Service Agreement

This Services Agreement ( “Agreement”) is by and between CieloIT, LLC d/b/a “CieloVision” (“Cielo”) of 5830 Granite Parkway, STE 100-221, Plano, TX 75024 and the party that accepts this Agreement (“Client”). Client and Cielo are each a “Party” and together the “Parties.” This Agreement establishes the terms and conditions governing Client’s use of Cielo’s CieloVision Intelligent Signage and Perceptive AI Platform (“Platform”).

 

The person who accepts this Agreement (“You”) on behalf of an employer or other legal entity represents and warrants that he or she has reviewed this Agreement in full and has the authority to bind such employer or other legal entity to all of the terms and conditions herein. If You do not have such authority, do not accept this Agreement.

 

1. STATEMENT OF WORK 

 

The specific services purchased by Client will be listed on one or more statements of work or order forms (“SOW(s)”) agreed to by the Parties, which SOWs shall be considered incorporated into this Agreement. Each SOW shall specify the term, services, deliverables, service levels, payment terms, and any other conditions specific to the engagement (“Services”). If there is any conflict between this Agreement and an SOW, this Agreement shall control unless the SOW expressly states otherwise.

 

Any modifications to a Statement of Work, including but not limited to cost adjustments or deliverables, must be documented through a written change order agreed to by the Parties. 

 

• TERM; TERMINATION OPTIONS

This Agreement becomes effective on the date Client accepts the Agreement together with an applicable SOW (“SOW Effective Date”). Each SOW will specify a term of twelve (12), twenty-four (24), or thirty-six (36) months, as selected by Client (“Term”). Such acceptance may be made through electronic means provided by Cielo.  

Subject to early termination, each SOW shall terminate automatically at the end of its Term unless otherwise expressly renewed in writing by the Parties. Automatic renewal shall not apply unless expressly stated in the applicable SOW.

This Agreement will remain in effect for each SOW during its applicable Term. Upon expiration or non-renewal of a SOW, the Agreement will continue in effect with respect to any remaining active SOW(s).

 

• EQUIPMENT; EARLY TERMINATION; EQUIPMENT FEES

3.1 Equipment. Cielo provides equipment for use by Client at the Client site(s) specified in the applicable SOW (“Equipment”). Title to the Equipment shall remain with Cielo unless and until ownership transfers to Client pursuant to this Agreement. Client acknowledges that SOW fees include Equipment use and are heavily subsidized based on Client’s commitment to receive Services for the applicable Term. The terms and conditions of any applicable warranty services provided for the Equipment are contained in the CieloVision One-Intelligent Signage Customer Return & Warranty (“R&W Policy”).

3.2 Initial 30-Day Evaluation Period. During the first thirty (30) days following an SOW’s Effective Date (“Evaluation Period”), Client may terminate the Services in that SOW upon notice to Cielo in accordance with this Agreement and the R&W Policy. If Client terminates during the Evaluation Period: (a) Client shall return all applicable Equipment to Cielo per Cielo’s return instructions; and (b) any fees paid for the first month of that SOW’s Services shall be refunded less reasonable shipping and handling costs. Instructions and requirements for submitting a termination notice under this Section 3 are contained in the R&W Policy.

 

3.3 Early Termination for Convenience. After the Evaluation Period, Client may terminate an SOW for convenience at any time upon notice to Cielo (per instructions and requirements in the R&W Policy), subject to payment of the applicable Early Termination Equipment Fee set forth below. The date on which Cielo receives the termination notice shall be the “Termination Date.” 

 

The Early Termination Equipment Fee shall be determined based on the amount of time elapsed between the applicable SOW Effective Date and the Termination Date, as follows:

 

• 31 days through fewer than 12 full months:  $2,500 per site + $600 per display

 

• 12 months through fewer than 24 full months:  $1,500 per site + $400 per display

 

• 24 months through fewer than 36 months:  $1,000 per site + $200 per display

 

The length of time elapsed shall be measured based on the number of full months completed as of the Termination Date. Partial months shall not be rounded up. A month shall be deemed completed on each monthly anniversary of the SOW Effective Date. For example, if the SOW Effective Date is January 7 and the Termination Date occurs on or after January 7 of the following year, twelve (12) full months shall be deemed completed and the second-tier fee shall apply.

 

3.4 Effect of Early Termination for Convenience. Except for (a) amounts accrued and unpaid prior to the Termination Date and (b) the applicable Early Termination Equipment Fee, Client shall have no further obligation under a properly terminated SOW. Upon payment of the Early Termination Equipment Fee, ownership of the Equipment shall automatically transfer to Client on an “AS IS, WHERE IS” basis, without representations or warranties of any kind, except for any transferable manufacturer warranties. Cielo shall have no further liability under a terminated SOW.

 

• ADDITIONAL TERMS

 

4.1 Assignment and Outside Contractors. Cielo may engage persons or entities it reasonably deems necessary for the purpose of performing the Services; provided, however, that Cielo shall remain responsible for the performance of all such Services.

 

4.2 Client Responsibilities. Client will use the software / equipment / IT system / technicians covered under this Agreement or any SOW or Service Orders as intended. Client will (a) notify Cielo of any issues or problems with said software / equipment / IT system / technicians in a timely manner; (b) provide Cielo with access to the software / equipment / IT system / technicians for the purposes of maintenance, updates and fault prevention; (c) keep Cielo informed about potential changes to its IT system; and (d) maintain good communication with Cielo at all times. 

 

4.3. Legal Requirements. Client acknowledges and agrees that Client is solely and exclusively responsible for ensuring that its use of the Services, including activity conducted through or enabled by the Services, is and remains in full compliance with all applicable federal, state, and local laws, rules, regulations, ordinances, directives, governmental guidance, and statutory requirements (“Applicable Laws”), including without limitation those relating to: advertising, marketing, promotions, and endorsements; consumer protection and unfair business acts and practices; data privacy, data security, data collection, and data retention; surveillance, monitoring, recording, video analytics, demographic estimation, or sensor‑based technologies; wiretapping, eavesdropping, interception, or similar communications‑related prohibitions; and any industry‑specific rules, standards, or codes of conduct applicable to Client’s operations. Cielo has no obligation to monitor, advise, review, audit, or validate Client’s compliance with Applicable Laws and assumes no responsibility for determining whether Client’s intended or actual use of the Services is lawful. All such determinations shall be made solely by Client at Client’s expense. Cielo makes no representation or warranty regarding the legality of Client’s specific use case, configuration or deployment of the Services, including any content uploaded to the Services by Client.

 

Client shall, at all times, implement all notices, disclosures, consents, signage, policies, settings, and safeguards that may be required under Applicable Laws, including but not limited to those relating to: (a) the use of cameras or sensors; (b) the collection or processing of data derived from individuals or environments, including profiling; and (c) the targeting, personalization, or display of advertising content.  

 

• BILLING AND PAYMENTS

 

5.1 Charges and Billing. Client shall pay all monthly recurring charges (“MRC”) in advance and all other Charges monthly in arrears. All Charges shall be payable in U.S. Dollars, no later than fifteen (15) days from the invoice date (“Due Date”) and shall be exclusive of any applicable taxes.

 

“Charges” means the fees, rates and charges for the Services, as specified in the applicable SOW or as otherwise invoiced by Cielo pursuant to the Agreement. Unless otherwise agreed to by the Parties in writing, Charges for each SOW shall begin to accrue on the date the Services are provisioned by Cielo. Charges for the Services are subject to change at any time if third party charges in connection with a Service are increased or newly charged to Cielo.

 

5.2 Late Payments. A late fee of 5 percent (5%) of overdue amounts will be assessed for a payment made ten (10) days or more after the Due Date, subject to the maximum permitted by applicable law. If Cielo uses a collection agency or attorney to collect a late payment or returned payment, Client agrees to pay all reasonable costs of collection or other action. These remedies are in addition to and not in limitation of any other rights and remedies available to Cielo under the Agreement, at law or in equity.

 

5.3 Taxes and Other Fees. All Charges for the Services are exclusive of any taxes and other fees and surcharges. Client shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, and bypass (“Taxes”).

 

5.4 Invoice Disputes. To the extent that Client disputes any portion of an invoice in good faith, it shall notify Cielo in writing and provide detailed documentation supporting its dispute within thirty (30) days of the invoice date or the Client’s right to any billing adjustment shall be waived. In the event of a billing dispute, Client shall timely pay all undisputed amounts. If the dispute is resolved against Client, Client shall pay such amounts due plus interest from the original Due Date. Client may not offset disputed amounts from one invoice against payments due on the same or another account.

 

5.5 Refunds. The fees charged under this Agreement are non-refundable, except as set forth in Section 3.2. Partial refunds requested prior to commencement of the Services may be given at Cielo’s discretion, subject to an administrative and cancellation fee of 15% of the fees already paid.

 

• ADDITIONAL DOCUMENTS

 

The following additional documents as amended or modified from time to time (“Additional Documents”) are incorporated into this Agreement by reference. By accepting this Agreement, Client accepts the terms of the Additional Documents.

 

1. Privacy Policy (available at www.cielovision.com (“Website”)).
2. Terms and Conditions (available on the Website).
3. Cielo End User License Agreement (“EULA”) (presented when accessing the software used in connection with the Platform). All authorized users must agree to the EULA in order to access the Platform.  
4. To the extent necessary to access and use the Platform and Services, the license terms, notices and acknowledgements of any third party software or components, such as content management platforms or open source software (available upon request).
5. CieloVision One-Intelligent Signage Customer Return & Warranty Policy (available https://cielovision.com/returns-exchanges).

 

• LIMITED WARRANTY

 

7.1 Limited Warranty. Cielo warrants, for a period of thirty (30) days following delivery of any Services hereunder (the “Warranty Period”) that all Services will be performed in a professional manner and in accordance with generally applicable industry standards. Cielo’s sole liability (and Client’s exclusive remedy) for any breach of this Warranty shall be for Cielo to re-perform any deficient Services, or, if Cielo is unable to remedy such deficiency within ninety (90) days, to void the invoice for the deficient Services. Cielo shall have no obligation with respect to any Warranty claim if (1) it is notified of such claim after the Warranty Period or (2) the claim is the result of third-party hardware or software, the actions or omissions of Client, or the actions or omissions of some other party or is otherwise caused by factors outside the reasonable control of Cielo. Any warranties relating to Equipment are set forth in the R&W Policy.

 

THIS SECTION IS A LIMITED WARRANTY AND SETS FORTH THE ONLY WARRANTIES MADE BY CIELO. CIELO MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY GOODS AND/OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM THE COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY CIELO. CLIENT MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.

 

7.2 Service Order Completion and Acceptance.  Each SOW will include a defined timeline with milestone-based deliverables. Upon completion of each milestone or final Service Order deliverable, Client shall have 7 business days (“Acceptance Period”) to review and confirm that the work meets agreed-upon specifications. If no written objections are raised within the Acceptance Period, the work shall be deemed accepted, and Cielo shall invoice the remaining balance for that milestone or Service Order.

If Client identifies deficiencies in the deliverables, Client must notify Cielo in writing before the end of the Acceptance Period, providing specific details of the deficiencies. Cielo shall have a reasonable period to correct such deficiencies. If Client fails to provide timely notice, Cielo shall have no further obligation to make corrections, and the deliverables shall be deemed fully accepted.

 

• LIMITATION OF LIABILITY

 

8.1 Aggregate Limit of Liability. CLIENT UNDERSTANDS AND AGREES THAT CIELO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OR INCREASED EXPENSE OF USE CLIENT OR ANY THIRD PARTY INCURS), WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR STRICT LIABILITY, EVEN IF CIELO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES. CIELO SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS WHICH MAY OCCUR AS A RESULT OF THE USE OF ANY THIRD-PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL THE AGGREGATE AMOUNT CLIENT MAY RECOVER FROM CIELO UNDER THIS AGREEMENT FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES, OR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES AND/OR THIS AGREEMENT, FROM ANY CAUSE OR CAUSES, INCLUDING BUT NOT LIMITED TO CIELO’S NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY (“CLIENT’S CLAIMS”) EXCEED THE TOTAL PAYMENTS MADE TO CIELO BY CLIENT PURSUANT TO THIS AGREEMENT IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. THE FOREGOING SUM REPRESENTS CIELO’S TOTAL LIABILITY FOR ALL OF CLIENT’S CLAIMS. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF CIELO.

 

8.2 Exclusions. Without limiting anything herein, Cielo shall not be liable to Client or any third parties, under Sections 8 or 9 or otherwise, for claims, delays or failures caused by any of the following (collectively, “Exclusions”):

 

1. Client’s failure to provide necessary approvals, materials, or access.
2. Changes to originally accepted scopes, drawings, schematics, and materials that were used to derive the accepted quote and SOW.
3. Third-party vendors, contractors, or services engaged by Client. 
4. Unforeseen regulatory changes or compliance requirements imposed after initiation of Services.
5. Use of Equipment, software or Services in a way that is not recommended or legally permissible.
6. Issues resulting from unauthorized changes made by Client to the configuration or setup of Equipment, software or Services.
7. Issues caused by Client’s actions that prevented or hindered Cielo in performing required and recommended maintenance upgrades.
8. Issues resulting from work performed by Client or any of its contractors other than Cielo on the systems, software and Equipment related to the Platform.

 

• INDEMNITY

 

9.1 Release and Indemnification. Each Party agrees to release, indemnify, defend, and hold harmless (“Indemnifying Party”) the other Party, its directors, officers, employees, and agents, successors and assigns (“Indemnified Party”), from and against all claims, losses, expenses, fees, damages, and liabilities, including reasonable attorney fees and disbursements, costs, and judgments, sustained in any action commenced by any third party in connection with the Indemnifying Party’s performance of, or failure to perform, its obligations and duties under this Agreement, except for those damages, costs, expenses and liabilities arising from the negligence or willful misconduct of the Indemnified Party; provided, however, that Cielo is not obligated to indemnify Client, and Client shall defend and indemnify Cielo hereunder, for any claims by any third party, including any clients and/or customers of Client, arising from services provided by Client that incorporate any of the Services being provided by Cielo hereunder, including but not limited to (a) the violation of any applicable law by the Client or the Client’s clients and/or customers; (b) damage to property or personal injury (including death) arising out of the acts or omissions of Client’s clients and/or customers; (c) termination or suspension of Services of Client or Client’s clients and/or customers due to a Client Default; (d) claims by any third party, including without limitation Client’s clients and/or customers, arising out of or related to the use or misuse of any Service; and (e) any of the Exclusions. In all claims for Indemnity under this paragraph, the Indemnifying Party’s obligation shall be calculated on a comparative basis of fault and responsibility. Neither Party shall be obligated to indemnify the other in any manner whatsoever for claims, losses, expenses, or damages resulting from the other Party’s own negligence.

 

9.2 Indemnification Procedures. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such suit or claim and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The Indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the Indemnified Party. The Indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the Indemnifying Party.

 

• CONFIDENTIALITY; DATA PROTECTION; INTELLECTUAL PROPERTY

 

10.1 Confidentiality. Each Party acknowledges that, in connection with this Agreement, it may be furnished with, or given access to, certain confidential and/or proprietary information of the other Party, and that, subject to the provisions of this section, such information shall not be disclosed by the Party receiving the information to any third party, and shall not be used by either Party for purposes other than those contemplated by this Agreement.

 

10.2 Information Subject to Confidentiality. Confidential Information may include, but is not limited to: (a) materials regardless of form furnished by either Party to the other for use with this Agreement; (b) information furnished by any Party that is stamped “confidential,” “proprietary,” or with a similar legend, or any information that any Party makes similar reasonable efforts to maintain secret; (c) business or marketing plans, strategies, customer lists, operating procedures, design formulas, know-how, processes, programs, software, inventories, discoveries, improvements of any kind, sales projections, strategies, pricing information, and other confidential trade secrets, data, and knowledge of either Party; (d) information belonging to employees, agents, members, shareholders, owners, customers, suppliers, vendors, contractors, business partners, and affiliates of either Party; (e) non-public inventions, the rights to which have not been assigned to the Party receiving the information; (f) non-public and proprietary technical information belonging to either Party, the rights to which have not been assigned to the party receiving the information; (g) non-public and proprietary technical information belonging to Cielo, sub-contractors, vendors, and partners the rights to which have not been assigned to the party receiving the information; and (h) other proprietary information owned by either Party which are valuable, special and/or unique assets of that Party.

 

Without limiting the foregoing, any templates, schematics, processes, or technical documentation provided by Cielo shall be deemed Cielo Confidential Information. Client may use such information solely for its own internal  business purposes in connection with the Services.

 

10.3 Non-Disclosure. Neither Client nor Cielo will disclose or use, either during or after the term of this Agreement, in any manner, directly or indirectly, any Confidential Information of the other Party, for their own benefit or the benefit of any third party except to the extent specifically permitted under this Agreement. 

 

Both Parties will protect all Confidential Information of the other, and will treat it as strictly confidential, unless and until: (a) said information becomes known to third parties not under any obligation of confidentiality to the party whose confidential information is at issue (“Disclosing Party”) or becomes publicly known through no fault of the other party (the “Receiving Party”); (b) said information was already in the Receiving Party’s possession prior to its disclosure, except in cases where the information has been covered by a preexisting confidentiality agreement; (c) said information is subsequently disclosed by a third party not under any obligation of confidentiality to the Disclosing Party; (d) said information is required to be disclosed by court order or governmental law or regulation, provided that the Receiving Party gives the Disclosing Party prompt notice of any such requirement and cooperates with the Disclosing Party in attempting to limit such disclosure; or (e) said information is proven independently developed by the Receiving Party without recourse or access to the information.

 

A violation of this section shall be a material violation of this Agreement.

 

10.4 Employees and Agents. The Parties further agree to disclose the Confidential Information to their officers, directors, employees, contractors, and agents (collectively, “Agents”) solely on a need-to-know basis and represent that such Agents have signed appropriate non-disclosure agreements and/or that the Party receiving Confidential Information has taken appropriate measures imposing on such Agents a duty to (a) hold any Confidential Information received by such Agents in the strictest confidence, (b) not to disclose such Confidential Information to any third party, and (c) not to use such Confidential Information for the benefit of anyone other than the Party to whom it belongs, without the prior express written authorization of the Party disclosing same or as specifically permitted in this Agreement.

 

10.5 Unauthorized Disclosure of Confidential Information. If either Party discloses or threatens to disclose the other Party’s Confidential Information to another party or to the Disclosing Party’s detriment or damage in violation of this Agreement, the Party whose information is at issue will suffer irreparable damage and shall be entitled to an award by any court of competent jurisdiction of a temporary restraining order and/or preliminary injunction to restrain the other Party from such unauthorized use or disclosure, in whole or in part, of such Confidential Information, without the need to post a bond, and/or from providing services to any party to whom such information has been disclosed or may be disclosed.

 

The infringing party further agrees to reimburse the Disclosing Party for any loss or expense incurred as a result of the infringement, including but not limited to court costs and reasonable attorney fees incurred by the Disclosing Party in enforcing the provisions of this Agreement, in addition to any other damages which may be proven. The Parties shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.

 

10.6 Data Protection. The Parties acknowledge that Cielo may have access to certain of Client’s computer and communications systems and networks for the purposes set forth in this Agreement. If any data is made available or accessible to Cielo, its employees, agents or contractors by Client pertaining to Client’s business or financial affairs, transactions, clients, customers, partners, or vendors, including personally identifiable information as defined under applicable law (“PII”), (collectively, “Client Data”), Cielo will not store, copy, analyze, monitor, or otherwise use such Client Data except for the purposes set forth in this Agreement or SOW or as otherwise specifically permitted herein. Client is solely responsible for ensuring all Client Data is legally obtained and permissible for processing as contemplated by this Agreement. Client shall not provide or make accessible to Cielo protected health information, as defined under and subject to U.S. federal law, or PII of non-U.S. residents. Cielo may at its option process Client Data to create data sets that do not contain Client trade secrets, Confidential Information or PII (“Data Sets”). Cielo shall have the right to use and disclose Data Sets for its own purposes, including without limitation to analyze and improve Cielo’s services, provided that any Data Sets disclosed to a third party shall not be attributed to Client. 

 

10.7 Intellectual Property. The Services incorporate Cielo’s pre-existing intellectual property, including its Platform, software, methodologies, templates, configurations, analytics logic, know-how, documentation and tools (“Cielo IP”). As between the Parties, Cielo retains all right, title, and interest in and to the Cielo IP and all improvements, enhancements, modifications, and derivative works thereof. Client retains ownership of materials and data it provides. “Work Product” means the Client-specific outputs, reports, analyses, visualizations, configurations as applied for Client’s use, and other deliverables generated for Client through the Services pursuant to an applicable SOW, excluding Cielo IP and any derivatives of Cielo IP.  Subject to payment of all fees, Cielo grants Client a limited, non-exclusive, non-transferable, non-sublicensable license to use the Platform and Work Product solely for Client’s internal business purposes during the applicable Term in accordance with an applicable SOW. No ownership rights are transferred and no implied licenses are granted.

 

• DEFAULT; REMEDIES; LIQUIDATED DAMAGES; EQUIPMENT PURCHASE

 

11.1 Default by Client. Client shall be in default of this Agreement (each, a “Client Default”) if Client: (a) fails to cure any monetary breach within ten (10) days after receipt of written notice; (b) fails to cure any non‑monetary breach of any material term of this Agreement or an applicable SOW within thirty (30) days after receipt of written notice; or (c) files or initiates, or has filed or initiated against it, any proceeding seeking liquidation, reorganization, winding up, or other relief under any bankruptcy, insolvency, or similar law, including the appointment of a trustee, receiver, liquidator, custodian, or similar official.

 

11.2 Remedies Upon Client Default. In the event of a Client Default, Cielo may, in its discretion and without limiting any other rights or remedies: (a) suspend the Services in whole or in part until the Client Default is cured; (b) cure a non‑monetary breach on Client’s behalf, at Client’s expense, and invoice Client for the reasonable costs incurred; and/or (c) terminate this Agreement and/or any applicable SOW. If Cielo terminates this Agreement and/or any applicable SOW pursuant to a Client Default, Client shall be obligated to (a) return the Equipment per Cielo’s instructions and remit reasonable shipping and handling fees to Cielo if the termination occurs within 30 days of the applicable SOW Effective Date or (b) pay the Early Termination Equipment Fee as determined by Section 3 if the termination occurs 31 or more days after the applicable SOW Effective Date. The foregoing remedies are cumulative and are in addition to, and not in substitution for, any other remedies available to Cielo under this Agreement, at law, or in equity.

11.3 Default by Cielo. Cielo shall be in default of this Agreement (a “Cielo Default”) if it fails to cure any non‑monetary breach of a material term of this Agreement within thirty (30) days after receiving written notice of such breach from Client; provided, however, that Client acknowledges and agrees that service‑related failures, interruptions, or degradation in performance shall not constitute a Cielo Default and are subject solely to the remedies expressly set forth in the Limited Warranty and Limitation of Liability provisions of this Agreement.

Upon an uncured Cielo Default, Client may terminate the affected SOW(s) and this Agreement upon written notice to Cielo. Any such termination shall not relieve Client of its obligation to pay all amounts accrued and payable prior to the effective date of termination. If the Services cease due to a Cielo Default and Client terminates the applicable SOW or this Agreement in accordance with this section, Client shall return all Equipment in accordance with Cielo’s return instructions, at Cielo’s expense, and title to such Equipment shall remain with Cielo. 

 

• MISCELLANEOUS

 

12.1 Electronic Communications, Notices, and Signatures. The Parties expressly consent to transact business electronically and agree that any notices, disclosures, consents, agreements, amendments, approvals, invoices, or other communications required or permitted under this Agreement may be provided by electronic means, including without limitation email, electronic messaging via Cielo’s service platform or account portal, or other electronic methods designated by Cielo. Electronic communications shall be deemed given when transmitted to the designated electronic address or made available through such platform.

 

This Agreement and any SOW, amendment, or other related document may be executed and accepted electronically, including through click‑wrap acceptance, electronic acknowledgment, or electronic signature, and each such electronic execution shall be deemed an original for all purposes. The Parties agree that electronic records and signatures shall be admissible in any proceeding to enforce this Agreement and shall not be denied legal effect solely because they are in electronic form. 

 

12.2 Entire Agreement. This Agreement, together with all documents that are incorporated by reference, constitute the entire agreement between the Parties, represent the final expression of the Parties’ intent and agreement relating to the subject matter hereof, contain all the terms and conditions that the Parties agreed to relating to the subject matter, and replaces and supersedes all prior discussions, understandings, agreements, negotiations, e-mail exchanges, and any and all prior written agreements between the Parties. Any subsequent changes to the terms of this Agreement may be amended or waived only with the written consent of both Parties and shall be effective upon being signed by both Parties.

 

12.3 Severability. If any provision of this Agreement is declared by any court of competent jurisdiction to be illegal, void, unenforceable, or invalid for any reason under applicable law, the remaining parts of this Agreement shall remain in full force and effect and shall continue to be valid and enforceable. If a court finds that an unenforceable portion of this Agreement may be made enforceable by limiting such provision, then such provision shall be deemed written, construed, and enforced as so limited.

 

12.4 Successors and Assigns. Neither Party may assign or transfer this Agreement or its obligations under this Agreement without the prior written consent of the other Party, which may not be unreasonably withheld; provided, however, that Cielo may assign or transfer this Agreement in the event of a sale of all or substantially all of its assets. Any purported assignment in violation of this section shall be void. This Agreement shall be binding on and inure to the benefit of the Parties’ respective successors and assigns.

 

12.5 Independent Contractor Status. It is understood by both Parties that Cielo is an independent contractor, and is not an employee, partner, joint venturer, or agent of the Client. Neither Party shall hold itself out as representing the other Party or bind or attempt to bind the other Party to any contract. Unless this Agreement or SOW specifically states otherwise, the manner in which the Services are to be performed shall be determined by Cielo.

 

12.6 Survival. All provisions that logically ought to survive termination of this Agreement, including but not limited to Sections 3 and 5-12, shall survive the expiration or termination of this Agreement.

 

12.7 No Waiver. The failure of any Party to insist upon strict compliance with any of the terms, covenants, duties, agreements, or conditions set forth in this Agreement, or to exercise any right or remedy arising from a breach thereof, shall not be deemed to constitute waiver of any such terms, covenants, duties, agreements, or conditions, or any breach thereof.

 

12.8 Force Majeure. Either Party who fails to timely perform its obligations under this Agreement (“Nonperforming Party”) shall be excused from any delay or failure of performance required hereunder if caused by reason of a Force Majeure Event as defined herein, subject to the following:

 

“Force Majeure Event” means any event, circumstance, occurrence or contingency, regardless of whether it was foreseeable, which is (a) not caused by, and is not within the reasonable control of, the nonperforming Party and (b) prevents the Nonperforming Party from its obligations under this Agreement. Such events may include, but are not limited to: acts of war; insurrections; fire; laws, proclamations, edicts, ordinances, or regulations; strikes, lock-outs, or other labor disputes; riots; explosions; hurricanes, earthquakes, floods, and other acts of nature; cyberattacks against critical infrastructure or third-party service providers; pandemics or other public health emergencies declared by governmental authorities; and widespread supply chain failures or disruptions affecting essential hardware, software, or telecommunications services necessary for performance under this Agreement.

 

The obligations and rights of the Nonperforming Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations under this Agreement shall resume. In the event that the interruption of the Nonperforming Party’s obligations continues for a period in excess of thirty (30) days, either Party shall have the right to terminate this agreement upon ten (10) days’ prior written notice to the other Party.

 

Upon occurrence of a Force Majeure Event, the Nonperforming Party shall (i) immediately make all reasonable efforts to comply with its obligations under this Agreement; (ii) promptly notify the other Party of the Force Majeure Event; (iii) advise the other Party of the effect on its performance and estimated delay; and (iv) provide the other Party with reasonable updates.

 

12.9 Mediation and Arbitration. If a dispute arises under this Agreement, the Parties hereby agree to first attempt to resolve said dispute by submitting the matter to a mutually agreed-upon mediator in the State of Texas. The Parties agree to share any mediation costs and fees, other than their respective attorney fees, equally. If the dispute is not resolved through mediation, the Parties agree to submit the dispute to binding arbitration in accordance with the rules of the American Arbitration Association, and each Party hereby consents to any such disputes being so resolved. Judgment on the award so rendered in any such arbitration may be entered in any court having jurisdiction thereof.

 

12.10 Choice of Law and Forum. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, excluding that State’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise, shall likewise be governed by the laws of the State of Texas, excluding that State’s choice-of-law principles.  Any litigation permitted notwithstanding Section 12.9 shall be brought exclusively in Lubbock County, Texas.

 

12.11 Attorney Fees. In the event that any arbitration, suit or action is instituted to resolve a dispute pertaining to matters covered under this Agreement, or enforce any provision thereof, the prevailing Party in any such dispute or proceeding shall be entitled to recover from the losing Party all fees, costs, and expenses of enforcing any right of such prevailing Party under or with respect to this Agreement, including without limitation, all reasonable fees and expenses of attorneys and accountants, court costs, and expenses of any appeals.

12.12 Counterparts. The Parties agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be deemed one and the same Agreement.