provider to provide an intellectual property representation and warranty, you could add the following language: “the Product, when used as authorized by the Agreement, does not and will not infringe or misappropriate anyone else’s copyright, trademark, trade secret, [[U.S.] patent], or right of publicity”.
“U.S.” and “patent” are in brackets, because this type of representation can be tricky for many companies, as it is possible to infringe a patent without necessarily knowing about the patent.
Attachments, Supplements & Modifications
All sections in the Attachments, Supplements & Modifications section are optional. Delete any rows that do not apply.
DPA
A Data Processing Agreement is commonly used by companies that need to comply with the GDPR. GDPR is the legal regulation that protects an individual’s personal data in Europe (EU) and the European Economic Area (EEA). It restricts what companies can and cannot do with the personal data of EU/EEA individuals.
Security Policy
From the Benchmark: Although 37% of CSAs include a security policy, requiring some type of security policy becomes more and more likely as customers become larger enterprises.
Insurance Minimums
From the Benchmark: Only 9% of CSAs include corporate insurance requirements.
Other Changes to Standard Terms
Including Other Changes is optional. Examples of how to use this section can be found in the Language Library.
Copy and use the included Software and Documentation only as needed to access and use the Cloud Service, in each case, for its internal business purposes
This includes the ability for customers to use any included documentation or incidental software, such as a local client.
If a Customer Affiliate enters a separate Order Form with Provider, the Customer’s Affiliate creates a separate agreement between Provider and that Affiliate, where Provider’s responsibility to the Affiliate is individual and separate from Customer and Customer is not responsible for its Affiliates’ agreement.
Affiliates of a customer are able to enter their own Order Form with the provider without having to renegotiate the Framework Terms.
Provider may use all Feedback freely without any restriction or obligation.
Many customers bristle at seeing an assignment in SaaS contracts. This is a lightweight approach to clarify that a provider may use any and all feedback that’s given. If you prefer to be more explicit about intellectual property ownership over Feedback, you could use the Other Changes to the Standard Terms section on the Cover Page to add an assignment for Feedback.
Machine Learning.
In light of the rapid rise in the use of AI to supplement products and services, the Committee opted to include a default clause to permit basic training of AI and machine learning models.
If you prefer to remove the AI training language, you could use the Other Changes to the Standard Terms section on the Cover Page.
Then Provider may temporarily suspend Customer’s access to the Product with or without notice. However, Provider will try to inform Customer before suspending Customer’s account when practical. Provider will reinstate Customer’s access to the Product only if Customer resolves the underlying issue.
Due to the nature of the issues listed in this section, provider has the ability to suspend customer’s access regardless of the materiality of the violation. However, the Committee saw this as a fairly reasonable risk allocation because it is not permanent termination and the customer has the ability to remove the suspension by resolving the underlying issue.
If the parties have a DPA
You can incorporate your own DPA or use the Common Paper DPA.
Prohibited Data
You can add a BAA to authorize sharing patient, medical, or other protected health information regulated by HIPAA, which would otherwise be prohibited by this clause.
Payment & Taxes
CSA v2 supports 2 methods of payment: invoicing with an obligation to pay within a set time (Section 4.2), or automatic payment with a credit card or other payment method (Section 4.3). The details of when payment must be made or how frequently an account is charged are all set in the Payment Process Variable on the Cover Page.
Payment
This standard intentionally does not include fines for late payments. In the experience of Committee members, payment disputes were more often an oversight by the customer rather than an intentionally bad act. Moreover, the time and expense of enforcing late payment fines tend to be more than what a provider recoups; not to mention the strained customer relationship these actions can create.
If adding a late payment penalty is important for you, you could use the Other Changes to the Standard Terms section on the Cover Page to do so.
Automatically renew for additional Subscription Periods unless one party gives notice of non-renewal to the other party before the Non-Renewal Notice Date
As a default, contracts will auto-renew unless someone affirmatively notifies the other company that they wish to not renew. That notice of non-renewal must be given before the Non-Renewal Notice Date, which is on the Order Form and expressed as a set time period before the renewal date (e.g., 30 days before the end of the Subscription Period).
If you do not want a deal to auto-renew, you can change this in the Auto-renewal section of the Order Form.
Effective Date and continue for the longer of one year or until all Order Forms governed by the Framework Terms have ended
The Framework Terms serve as an overarching umbrella agreement. To better facilitate multiple Order Forms, such as one Order Form for an introductory time period like 6 months, followed by a longer term engagement, the Framework Terms will last for at least 1 year. This allows two companies to issue new Order Forms without needing to renegotiate the Framework Terms. It is also helpful if the initial Order Form expires before the two companies have signed the longer term Order Form because it preserves the Framework Terms during that gap in time between the Order Forms.
Termination
There is no termination for convenience, as that is uncommon in SaaS subscription agreements.
In some situations, a customer may want the ability to terminate for convenience after a set time period. This could be because the deal is for a longer time, or because the customer is wary of purchasing a product that is still unproven. If this type of termination right is needed for your deal, you could use the Other Changes to the Standard Terms section on the Cover Page.
Framework Terms or an Order Form
Under Section 5.5, terminating the Framework Terms will end all Order Forms under the terminated terms. However, terminating an Order Form would not affect other Order Forms nor the Framework Terms.
Either party may terminate an affected Order Form upon notice if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days.
Termination under this clause would not terminate unaffected Order Forms nor the overarching Framework Terms.
Section 8.1 (Liability Caps) does not apply to any Unlimited Claims.
Neither the General Cap Amount nor the Increased Cap Amount apply to Unlimited Claims. However, the damages waiver in Section 8.2 still applies to Unlimited Claims. The one exception is if Breach of Section 12 (Confidentiality) is an Unlimited Claim, in which case no cap amount and no damages waiver would apply.
The liability provisions are set this way because the trend in SaaS companies has been to use an Increased Cap Amount, or supercap, for higher risk concerns such as personal data issues. In addition, having fully uncapped and unlimited claims has come to be seen as a risk that is hard to justify. As a result, companies have more and more relied on the damages waiver to have some measure of risk mitigation when they do remove a liability cap on certain claims.
Made by someone other than Customer, Customer’s Affiliates, or Users
This excludes claims by the customer, its affiliates, or Users so that provider is not responsible for first party claims. In other words, a customer could not sue the provider and then seek indemnification coverage for the lawsuit they filed.
Made by someone other than Provider or its Affiliates
This excludes claims by the provider or its affiliates, so that the customer is not responsible for first party claims. In other words, a provider could not sue the customer and then seek indemnification coverage for the lawsuit they filed.
Exclusive Remedy
It is very common for indemnification obligations to be the sole and exclusive remedy for claims that are subject to indemnity. This is important in situations where there is overlap between other contractual obligations or commitments (such as representations and warranties) and claims that are subject to indemnity.
Governing Law and Chosen Courts
Common Paper standard agreements were created with the laws of the United States in mind by a committee of US-based attorneys.
The parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.
Some companies prefer arbitration for speed and confidentiality reasons. You could use the Other Changes to the Standard Terms section on the Cover Page to add mandatory arbitration.
However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates.
Alternatively, you could use the Other Changes to the Standard Terms section on the Cover Page to permit assignment to any Affiliate, or to prohibit all assignment.
Logo Rights
With CSA v2, the default is to allow providers to use customer’s name and logo to identify the customer as a user of the product, for example on a customer list webpage.
Some customers prefer to remove the grant of any logo rights, which you could do by using the Other Changes to the Standard Terms section on the Cover Page.
However, if the Order Form and the governing Framework Terms omit or do not define a Variable, the default meaning will be “none” or “not applicable” and the correlating clause, sentence, or section does not apply to that Agreement.
Some Variables are optional. When optional Variables are removed from the Cover Page, the related clauses will not apply to the contract.
Free to use under CC BY 4.0
All Common Paper agreements are released under the Creative Commons CC BY 4.0 license, which enables you to use the agreements in any way, as long as you leave in the attribution.
