Terms of Service Agreement
Kiapo Private Clouds Program

1. Services Provided

   Kiapo ("Provider") will provide the Kiapo Private Clouds program ("Services") to the Customer, consisting of cloud resources and services designed to augment and enhance on-premise IT deployments in the formation of private clouds. Specific services included are outlined in the attached Service Description.

2. Pricing and Term

   1. Services are priced per employee and will fluctuate based on the number of monthly employees. A minimum threshold of 25 employees applies unless otherwise specified by a superseding agreement.

   2. Price Adjustment Limits

      1. Price Cap: The per-employee rate shall not increase by more than the greater of:
         1. An average of 3% per year, calculated from the last price adjustment or the commencement of services, whichever is more recent. This allows for flexibility in timing and amount of increases, provided that over any given period, the average annual increase does not exceed 3%. For example:
            • A 6% increase could be applied once every two years
            • A 9% increase could be applied once every three years
            • Two 4.5% increases could be applied over a three-year period
         2. The annual inflation rate as determined by the Producer Price Index for Final Demand (PPI-FD), not seasonally adjusted, as published by the U.S. Bureau of Labor Statistics.
      2. Calculation Period: For the PPI-FD rate, the index used for adjustment will be the most recently published annual rate at the time of the price adjustment notice. For the average annual increase calculation, the period will start from the last price adjustment or the commencement of services, whichever is more recent.
      3. Notification: Provider will give Customer at least 60 days' written notice of any price adjustments.
      4. Effective Date: Price adjustments can take effect at any time, provided the notification period is observed and the average annual increase limit is not exceeded.
      5. Price Decreases: There is no limit on price decreases. Provider may reduce prices at any time, with such reductions taking effect immediately upon notification to the Customer.
   3. This agreement and all associated cloud resources will terminate 3 years from the date of written notice provided by either party, or unless a specific written transfer agreement is in place in the case of public clouds.

   4. Data Center Resources Pricing

      1. Definition: Data center resources include, but are not limited to:
         1. Infrastructure as a Service (IaaS) components such as storage, network, and compute resources
         2. Platform as a Service (PaaS) offerings
         3. Software as a Service (SaaS) solutions that may be incorporated into our service offerings
         4. Necessary software and hardware licensing
         5. Any combination of VM, storage, network, and licensing resources that may transition to PaaS/SaaS models in the future
      2. Price Adjustments: Due to the variable nature of data center resource costs, which are often beyond the Provider's direct control, price adjustments for these resources may occur as follows:
         1. The Provider reserves the right to adjust prices for data center resources to reflect changes in costs from third-party vendors, including but not limited to data center rates, software licensing fees, and hardware licensing costs.
         2. These adjustments are not subject to the cap specified in section 2.2 and may exceed the greater of 3% or the PPI-FD rate.
      3. Notification: Provider will give Customer at least 60 days' written notice of any price adjustments related to data center resources.
      4. Effective Date: Price adjustments for data center resources may take effect at any time, as dictated by third-party vendor changes, following the 60-day notification period.
      5. Optimization Efforts: Provider will make reasonable efforts to optimize the use of data center resources and mitigate cost increases where possible.
      6. Customer's Right to Terminate: In the event of a price increase for data center resources exceeding the greater of:
         1. 10% in any 12-month period, or
         2. The current annual inflation rate as measured by the Producer Price Index for Final Demand (PPI-FD), not seasonally adjusted, as published by the U.S. Bureau of Labor Statistics,
         the Customer shall have the right to terminate the affected services without penalty, provided written notice is given within 30 days of receiving the price increase notification.
      7. Data Transfer and Termination:
         1. Upon termination of the Kiapo Private Cloud agreement, all resources provided at the Provider's data center will be decommissioned.
         2. If the Customer requires transfer of data from the private cloud and/or on-premises infrastructure to a public cloud or other destination upon termination, a separate written agreement will be required.
         3. This transfer agreement will outline:
            • The scope of data to be transferred
            • The destination of the transferred data
            • The timeline for the transfer process
            • Associated costs for the transfer service
            • Any ongoing support or transition services, if applicable
         4. The Provider will not commence any data transfer activities until this separate agreement is in place.
         5. The Customer acknowledges that without such an agreement, they risk losing access to data stored in the Provider's data center upon termination of the Kiapo Private Cloud agreement.

3. Support for Legacy Infrastructure

   1. Definition of Customer Premise Infrastructure: "Customer Premise Infrastructure" refers to all hardware, software, and network components located at the customer's physical location that are integral to the delivery of Kiapo Private Clouds services.
   2. Support for Aging Infrastructure: Support for Customer Premise Infrastructure older than five (5) years is provided at the discretion of the Provider. While the Provider typically chooses to support such infrastructure, additional charges may apply for maintenance and support of equipment exceeding this age limit.
   3. Rationale: This clause is implemented to encourage regular infrastructure updates, ensuring optimal performance and security, and to mitigate excessive time spent on break/fix cycles for aging equipment.

4. Addition of New Infrastructure

   1. New infrastructure added while the Kiapo Private Clouds program is in effect must be acquired, installed, and configured through Kiapo Private Clouds or with explicit agreement from the Provider.
   2. Exceptions: The Provider may allow the addition of certain end-user peripherals and devices without prior approval, provided they can be integrated into the existing infrastructure with minimal impact. Such exceptions may include, but are not limited to:
      1. Printers
      2. Scanners
      3. Tablets
      4. Monitors
      5. Fax machines
      6. Keyboards and mice
      7. Webcams and microphones
      8. External storage devices (e.g., USB drives)
      9. Other non-networked or simple plug-and-play devices

      The Provider reserves the right to require removal or reconfiguration of any device that causes conflicts with the existing infrastructure or poses security risks.

   3. Prohibited Additions: The customer is prohibited from independently adding major infrastructure components without prior written approval from the Provider. This includes, but is not limited to:
      1. Network switches
      2. Routers
      3. Wireless access points
      4. Workstations brought into the network outside of Kiapo Private Clouds deployment-imaging solution
      5. Servers
      6. Storage devices (excluding end-user external storage mentioned in 4.2)
      7. Network-attached printers or multifunction devices not approved by the Provider

      This prohibition ensures that all major components are properly integrated, secured, and managed within the Kiapo Private Clouds infrastructure.

   4. Rationale: This clause ensures compatibility, security, and proper integration of new components with the existing Kiapo Private Clouds infrastructure.

5. Limitation of Liability

   1. In no event shall provider be liable for any indirect, incidental, special, exemplary, or consequential damages, including but not limited to, procurement of substitute goods or services, loss of use, data, or profits, or business interruption, however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of the services, even if advised of the possibility of such damage.
   2. Provider's total cumulative liability for any and all claims in connection with the services will not exceed the amount of fees paid by customer to provider for the services during the 12 month period preceding the event giving rise to the claim.

6. Warranty Disclaimer

   The services are provided "as is" without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Provider does not warrant that the services will be uninterrupted or error free.

7. Indemnification

   Customer agrees to indemnify, defend and hold harmless Provider from and against any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys' fees and expenses, arising out of or related to Customer's use of the Services.

8. Force Majeure

   Provider shall not be liable for any failure or delay in performance due to circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.

9. Governing Law

   This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without regard to its conflict of law provisions. This choice of law reflects the Company's domicile in Oregon, but does not limit the Company's ability to operate in other jurisdictions

10. Entire Agreement

    These Terms of Service constitute the default agreement governing the Kiapo Private Clouds program. However, they do not supersede any specific written agreements between the Provider and the Customer. In the event of any conflict between these Terms of Service and a separate written agreement signed by both parties, the terms of the separate agreement shall prevail. These Terms of Service supersede any prior versions of the default Terms of Service for the Kiapo Private Clouds program.

11. Infrastructure Additions and Deployment

    1. When additional resources are added to the Customer's on-premise infrastructure, the Provider will make best efforts to complete the deployment in a timely manner.
    2. The Customer acknowledges that technical issues, supply chain delays, or other factors beyond the Provider's control may extend deployment times for new infrastructure.
    3. Billing for new infrastructure additions:
       1. Hardware and software products will be billed to the Customer when the new hardware is ordered. Customer will be billed for non-recurring labor required for the installation, configuration, and integration of new infrastructure components, representing part of the total cost of acquisition.
       2. Once the new equipment is incorporated into the infrastructure, associated services are covered by the per-employee charge of the Kiapo Private Clouds program. No additional service charges will be incurred for the newly added capacity.
    4. In the event of significant delays:
       1. The Provider will communicate regularly with the Customer about the status of the deployment and any issues causing delays.
       2. If deployment is delayed by more than 30 days from the initially estimated completion date, the Customer may request a review of the project and associated charges.
    5. The Provider reserves the right to bill for additional labor or resources required to resolve unforeseen technical issues during deployment, subject to prior notification and agreement with the Customer.
    6. Billing for infrastructure additions will be clearly delineated in the Consolidated Bill provided to the Customer.

By using the Services, Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions.

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