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. Purpose of Agreement

This Agreement sets forth the terms and conditions by which Company will provide to Client, and Client shall accept and pay for, certain Services (as defined below). Each such Service will be specifically identified and described in a Service Order Form (“SOF”) executed and delivered by the Parties, which refer to this Agreement. Client may contract for additional Services from time to time, and in each such case, a new SLA or written change order will be executed, specifically identifying and describing such additional Services and referencing this Agreement.

2. Definitions

The capitalized words used herein this agreement will have the meanings ascribed to them in Schedule 1 attached hereto.

3. Services

By executing an SOF, Company agrees to provide, and Client agrees to accept and pay for, the Services described in each SOF during the Term. All Services shall be deemed delivered, and the Parties’ respective obligations under this Agreement and the SOF shall be deemed performed, at the Data Center(s) providing the Services.

3.1. Provision of Services
Company will provide Client with the Services set out on each SOF, subject to and in accordance with the terms of this MSA. Company agrees to use good faith efforts to implement the Services in accordance with the applicable SOF. Company reserves the right to physically access the Systems at any time in order to ensure the continuity of the Services. To prevent downtime caused by outdated components or malfunction of the Systems, Client consents to (a) Company upgrading, repairing, or otherwise replacing the Systems that are hosting Client Data from time to time with or without notice to Client, and (b) if necessary, Company migrating Client Data within the Systems from time to time with or without notice to Client.

3.2. Third Party Vendors and Products
Company may (at Company’s sole discretion) provide any of the Services (in whole or in part) through an Company Affiliate, a Third Party Vendor, or other subcontractor(s). The terms and conditions for the use of any such Third Party Products that are incorporated into the Services are passed through to Client via this MSA where permitted by the applicable Third Party Vendor. Client acknowledges that Third Party Products may, at any given time, be no longer be available or may be revoked at the discretion of Company or the Third Party Vendor. Any mention of Third Party Products by Company, its employees, or any Third Party entity related to Company is for information purposes only and does not constitute an endorsement or recommendation by Company.

3.3. Governing Policies
To ensure the stability of its Services, and to comply with laws, regulations, and Internet standards, Company relies upon its Acceptable Use Policy, its Privacy Notice, and any applicable End User Terms. Altogether these three documents will be referred to herein as the “Policies,” The Policies are incorporated into and made an integral part of this MSA by this reference. Client shall comply with the Policies and shall ensure that at all times the Services are used in compliance with the Policies, including by using contractual terms no less restrictive than the Policies in Client’s agreements with its End Users. The Policies may be amended by Company from time to time, and such amendments shall be effective upon posting the amended Policies to the applicable URL; provided, however, that Company shall not change the Policies arbitrarily. Company shall endeavor to provide Client with advance notice of any change to the Policies, provided, that the failure to provide such advance notice shall not affect the validity of such changes.

3.4. Service Modifications
To ensure the stability of its Services, and to comply with laws, regulations, and Internet standards, Company relies upon its Acceptable Use Policy, its Privacy Notice, and any applicable End User Terms. Altogether these three documents will be referred to herein as the “Policies,” The Policies are incorporated into and made an integral part of this MSA by this reference. Client shall comply with the Policies and shall ensure that at all times the Services are used in compliance with the Policies, including by using contractual terms no less restrictive than the Policies in Client’s agreements with its End Users. The Policies may be amended by Company from time to time, and such amendments shall be effective upon posting the amended Policies to the applicable URL; provided, however, that Company shall not change the Policies arbitrarily. Company shall endeavor to provide Client with advance notice of any change to the Policies, provided, that the failure to provide such advance notice shall not affect the validity of such changes.

4. Billing and Payment

4.1. Service Fees
Client shall pay Company the Service Fees set forth on each SOF and all additional fees chargeable hereunder for Services not specified in a SOF but rendered to Client by Company as requested by Client. Recurring Service Fees for each Service will begin to accrue on the earlier of (i) SOF Availability Date, or (ii) 30 calendar days following the applicable SOF Start Date. Setup Fees will begin to accrue on the applicable SOF Start Date. Some Service Fees are based on use of the Services and are calculated as set out on the SOF. Company bills in advance, except for Service Fees based on usage which are billed in arrears. Service Fees based on usage will vary accordingly depending on Client’s actual usage. If the SOF includes Services that are billed based on the time and materials used by Company (including any of its Affiliates or Third Party Vendors) such as Professional Services, then Client acknowledges and agrees that the Service Fees are subject to change from the amount quoted in the SOW depending on Company’s actual time and materials used, provided that Company will obtain Client’s prior approval for any additional billable time that exceeds the amount described in the SOF.

4.2. Taxes
Service Fees do not include taxes which may be applicable to Client. Client shall pay all federal, state, provincial or other goods and services taxes assessed upon or related to Client’s purchase of the Services (except for taxes based on Company’s net income), unless Client provides Company with a valid tax exemption certificate. An SOF may include fees for a service provided by or through a third party, and Company cannot guarantee that such fees will remain the same. If a third party increases its fees, Company may proportionately adjust its fees after giving Client notice 90 calendar days prior to such adjustment.

4.3. Late Payment
Client shall pay the Service Fees, taxes and expenses set forth on an invoice within twenty-one (21) days following the date of such invoice. If Client fails to pay an invoiced amount by such due date, Company may assess a late payment charge equal to the lesser of (i) 1.5% times the unpaid amount per month or (ii) the maximum amount permitted by law. Client shall pay all of Company’s reasonable expenses associated with any collection efforts, including reasonable attorneys’ fees and court costs.

4.4. Billing Dispute
Client may dispute an invoice, so long as such dispute is made in good faith and, prior to the date on which such invoice is due, Client: (i) pays all undisputed amounts and (ii) provides Company with written notice of and evidence supporting such dispute. Company and Client shall attempt in good faith to resolve such dispute within 30 calendar days of Company’s receipt of Client’s notice. Any disputed amount found to be properly owed to Company shall be paid within five (5) days following resolution of the dispute, together with the applicable late payment interest fee on such amount accrued from the original due date for such amount.

4.5. Payment Methods
Company accepts the following payment methods:

  • check or money order;
  • credit card (Visa, MasterCard, AMEX); or
  • bank wire or Automated Clearing House (“ACH”).

Unless stated otherwise in the SOF or SOW, all Service Fees are in United States Dollars.

5. Term and Termination

This MSA shall bind Company and Client as of the Effective Date and shall continue as long as there is an SOF in effect. An SOF shall bind Company and Client as of its SOF Start Date and shall continue for the SOF Initial Term. At the end of such SOF Initial Term, the SOF shall automatically renew for successive Renewal Terms, unless either Party provides the other Party with written notice of non-renewal at least 90 calendar days prior to the expiration of the current term of such SOF. Each SOF may have its own SOF Initial Term or Renewal Term and the expiration or termination of any particular SOF will not affect the SOF Initial Term or Renewal Term of any other SOF currently in effect.

5.1. Termination for Convenience
Unless otherwise stated in the SOF, Client may terminate an SOF in whole or in part for convenience at any time by providing Company with 90 calendar days’ prior written notice subject to the applicable Termination Fee. Termination of all SOFs will be deemed a termination of the MSA subject to the survival clauses specified therein and below.

5.2. Termination for Cause
Either Party may terminate this MSA and/or the SOF upon written notice to the other Party, in the event that:

  • Such other Party breaches a material obligation of the SOF or this MSA and (i) such breach is not cured within 10 calendar days (or 10 business days in the case of non-payment by Client) following the breaching Party’s receipt of written notice from the non-breaching Party, in which case such termination shall be effective as of the end of such 10 calendar day period (or 10 business day period in the case of non-payment by Client) or (ii) such breach is incurable, in which case such termination shall be effective upon the breaching Party’s receipt of written notice from the non-breaching Party. Client acknowledges and agrees that this provision shall not apply to Company’s delivery of the Services and that Company’s sole liability and Client’s sole remedy for any malfunctions of or defects in, or any other performance or outage issues associated with, a particular Service shall be the applicable SLA set forth in the Addendum or Addenda for that Service;
  • Such other Party becomes the subject of any insolvency, receivership, or bankruptcy proceeding or makes an assignment for the benefit of creditors or ceases to do business; or
  • An event of Force Majeure has made the Services unavailable for 30 continuous days.

5.3. Termination Fee
In the event that Company terminates pursuant to Sections 5.2(a) or (b), or Client terminates pursuant to Section 5.2, Client shall pay the Termination Fee to Company within five (5) days of the termination date. Client acknowledges and agrees that (i) Company uses the contractual commitments of its customers, including Client, to make its own commitments to capacity and growth, including making significant capital expenditures, (ii) the amount of the Termination Fee is a reasonable approximation of the damages that Company will suffer due to Client’s early termination, and (iii) this provision is a material inducement to Company entering into this MSA.

5.4. Post-Termination Data Center Access
Subject to the remainder of this paragraph, Client acknowledges that all Services will immediately cease upon termination of the MSA or the applicable SOF. It is Client’s sole responsibility, and not the responsibility of Company, to ensure that all Client Equipment is removed from the Data Center prior to the termination date. Provided that Client was in good standing as of the termination date, Company may, but is not obligated to, grant Client a 60-day post-termination access for Client to remove Client Equipment. Client’s ordinary Service Fees will continue to apply during such post-termination access period until Client notifies Company that Client Equipment has been completely removed or the expiration of the 60 days, whichever is earlier. If any Client Equipment remains in the Data Center beyond such post-termination access period, then Company may, at its sole reasonable discretion, (a) remove such Client Equipment, or (b) retain the Client Equipment and charge Client the fees associated therewith, in which case Company may remove Client Equipment at any time if Client fails to timely pay such fees. Client acknowledges that this post-termination access entails the actions of Client and does not entail any action on Company’s part other than to provide access to the Data Center. Upon Client’s written request, Company may provide reasonable migration assistance, in which case, Company may charge (and Client will pay in advance) the Service Fees Company ordinarily charges for migration Service of the magnitude and complexity that Client requires.

5.5. Suspension
In addition to any other rights or remedies available to Company in this MSA, at law, in equity, by statute or otherwise, Company may suspend the Services at any time upon written notice to Client in the event and for the period of time that: (i) providing the Services is prohibited by applicable law or regulation; (ii) Client fails to pay any invoiced amount (except for an amount disputed in good faith in accordance with Section 4.4) when due; or (iii) the Services are used in violation of the Policies or applicable law or regulation. In the event that Company suspends the Services pursuant to clause (ii) or (iii) in this paragraph, Client shall pay all amounts for the Services during the period of suspension as if no suspension had occurred.

6. Representations and Warranties

Client and Company represent and warrant to each other that such Party has the power, authority, and legal right to enter into and to perform such Party’s obligations under this MSA. Client represents and warrants that Client and its End Users, as applicable, own or have the right to use all data and Intellectual Property transmitted by or used in connection with the Services.

7. Disclaimer

NOTWITHSTANDING ANY COMMUNICATIONS BETWEEN COMPANY AND CUSTOMER, EXCEPT AS EXPRESSLY STATED IN THIS MSA, NEITHER COMPANY NOR ANY OF ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, SUB-CONTRACTORS, OR LICENSORS MAKE ANY WARRANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, COMPLETELY SECURE, ERROR-FREE, NON-INTERRUPTION, NON-INTERFERENCE, OR NON-INFRINGEMENT. EXCEPT AS EXPRESSLY STATED IN THIS MSA, THE SERVICES AND SYSTEMS PROVIDED UNDER OR ASSOCIATED WITH THIS MSA, INCLUDING THIRD PARTY PRODUCTS OR EQUIPMENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER’S USE OF THE SERVICES SHALL BE AT ITS OWN RISK. EACH OF THESE DISCLAIMERS SHALL APPLY UNLESS PROHIBITED BY APPLICABLE LAW.

8. Indemnification

8.1. Mutual Obligation
Subject to the disclaimers herein, if a Party or any Representative of such Party (collectively “Protected Party”) incurs any Losses because of any Claim arising out of or in connection with the acts or omissions of the other Party or its employee, contractor, or agent (collectively “Indemnifying Party”) which amount to (a) personal injury or death, or theft of tangible personal property caused by the Indemnifying Party, (b) gross negligence or willful misconduct, or (c) alleged or actual violations by the Indemnifying Party of any law, regulation or rule, then the Indemnifying Party will indemnify, reimburse, and compensate the Protected Party for all Losses, as they accrue and become payable by the Protected Party, and defend, hold harmless, and protect the Protected Party from and against all Claims.

8.2. Company Obligation
We shall indemnify and hold you harmless from, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Services infringe any issued U.S. patent or registered copyright. This indemnification provision is expressly limited to aspects of the Service which are fully owned by us. It does not extend to products or services provided by third parties even if incorporated into the Service. If set out in our agreements with suppliers of third party services, we shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying us promptly in writing of the claim and giving us full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in our opinion is likely to occur, you agree to permit us, at our option and expense, either to: (i) procure for you the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate our obligations (and your rights) under this MSA with regard to such Service and refund to you the price originally paid by you to us for the Service, or the fee actually received by us from you for the 3-month period immediately preceding the occurrence of the event on which the indemnification claim is based. This shall be your only remedy, and our only obligation to you, should a third party allege that the Service infringes any issued U.S. patent or registered copyright.

8.3. Client Obligation
You agree to indemnify, defend and hold harmless us, our parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use, or your End Users’ use, of the Services; (ii) any violation by you, or your End Users, of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this MSA; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this MSA.

8.4. Indemnification Procedure
The indemnification obligations of this section shall be conditioned on the Protected Party (a) promptly notifying the Indemnifying Party in writing of the circumstances giving rise to such Loss such that there is no material prejudice to the Indemnifying Party due to the timing of the delivery of such notice and (b) giving the Indemnifying Party complete authority and information for the defense or settlement of the matter; provided, that (i) the Protected Party shall have the right to participate in the defense of the matter at such Party’s expense, and (ii) the Indemnifying Party shall not settle the matter without the Protected Party’s prior written consent if such settlement contains an admission of liability or fault attributable to the Protected Party or material equitable relief.

9. Limitation of Liability

9.1. Scope
EXCEPT WITH RESPECT TO A PARTY’S BREACH OF ITS OBLIGATIONS OF NONDISCLOSURE AND NON-USE OF PROPRIETARY CONFIDENTIAL INFORMATION OF THE OTHER PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF THE BASIS FOR A CLAIM, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT DAMAGES OF ANY NATURE (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF REVENUES, PROFITS, DATA, OR BUSINESS INFORMATION) THAT ARISE OUT OF OR IN CONNECTION WITH THIS MSA, ANY AGREEMENT BINDING ON OR ENFORCEABLE BY EITHER PARTY RELATED TO THE SERVICES, OR THE PROVISION OF THE SERVICES. THIS LIMITATION SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE. CUSTOMER AGREES THAT FOR THE PURPOSES OF THIS SECTION, LOST REVENUES AND LOST PROFITS DO NOT INCLUDE CUSTOMER’S PAYMENT OBLIGATIONS TO COMPANY PURSUANT TO THIS MSA.

9.2. Amount
To the extent permitted by applicable law and except for (i) the Parties’ respective indemnification obligations with respect to gross negligence and willful misconduct, (ii) Client’s payment obligations with respect to Service Fees and related taxes and expenses, and (iii) the Parties’ respective obligations of nondisclosure and non-use of the other Party’s proprietary Confidential Information, each Party’s liability arising out of this MSA, any agreement binding on or enforceable by either Party related to the Services, and the provision of the Services will be limited to direct damages and will not exceed the monetary amount equal to 6 times the average monthly payment of Service Fees during the 6 calendar months immediately prior to the event giving rise to the liability.

10. 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 the Policies, or as required by applicable law, court order, or regulation. In the event that 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.

11. Intellectual Property

In order to permit Company to provide the Services, Client shall obtain and maintain all rights, consents, and approvals required to grant Company and its agents the right to access, use, and modify any data, content, equipment, and Intellectual Property utilized by Client and its End Users in connection with the Services. Unless expressly stated in this MSA, neither Party shall (a) have any right, title, claims, or interest in or to the other party’s Intellectual Property, (b) use, copy, modify, or translate any of the other Party’s Intellectual Property or related documentation, (c) decompile, disassemble, or reverse engineer any of the other Party’s Intellectual Property, (d) distribute or authorize a third party to distribute any of the other Party’s Intellectual Property, or (e) remove, alter, or obscure any trademark, service mark, logo or other proprietary notices incorporated in or accompanying the Services. To the extent that any Third Party Products are included or incorporated in the Services, Client agrees that it shall only use such Third Party Products in conjunction with the Services. All trademarks and other Intellectual Property rights associated with or attached to a Third Party Product belongs solely to the relevant Third Party Vendor and are subject to license from such Third Party Vendor to be incorporated into the Services. Nothing herein grants to Client any right, title, or interest in or to a Third Party Vendor’s Intellectual Property. Company retains all rights that are not expressly granted in this MSA to Client. Client may choose to, but is not required to, provide comments or suggestions or related data to Company regarding possible improvements to the operation, functionality, or use of the Services, and inventions, product improvements, modifications, or developments made by Company, if any, shall be the exclusive property of Company.

12. Compliance with Laws

Each Party shall obtain and maintain all permits and licenses required by applicable law or regulations for the provision or use, as applicable, of the Services. Each Party shall comply with all applicable law and regulations in connection with this MSA and, in the case of Client, in its and its End Users’ use of the Services, including all applicable export control, data protection, Intellectual Property, consumer protection laws and regulations, and is generally not considered materially objectionable in the Internet community. Client shall be responsible for all acts and omissions of its End Users. Client agrees that: (i) violating applicable export control laws may include selling products or services that may be legal to sell in the United States, but illegal to export, and (ii) neither Client nor its End Users may use the Services to provide services to individuals or entities with which citizens of the United States may not do business. Client represents and warrants to Company that it has provided, and at all times during the term of this MSA will provide, Company with written notice of all data security and privacy laws, regulations and other legal requirements (including industry-specific laws, regulations, and requirements) applicable to Client’s or its End Users’ data or information (including personally identifiable information) that may be processed (as defined in the applicable data security or privacy laws, regulations or legal requirements) by Company or its employees, affiliates, agents or subcontractors in connection with the provision of the Services. So long as Client is in compliance with the foregoing, if, during the term of the MSA, Client notifies Company of the effectiveness of any change in law determined to be binding upon Client that results in Company’s provision of the Services or Client’s use of the Services being in violation of the applicable law or regulation, Company shall be permitted to suspend the affected Services, and the Parties agree to negotiate in good faith to modify the Services in a manner designed to permit the Services to be provided by Company and used by Client to comply with the applicable law or regulation (after giving effect to the change in law). Client acknowledges that such modification to the Services may result in additional fees to Client. Client shall use reasonable security precautions in connection with its use of the Services, including encrypting any sensitive information (such as nonpublic personal information and protected health information) transmitted by or used in connection with the Services, and require its End Users to use reasonable security precautions. Client and its End Users are responsible for the security of customer credit card numbers and related information to which Client or its End Users may have access as a result of conducting electronic commerce transactions in connection with the Services.

13. Protected Health Information

If Client uses, transmits, or otherwise handles any information related to an individual’s past, present, or future physical or mental health condition, any treatment for that condition, and any payment for that treatment which information identifies the individual or could reasonably be used to identify the individual (such information referred to as “Protected Health Information” or “PHI”), then Client will: (a) inform Company in writing of Client’s intended use of the Services for PHI, (b) comply with all requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing rules and regulations, (c) comply with all requirements of the Health Information Technology for Economic and Clinical Health Act, codified at 42 U.S.C. §§17931-17953 (“HITECH”) and its implementing rules and regulations, and (d) execute, as between Client and Company, a Business Associate Agreement as mandated by HIPAA and HITECH (on Company’s standard form), whereby Client is the covered entity and Company is the business associate or whereby Client is the business associate and Company is the subcontractor if Client is the service provider of a covered entity (as the terms “covered entity”, “business associate”, and “subcontractor” are defined by HIPAA and HITECH). 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 Protected Health Information, or (ii) Client’s breach of HIPAA, HITECH, or any other relevant statute. Unless Company and Client have executed a Business Associate Agreement, Client hereby represents that Client will not submit Protected Health Information to Company.

14. EU 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 (“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 protected health information to Company.

15. 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.

16. Force Majeure

Except for failure to pay, neither Party shall be liable for or be considered in breach of this MSA due to any failure or delay in performing if such failure or delay is caused by a Force Majeure event. If Company is affected by a Force Majeure event, Company will (a) promptly give written notice to Client, and (b) make reasonable efforts to reduce to a minimum and mitigate the effect of the Force Majeure.

17. Miscellaneous

17.1. Relationship of Parties
No person or entity other than Client and Company and their respective successors and permitted assignees is or shall be entitled to bring any action to enforce any provision of this MSA against either or both of Client and Company or any related party. The Parties shall be considered independent contractors of one another, and neither Party shall have the authority to make any representations, claims, or warranties of any kind on behalf of the other Party or on behalf of the other Party’s affiliates, agents, subcontractors, licensors, or Third Party suppliers. Nothing in this MSA shall be construed as implying a joint venture, agency, employer-employee, or partnership relationship between the Parties.

17.2. Non-Solicitation
During the term of this MSA and for one (1) year following its termination or expiration, neither Party shall directly or indirectly solicit, offer employment to, employ, or retain as a consultant any employee, consultant, subcontractor, or other agent of the other Party who was associated with the performance of any Services under this MSA without the other Party’s prior written consent. Notwithstanding the foregoing, solicitation or hiring via job fairs and advertisements of general circulation shall not be considered violations of this clause.

17.3. Notices
All notices, requests, consents, and other communications (collectively, “Notices”) required or permitted under this MSA shall be in writing and shall be deemed to have been received on the earlier of (i) the date of actual receipt (including by facsimile or email), (ii) the first business day after being sent to the designated address by a nationally recognized overnight delivery service, or (iii) the third business day after being mailed to the designated address by first class mail. Notices shall be delivered to Company at the address, facsimile or email address stated in the header on page 1 of this MSA. Notice shall be delivered to Client (which may include delivery via Company’s ticketing system) at the address, facsimile, or email address provided by Client to Company as set forth below (if applicable) or in Company’s records. Either Party may change the address at which it is to receive Notices by giving Notice of its new address to the other Party.

17.4. Assignment
This MSA shall be binding upon and inure to the benefit of Client, Company, and their respective successors and permitted assigns. Neither Party may assign this MSA without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed; except that either Party may assign this MSA without the prior consent of the other Party (i) to an affiliate or (ii) in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets. The sale, assignment, or other transfer of the equity securities or other ownership interests of either Party shall not constitute an assignment of this MSA. Any attempt to assign this MSA without the other Party’s required consent shall be null and void. Notwithstanding the foregoing, Client agrees that Company may delegate performance of any of its obligations hereunder to its subsidiaries or to agents or subcontractors selected by Company, except that Company shall not be relieved of any of such obligations as a result of such delegation.

17.5. Amendment; Waiver; Severability
Except as otherwise expressly provided in this MSA, this MSA shall not be amended and the Services shall not be changed except by a written amendment signed by both Parties. The failure or delay to exercise, or the partial exercise of, any right or remedy shall not operate as a waiver of, nor affect the right to exercise, any such right or remedy, nor shall a waiver of any breach or default constitute a waiver of any subsequent breach or default. The waiver of time for performance shall not constitute a waiver of the act or condition itself. The invalidity or unenforceability of any provision of this MSA shall not affect the validity or enforceability of any other provision of this MSA, which shall remain in full force and effect. Any such invalid or unenforceable provision shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision.

17.6. Governing Law; Interpretation
This MSA shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia, without regard to choice of law or conflicts of laws principles. The Parties consent to the jurisdiction of the federal or state courts located in Fairfax County, Fairfax, Virginia for all disputes between the Parties, and venue shall be proper in any such court. Neither Party shall contest notice from any such court. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY DISPUTE BETWEEN THE PARTIES. The United Nations Convention on Contracts for International Sale of Goods shall not apply to this MSA or any dispute between the Parties. No presumption or burden of proof shall arise favoring or disfavoring a Party by virtue of the authorship of any provision of this MSA. Client acknowledges and agrees that the pricing provided to Client is based largely on the Parties’ respective rights, obligations, and limitations provided in this MSA. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning will refer to this MSA in its entirety, which includes all SOFs and addenda, and not to any particular provision of the MSA. Bolding, underlining, or italicizing of words herein are for ease of reference only and the application or omission of them will have no effect on the interpretation of this MSA. When used for listing purposes, the term “including” and “includes” will be deemed to mean “including, but not limited to” or “includes, but is not limited to,” as applicable.

17.7. Entire Agreement
This MSA includes the Schedules, SOFs, SOWs, and Addenda attached hereto or executed hereunder, and states the entire agreement between the Parties, and supersedes all previous proposals, negotiations, and other written and oral communications between the Parties with respect to the subject matter of this MSA. Any additional terms, provisions, or conditions included in any purchase order, receipt, acceptance, confirmation or similar form or correspondence that Client may use in connection with the provision of the Services will have no effect on the rights, duties, or obligations of the Parties hereunder, regardless of the signature of the Parties thereto or any failure of Company to object to such additional terms, provision or conditions, unless such terms are included in a mutually executed amendment to this MSA.

17.9. Counterparts; Signatures; Legally Binding Agreement
This MSA, the SOFs and any Addenda may each be executed in any number of separate counterparts, and in each case, shall collectively and separately constitute one agreement. Signatures may be exchanged by facsimile or .PDF or other electronic means, and any signature exchanged by any such means shall be deemed an original. Client may also assent to this MSA, the SOFs and any Addenda by accepting any such document without modification in an on-line transaction via the Client Portal. Client understands and agrees that by clicking to agree to this MSA, any SOF and any Addendum, Client is entering into a legally binding agreement, with the same force and effect as a signature affixed by hand, and that it will not contest the validity or enforceability of those electronic transmissions or signatures under the statute of frauds or on any other basis. The person executing or clicking to agree to this MSA, any SOF and any Addendum on behalf of Client represents and warrants to Company that such person has the authority to enter into such document on behalf of Client.