This Master Services Agreement is the current version of the Master Services Agreement by and between the Company (as defined in the “Master Services Agreement Schedule 1 — Definitions” found here), and the individual or entity who is designated as the “Client” when clicking through to accept these terms online or when signing on the signature page attached hereto (“Client”). Company and Client may be referred to individually as a “Party” and collectively as the “Parties” in this Master Services Agreement. The complete agreement between Company and Client consists of (1) the terms below, (2) all service order forms (“SOFs”) and/or statements of work (“SOWs”) executed hereunder, and (3) all applicable addenda hereto (altogether, documents (1) through (3) will be collectively referred to as the “MSA”).
1. Definitions
Any capitalized words not otherwise defined in this Agreement will have the meanings ascribed to them in Schedule 1: Definitions attached hereto.
2. Services
Company will provide Client the services described herein (the “Services”) and set forth in each Company Service Order Form (“SOF”). Unless otherwise set forth in this Agreement or an SOF, Client is solely responsible for all costs and expenses to provide all equipment, hardware, and cabling required to use the Services. All Services shall be deemed delivered, and the Parties’ respective obligations under this Agreement and the SOF shall be deemed performed, at the Facility(s) providing the Services.
3. Term
3.1. Term
The term of this Agreement (“SOF Term”) shall commence on the Effective Date or, in the absence of signature of this Agreement, the last signature date on a corresponding SOF and shall expire at the date of termination or expiration of the last SOF. The term of each SOF (“SOF Term”) commences on the Service Start Date and continues for the stated term. Except as otherwise provided in a SOF, a SOF Term shall automatically renew upon the expiration of the then current SOF Term for additional periods of one year.
3.2. Cancellation of Auto-Renewal
Except as otherwise provided in a SOF, either Party may cancel automatic renewal of an SOF Term by providing the other party at least 30 days’ notice prior to the expiration of the then current SOF Term. Client’s notice of cancellation described in the preceding sentence does not terminate Services, but instead converts the SOF upon the expiration of the existing SOF Term to a month-to-month term with an increase of 50% of the Fees. To be effective, Client must submit the cancellation request in writing to accounting or to Billing at the address specified herein for notice. Company’s notice of cancellation will terminate the Services effective upon the expiration of the then current SOF Term.
4. Payment Terms
4.1. Service Start Date
Service Fees will accrue from the date designated in the SOF as the SOF Availability Date or if no date is designated in the SOF, then the date on which the Service is first delivered. All Services are deemed accepted upon delivery.
4.2. Fees and Adjustments
Company invoices Service Fees monthly in advance except for usage based services which are invoiced monthly in arrears. During the term specified in the SOF and any automatic renewal Term, Services are subject to an annual rate increase equal to 3% of the annual contract value.
4.3. Payments of Service Fees
Except for Service Fees then being disputed in good faith pursuant to Section “Disputed Service Fees” and as to which Client has notified Company that Client is disputing, Client shall pay all fees, charges, taxes, duties, surcharges, expenses, disconnect and third-party service charges invoiced by Company (collectively, “Service Fees”) in U.S. dollars to the designated address within 30 days following the invoice date. Client will be liable for Service Fees for the full term specified in each SOF.
4.4. Disputed Service Fees
In case of a billing dispute, Client shall provide a summary of the dispute in writing together with supporting documentation to accounting or to Billing at the address specified herein for notice and withhold paying the disputed amount. Company will investigate the claim and make a determination resolving the dispute. If an invoice exceeds the monthly recurring charges (“MRC”) of the Services ordered, Client may withhold the disputed portion that exceeds the MRC. Client must submit a dispute within 60 days of the date of the invoice on which the disputed amount appears. Client waives all rights to dispute charges after this 60-day period.
4.5. Late Service Fees
Except as provided in Section “Disputed Service Fees”, Service Fees are due in full as and when stated, without rights of setoff. Undisputed Service Fees not received when due bear interest at the greater of (i) 1.5% per month or (ii) the maximum amount allowable by law, commencing upon the payment due date. If Client is late in paying any undisputed Service Fees, Company may, in its discretion: (i) require a deposit or other undertaking or security to ensure that Client satisfies its payment obligations, regardless of whether Client has cured the late payment and (ii) suspend Services (as provided below) and/or terminate this Agreement or any SOF(s) (all as provided herein). Client is liable for all costs of collection, including, without limitation, attorneys’ fees and costs.
4.6. Service Suspension
Company may suspend the provision of Services, deny access to the Facility and the removal of Client’s Equipment from the Facility, if Client fails to pay undisputed Service Fees owed under this Agreement within 60 days of the invoice or disputed amount determination date, whichever is later. Company will continue to charge Client for Services during any period of suspension.
4.7. Taxes and Pass-Through Charges
All amounts payable by Client to Company under an SOF exclude Taxes. Excluding taxes based on Company’s net income, Client is responsible for paying all taxes related to (i) provision of the Services, (ii) Client’s activities and operation, and (iii) taxes imposed by any governmental or other authority (“Taxes”), as well as, any rate increases for third party services and products including power, relating to Client’s receipt or use of the Services. Company will pass through Taxes and any such rate increases and Client shall indemnify Company for any losses or liabilities incurred by Company for any Taxes or rate increases paid by Company on behalf of Client.
5. Termination
5.1. Expiration
Except as provided in an SOF or herein, either Party may disconnect Services and terminate an SOF upon the expiration of the SOF Term by providing at least 60 days’ notice prior to the expiration of the SOF Term. To be effective, the cancelling Party must submit the cancellation request in writing to in the case of Company, accounting or to Billing at the address specified herein for notice, and in the case of Client, at the address provided herein for notice.
5.2. Termination for Cause
Either Party may terminate this Agreement or any SOF by giving written notice to the other Party if the other Party materially breaches this Agreement or such SOF, as applicable, and fails to cure the breach within 30 days following receipt of written notice from the non-breaching Party (excluding any breaches relating to the payment of Service Fees, which shall not require further notice as to due date). Either Party may terminate this Agreement for cause immediately if the other Party becomes unable to pay its debts as they become due, undergoes judicial management, commences the process of liquidation, becomes insolvent or makes an assignment for the benefit of creditors, or if a trustee or receiver is set up to administer a substantial portion of the other Party’s assets or business.
5.3. Termination Following Service Suspension
If Client’s Services are suspended for failure to timely pay any undisputed Service Fees, or for any other reason, and such suspension continues for more than 30 days after notice of such non-payment, Company may, without further notice and obligation to Client, terminate this Agreement and any SOFs.
5.4. Effect of Termination by Either Party
On or before termination of this Agreement or any SOF for any reason other than in Sections “Termination upon Expiration” or “Termination for Cause”, Client shall remove all of Client’s Equipment and shall immediately pay to Company (i) Service Fees for all Services provided through the date of termination and (ii) if termination is due to breach by the Client, 100% of the Service Fees Client would have had to pay through the end of the SOF Term for all terminated SOF(s). Client agrees to pay all amounts owing on or before the termination date. Rights and obligations which by their nature continue after the termination or expiration of this Agreement, including, but not limited to, those found herein, shall survive and continue after the termination or expiration of this Agreement, and shall bind the parties, their successors, heirs and assigns.
5.5. Abandoned Equipment
Unless Company otherwise agrees in writing, failure to remove Client’s Equipment within thirty (30) days from the termination of the applicable SOF will constitute abandonment of such Client Equipment under the laws of the jurisdiction where the abandoned property is located. At Client’s risk and expense, Company will be entitled to pursue all available legal remedies, including, without limitation: (i) immediately removing Client’s Equipment and storing it at an on-site or off-site location; (ii) shipping it to Client at Client’s cost; or (iii) upon thirty (30) days’ prior written notice to Client, liquidating it, and retaining the proceeds.
6. Confidentiality
6.1. Confidential Information
Each Party agrees: (a) to hold the Confidential Information of the other Party in strict confidence using the same standard of care that such party uses to protect its own confidential information, but no less than reasonable care, and (b) not to use or disclose the Confidential Information of the other Party to any third party, other than as necessary to provide the Services, as permitted by Company’s policies, or as required by applicable law, court order, or regulation. If a Party is required by applicable law, court order, or regulation to disclose the other Party’s Confidential Information, such Party shall, unless prohibited by law, provide the other Party a reasonable opportunity to obtain, at the other Party’s expense, a protective order. Company shall have the right and license to use residuals, where “residuals” means ideas or know-how in non-tangible form that may be retained in the unaided memories of representatives of Company.
6.2. Disclosure and Use
The Receiving Party agrees to use the Confidential Information of the Disclosing Party solely for purposes of performing its obligations and exercising its rights under this Agreement. Nothing herein shall preclude disclosure by the Receiving Party to that Party’s attorneys, accountants or other employees who have a bona fide need to know the Confidential Information in connection with the Receiving Party’s performance under this Agreement. The Receiving Party shall use at least the same degree of care the Receiving Party employs with respect to its own Confidential Information, but in no event take less than a reasonable standard of care to prevent unauthorized use and disclosure of the Confidential Information of the Disclosing Party.
6.3. Marketing
Neither Party grants the other Party the right to use its trademarks, service marks, trade names, copyrights, other intellectual property rights or other designations in any promotion, publication, or press release without the prior written consent of the other Party in each case. Furthermore, the Parties agree that neither Party may reference entering into this Agreement and Client’s status as a Client in its marketing materials, press releases and in sales presentations without the prior written consent of the other.
6.4. Separate Agreement
If the parties have executed a separate non-disclosure agreement with terms more restrictive than those herein, the more restrictive terms of that separate agreement shall control in the event of a conflict between that separate agreement and this Agreement.
7. WARRANTY AND LIMITATIONS ON LIABILITY
7.1. Warranty
The Parties represent, warrant and covenant that it will comply with all applicable laws and regulations in connection with this Agreement. Company represents, warrants, and covenants that it shall perform the Services in a professional manner as is customary in the industry. Client represents, warrants, and covenants that it will maintain throughout the SOF Term the legal right and authority (including regulatory consents) to operate, configure, install, maintain, and repair Client’s Equipment as contemplated by this Agreement.
7.2. Protected Health Information
Client represents, warrants, and covenants to Company that if Client is maintaining or transmitting “Protected Health Information” (“PHI”) or, if Client is a “Covered Entity”, in each case, as such term is defined by The Health Insurance Portability and Accountability Act of 1996 (as the same may be amended, “HIPAA”), then, to the extent that any such data is moving through an Company facility, Client will, at all times during the term of this MSA, ensure that such data is encrypted in both storage (at rest) and flight (in transit). Company specifically disclaims any obligation to provide data backup of PHI and/or disaster recovery services related to PHI. Data backup of PHI and disaster recovery related to PHI shall be the sole responsibility of Client. Client acknowledges and agrees that Client will not store PHI on equipment, if any, provided by Company.
7.3. GDPR Personal Data
If Client engages in the “processing” of any “personal data” (as such terms are defined in the EU General Data Protection Regulation 2016/679, as may be amended from time to time (“GDPR”)) from the European Union, then Client will: (a) inform Company in writing of Client’s intended use of the Services for processing personal data from the EU, (b) comply with all requirements of the GDPR and all implementing rules, associated policies, and directives, (c) execute, as between Client and Company, a data processing agreement in compliance with the GDPR (on Company’s standard form), whereby Client is the data controller and Company is the data processor or whereby Client is the data processor and Company is the sub-processor (or level 2 processor) if Client is the service provider of a data controller (as the terms “processor”, “controller”, and “sub-processor” are defined by the GDPR), (d) adhere to the GDPR, including the designation of Client’s data protection officer and execution by Client of data processing agreements with data controllers and Client’s own sub-processors, and (e) ensure that Client is fully transparent about the nature and purpose of its processing of personal data. In addition to Client’s indemnification obligations under this MSA, Client will further indemnify Company (including Company’s Representatives) from and against any Claims against Company or Losses incurred by Company that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding processing of personal data from the EU, or (ii) Client’s breach of the GDPR or other applicable law. Unless Company and Client have executed a data processing agreement, Client hereby represents that Client will not submit PHI to Company.
7.4. Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE SERVICES. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, EXPRESS, IMPLIED, AND STATUTORY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO PORTIONS OF THE ABOVE EXCLUSIONS MAY NOT APPLY, BUT ONLY TO THE EXTENT NECESSARY TO BRING THE EXCLUSION INTO COMPLIANCE. ALL SERVICES ARE PROVIDED OR PERFORMED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS SOLELY AT ITS OWN RISK.
7.5. Limitation on Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF OR CORRUPTION OF DATA), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. COMPANY SHALL NOT BE LIABLE, IN CONTRACT, TORT, OR ANY OTHER THEORY FOR: UNAUTHORIZED ACCESS, ALTERATION, THEFT, CORRUPTION OR DESTRUCTION OF OR TO CUSTOMER’S OR ITS CUSTOMERS’, END USERS’ OR OTHER PARTIES’ COMPUTER FILES, DATABASES, NETWORK, TRANSMISSION FACILITIES OR EQUIPMENT.
7.6. Cap on Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CLIENT TO COMPANY DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO CLIENT’S FIRST CLAIM. AS A FURTHER LIMITATION, A PARTY’S MAXIMUM LIABILITY FOR ANY CLAIMS RELATING TO SERVICES OFFERED OR PROVIDED BY COMPANY (I) FOR A NONRECURRING CHARGE ONLY; OR (II) AS REMOTE HANDS AND EYES SERVICES, SHALL NOT EXCEED THE AMOUNT OF THE SERVICE FEE FOR SUCH SERVICE PROVIDED ON THE OCCASION GIVING RISE TO THE CLAIM.
7.7. Sanctions
Client represents and warrants, that it is not, and is not a government or resident in a jurisdiction that is, the subject of economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (i) the U.S. government, including the Office of Foreign Asset Control within the U.S. Department of the Treasury or the U.S. Department of State, or (ii) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom. If such representation and warranty of Client is inaccurate when made or later becomes inaccurate due to a change in Client’s status, Client must immediately notify Company of such change, and if Client fails to do so, Company may terminate this Agreement immediately upon written notice.
8. Other Provisions
8.1. Amendment
Any amendment to this Agreement or an SOF will only be effective if mutually agreed in writing and executed by the authorized representatives of both Parties.
8.2. Assignment
Client may not assign this Agreement without Company’s written consent, which Company may grant or deny in its sole discretion. However, either Party may assign its rights, duties, and obligations hereunder, without approval of the other Party, to a party that succeeds to all or substantially all of its assets or business (whether by sale, merger, operation of law or otherwise), so long as the assignee agrees in writing to be bound by this Agreement. This Agreement shall inure to the benefit of and be binding on the Parties, and their heirs, successors and permitted assigns.
8.3. Construction
Each Party agrees that it has reviewed this Agreement, and neither Party shall be considered the sole drafter of this Agreement so as to give rise to any presumption or convention regarding construction of this Agreement. Section headings and captions are for convenience only and will not be used to construe this Agreement. If any conflict arises between this Agreement and an SOF, the terms of the SOF shall control. If any conflict arises between this Agreement and an SLA, the terms of the SLA shall control.
8.4. Entire Agreement
This Agreement and all SOF(s), which are incorporated by this reference, constitute the entire agreement between the Parties with respect to the subject matter hereof, and there are no oral or other agreements which modify or affect this Agreement. The Agreement supersedes and replaces all prior or contemporaneous discussions, negotiations, proposals, understandings and agreements, written or oral, made by or on behalf of Company or Client, as well as any industry custom, on the subject matter hereof.
8.5. Force Majeure
Except for Client’s obligation to pay amounts owed under this Agreement, neither Party will be liable for any loss, damage or delay resulting from any event beyond such Party’s reasonable control or other events of force majeure. Each Party will promptly notify the other upon becoming aware that such force majeure event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. If such event continues for more than 60 days, either Party may terminate this Agreement.
8.6. Governing Law
This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.
8.7. Insurance
Each Party agrees to keep in full force and effect during the Term of this Agreement (i) commercial general liability insurance with individual policy limits of not less than $1,000,000 per occurrence, and $2,000,000 in the aggregate; (ii) worker’s compensation insurance covering such Party’s employees in an amount not less than required by law; and (iii) all risk property insurance on a replacement cost basis. Client’s insurance shall be primary over Company’s. Client waives and shall require its insurers to waive any rights of subrogation on all policies referenced above.
8.8. Notices
All notices, consents, approvals or other communications required by this Agreement will only be effective if in writing and sent by (i) certified or registered mail, postage prepaid; (ii) overnight delivery requiring a signature upon receipt; (iii) delivery by hand; or (iv) electronic mail to the Parties at the respective addresses in this Agreement or as otherwise designated in writing by the Parties Notices are effective (a) three business days after deposit in the mail, (b) the next day if sent by commercial overnight courier, and (c) the same day if sent electronically.
8.9. No Waiver; Severability
The failure on the part of either Party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future. The provisions of this Agreement are severable. If any provision is determined invalid, illegal, or unenforceable, in whole or in part, then such provision shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision cannot be modified to be enforceable, the provision shall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.
8.10. No Third-Party Beneficiaries
No person or entity, other than the Parties, shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with, this Agreement.
8.11. Relocation
If it is necessary for Company’s efficient use of the Facility to relocate Client to another area in the Facility, the Parties agree to work together in good faith to facilitate such relocation. Client shall be provided not less than 60 days’ prior written notice; the reasonable out of pocket moving costs for any such relocation by Company shall be Company’s responsibility. Company will use commercially reasonable efforts to minimize and avoid any interruption in Services during a relocation.
9. Notice to California Clients
Client is advised that, as may be applicable to it under California Civil Code Section 1789.3, to initiate a complaint about the Service, Client may contact Company using the Client Portal, or as provided in the applicable Service Level Agreements. If Client is dissatisfied with the manner in which Company responds to a complaint regarding the Services, Client may contact Company at the address set out below Company’s signature or by telephone at 410-897-1050, and the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at 1-916-445-1254. The charges for the Services are set out in the applicable SOF.