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Master Software and Services Agreement

Effective December 11, 2025.  This Master Software and Services Agreement supersedes and replaces all prior versions. 

Master Software and Services Agreement 

This Master Software and Services Agreement (the “MSA”) is between Provider and the Client found on the applicable quotation, statement of work, proposal or order, (the “Order”) and, together with the Order, and relevant Subscription Terms and/or End User License Agreements (“EULA”s) forms the Agreement between the parties (the “Terms”). Client accepts these Terms by signing an Order, using the software or subscription services, or continuing to use the software or subscription services after being notified of a change to these Terms.  If there is a conflict between the Order, this Master Software and Services Agreement, any Subscription Terms, EULAs, or Exhibit, the Order will control. 

THE PARTIES AGREE AS FOLLOWS: 

LICENSE GRANT AND RESTRICTIONS 

License Grant 

As of the Effective Date set forth in the applicable Order (the “Start Date”) and subject to the terms of the Agreement, Provider grants to Client and its users, a non-exclusive, non-transferable, right to access Provider’s software and applications (the “Software”) and cloud-based hosted software (“Subscription Services”) for up to the number, type, and/or location of licenses purchased by Client in an Order. Client may access the Software and Subscription Services for Client’s own business use. The Software provided as part of the Subscription Services may also be subject to a separate EULA for that software application. Any applicable EULA shall be identified in the Order for that portion of the Subscription Services. 

Updates 

During the Term, Provider reserves the right to update Client’s Software or Subscription Services so that either remains current with the then-current version of Software or Subscription Services available to Provider’s customers generally at no cost. However, if any updates or modifications: 

Require additional features or functionality not covered under the existing Terms: such features or enhancements may be subject to additional charges as outlined in a new Order or amendment to the MSA. 

Result from Client-specific customization requests: costs will be incurred based on Provider’s prevailing rates for customization, as agreed in writing between the parties. 

Arise due to regulatory or legal requirements unique to the Client’s jurisdiction: Provider reserves the right to recover reasonable costs incurred in implementing such compliance measures, provided these costs are disclosed to Client in advance. 

Provider shall provide reasonable notice to the Client of any update or modification that may result in additional costs. These updates will not materially reduce the core functionality of the Software or Subscription Services provided under the Terms. 

These updates shall not materially reduce the core functionality of the Software or Subscription Services provided. Provider shall notify Client of any significant updates or modifications where required under applicable laws or when such changes may affect Client’s use of the Software or Subscription Services. 

For the purposes of this MSA, “GDPR” refers to the General Data Protection Regulation (EU Regulation 2016/679), as well as any implementing or related legislation in the European Union, the European Economic Area, or the United Kingdom, including the UK GDPR (as defined under the UK Data Protection Act 2018). Provider may implement updates or modifications to ensure compliance with GDPR and other applicable laws or regulations as they evolve, and such updates shall be considered part of the Software and/or Subscription Services. 

Users 

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Client is fully responsible for the actions and omissions of each of its employees, contractors, agents, or any third party authorized to act on Client’s behalf (collectively, “Users”). The Client acknowledges that any access to or use of the Software or Subscription Services by its Users constitutes access and use by Client. 

Client remains liable to Provider for any breach of the Terms caused by its Users, whether arising from negligence, misconduct, or intentional acts, including but not limited to gaining or attempting to gain unauthorized access to systems, networks, or services beyond the scope of the license; any use of the Software or Subscription Services in violation of applicable laws, regulations, or third-party rights; or the introduction of malicious code, interference with Provider’s systems, or other harmful activities. 

In the event of a breach as described in clause 3.2 above, the Client agrees to indemnify and hold harmless the Provider against all costs, losses, damages, and liabilities (including reasonable attorney’s fees) incurred as a result of a User’s acts or omissions, and to cooperate fully with Provider in investigating and resolving the breach, including providing timely access to relevant records, systems, or personnel.Provider reserves the right to suspend or terminate access to the Software or Subscription Services for any User in breach of this Agreement, without prejudice to any other remedies available under the Terms or applicable law. 

New Features 

During the Term, Provider may introduce new features, functionality, software, or user types, that are only available under a different pricing model or on a version of Software other than the version Client currently accesses (“New Features”).  In the event Client desires to purchase New Features Provider reserves the right, in its sole discretion, to update Client’s account, pricing model, or Software version to facilitate the provision of such New Features. 

Usage Restrictions 

Unless expressly agreed otherwise in the applicable Order, Client shall not gain or attempt to gain unauthorized access to any portion of the Software, or its related systems or networks, for use in a manner that would exceed the scope granted under the Agreement or facilitate any such unauthorized access for any third party.  If any unauthorized access occurs, Client shall promptly notify Provider of the incident and shall reasonably cooperate in resolving the issue.   

Client shall not reverse engineer, decompile, or disassemble any Software or otherwise attempt to discover the source code thereof or permit any third party to do so. Client shall not attempt to disable or circumvent any security measures in place. Client may not knowingly reproduce or copy the Software, in whole or in part. Client shall not modify, adapt, or create derivative works of the Software. Client shall not use the Software to store or transmit libelous or otherwise unlawful or tortious material or any material in violation of any third-party intellectual property or privacy rights. Client shall not knowingly interfere with or disrupt the integrity or performance of the Software or third-party data contained therein. 

Client shall not Store or transmit malicious code or interfere with the performance or security of the Software. 

Maintenance and Support 

For non-subscription Software, Client agrees to maintain a current subscription for annual maintenance and support.  Provider agrees, at a minimum, to: (a) maintain the Software and to support all updated, new, replacement, follow on, or next generation versions and releases, (b) provide all maintenance services necessary to keep the Software in good working order, (c) provide all maintenance services necessary to keep the Software in conformance with the warranties set forth herein, (d) provide, at no additional cost, all major and minor enhancements, versions, releases, updates, upgrades and other modifications to the Software, and (e) provide to Client remote technical support in connection with Client’s use and operation of Software. 

FEES FOR SERVICES | PAYMENT TERMS 

Service Fees 

Fees for Software and Subscription Services are set forth in the Order or Statement of Work (“Service Fees”). Unless otherwise indicated in writing, all Services will be performed on a time-and-materials basis at Provider’s then-current rates. 

Adjustments to Service Fees 

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Except as may be specified in an Order, Provider may adjust the Service Fees charged under this Agreement as follows 

Units.  If the number of units increases, the Fees will be adjusted accordingly.  Under no circumstances may any such adjustments result in a number of licenses units that is less than the numbers, types or quantities in the most recent Order.  

Surcharges. At any time after the parties sign an Order, Provider may adjust its rates and charges or impose additional rates and charges to recover amounts required or permitted by governmental or quasi-governmental authorities to collect from others or pay to others in support of statutory or regulatory funds or programs. You shall pay all Service Fees owed as they become due following any such adjustment. 

Maintenance and Support Fee Rate Increases. At any time after the parties sign an Order, Provider may elect to raise the maintenance and support fees that it charges, up to ten (10%) per year.   

Third-Party Services. Client understands and agrees that Provider uses third-party solutions and service providers to perform some, or all of the managed services offered to Client (“Third-Party Service Providers”). PROVIDER IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THIRD-PARTY SERVICE PROVIDERS.  CLIENT’S RIGHTS REGARDING CLAIMS AGAINST THIRD-PARTY SERVICE PROVIDERS SHALL BE GOVERNED BY SUCH SERVICE PROVIDER’S END USER LICENSE AGREEMENT OR TERMS AND CONDITIONS.  Provider’s current Third-Party Service providers and the governing terms and conditions related to those services are listed on the Schedule of Third-Party Services which may be updated by Provider, without further notice to Client, where allowed by applicable privacy law including the GDPR, and is incorporated by reference as if fully set forth in this Agreement.   

Off-Boarding. Client’s cancellation, termination, or transition of the License or Services (“Off-Boarding”) may trigger a billable project.  Any Off-Boarding projects will be subject to a separate Order, which will be billed at Provider’s then-prevailing rates. 

Client Delay. If Provider is unable to commence delivery of the Services on the date agreed in the Order (“Service Start Date”) because of any failure on Client’s part including but not limited to the failure to provide access to Client’s resources in a timely manner, Client nonetheless will begin to incur Service Fees, which Client shall pay in accordance with the Order. 

Reimbursable Expenses 

Client shall pay Provider’s reasonable out-of-pocket expenses, including incremental third-party service fees, travel expenses, lodging, meals, or other similar expenses, which may be incurred by Provider in performing Services. 

Payment Terms 

Client shall pay the full amount reflected on any Software or Subscription invoice by the due date indicated on the invoice. Client shall pay a late charge of one- and one-half percent (1.5%) per month or the maximum lawful rate, whichever is less, for all invoiced amounts not paid by the Payment Deadline.  If Client disputes in good faith all or any portion of the amount owed to Provider, or if Client otherwise requests any adjustment to an invoiced amount, Client must notify Provider in writing, prior to the Payment Deadline, of the nature and basis of the dispute and/or adjustment. If Provider is unable to resolve the dispute prior to the Payment Deadline, Client nevertheless shall pay the entire invoiced amount by the Payment Deadline. If Provider ultimately determines that such amount should not have been paid, Provider shall apply a credit equal to such amount against any Service Fees owed for the following month.Suspension of Service 

If Client fails to pay all amounts owed under this Agreement by the Payment Deadline, then upon at least ten (10) business days’ prior written notice, and in addition to any other remedies available to Provider, Provider may suspend Services and withhold Confidential Information (defined below) under this Agreement until full payment is made. Following any suspension of service under this provision, and after Client makes full payment to Provider, Provider may restore the Services after validating that all components to be monitored and/or managed under any applicable Order or service attachment comply with Provider’s level of security, updates and best practices. Provider may charge a “Reactivation Fee” for such restoration equal to one month of the Service Fees (“Reactivation Fee”). Provider’s right to suspend Services under this section is in addition to Provider’s right to terminate this Agreement. 

Taxes 

Unless otherwise indicated on an invoice, all charges and fees owed under this Agreement are exclusive of any applicable sales, use, excise, or services taxes that may be assessed on the provision of the Services. In the event that any taxes are assessed on the provision of any of the Services, Client shall pay the taxes directly to the taxing authority or shall reimburse Provider for their payment. 

Term And Termination 

TermThis Agreement commences on the Order Effective Date, and it will remain in effect until either party terminates it as permitted below. 

Client may terminate this MSA and/or any Order for any reason or no reason upon at least sixty (60) days’ advance written notice to the other party. 6Storage may terminate this MSA and/or any Order for any reason or no reason upon at least (10) days advance written notice to the other party. Termination of this MSA alone will not automatically terminate any active Orders, EULAs, or licenses. This MSA shall remain in effect until all active Orders and associated licenses or EULAs are terminated or have expired according to their terms. 

Ownership of Data on Termination 

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As between the parties, all data provided by Client, including but not limited to personal data, proprietary content, and materials uploaded to or generated within the Services (“Client Data”), remains the sole property of the Client. Upon termination of the MSA or any applicable Order, Provider will, at Client’s written request and expense either return all Client Data in a commonly used format; or delete all Client Data from its systems, except where retention is required by applicable law, regulation, or Provider’s legitimate business purposes (e.g., audit or dispute resolution). Provider shall certify such deletion in writing upon Client’s request. Any retention of Client Data will comply with applicable privacy laws, including GDPR, UK GDPR, and other relevant regulations. 

All software and Services provided by Provider under this MSA, including any Software or Subscription Services, is subject to the terms of the applicable End User License and Subscription Agreement (EULA). Upon termination of the MSA or any associated Order: 

Any licenses granted under the EULA shall terminate unless explicitly stated otherwise in the EULA or agreed in writing. 

The Client shall immediately cease use of any Software or Subscription Services and, if applicable, return or certify the destruction of all copies of the Software in its possession, unless otherwise permitted under a perpetual license agreement. 

Provider retains ownership of all intellectual property rights in the Software, Subscription Services, and related materials. 

For websites or custom solutions developed or sold under an Order: 

Upon full payment of all fees owed under the applicable Order, the Client will own the website content, design, and any custom code developed exclusively for the Client. 

Provider retains ownership of all pre-existing proprietary software, frameworks, and methodologies incorporated into the website or deliverables. The Client is granted a non-exclusive, perpetual license to use such proprietary elements solely for the operation of the purchased website. 

If the Client’s website is hosted by Provider, termination of hosting services will require Client to migrate the website to a new hosting provider at its own expense. Provider will reasonably cooperate with migration requests, subject to the payment of any applicable offboarding or support fees. 

Independent Contractor 

Unless otherwise agreed, Provider will perform all Services solely as an independent contractor and not as an employee, agent, or representative of Client.  

Intellectual Property Rights 

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Unless specifically identified in a separate statement of work or Order, any writing, design, development, or work of authorship, regardless of medium, created or developed by Provider for Client in the course of performance under this MSA and related to existing works owned by Provider shall be deemed a “Provider Work”. Provider Works are not to be considered “works made for hire” and will remain the sole and exclusive property of Provider. 

To the extent any Provider Work is for any reason determined not to be owned by Provider, Client hereby irrevocably assigns and conveys to Provider all copyright, patent, trade secret, know-how, and other proprietary or associated rights in such Provider Work. This assignment includes all rights to reproduce, distribute, display, perform, and create derivative works of the Provider Work, as well as any associated goodwill. 

If any Provider Work is embedded in or located on hardware, software, or systems owned or used by Client, Provider grants Client a non-exclusive, revocable, royalty-free license to use such Provider Work during the term of this Agreement solely for the purposes set forth in the applicable Order or Terms (“Limited License”). The Limited License shall be immediately and automatically revoked without the need for further notice in the event of: 

  • Termination or expiration of the Subscription, Services, or this Agreement; or 
  • A material breach of this Agreement by Client. 

Client shall not, and shall ensure its Users do not: 

  • Modify, copy, or create derivative works based on the Services, Provider Works, or any proprietary technology provided by Provider (“Provider Technology”); 
  • Build or develop a product or service using ideas, features, functions, or graphics that are substantially similar to those of the Services or Provider Technology; 
  • Copy or use any Provider Technology or Provider Works for purposes not expressly authorized by this Agreement or the applicable EULA. 

Additional license restrictions may be set forth in relevant Orders, EULAs, or Service Attachments. 

All proprietary tools, templates, software, frameworks, methodologies, and know-how used by Provider in delivering the Services, including but not limited to Software, Subscription Services, development frameworks, updates, and enhancements, shall remain the sole and exclusive property of Provider. 

Termination of this MSA or any associated Order does not affect Provider’s ownership of intellectual property or proprietary rights. 

Any perpetual licenses explicitly granted to Client under this Agreement or associated EULAs shall survive termination, provided that all applicable fees have been fully paid. 

Licenses granted as part of a Subscription Service or time-limited Order shall terminate upon the expiration or termination of the relevant Subscription Term or Order. 

Provider’s intellectual property rights, including those related to Provider Works, Provider Technology, and any proprietary methodologies or know-how, shall survive termination or expiration of this Agreement or any related Order. The Client shall immediately cease all unauthorized use of Provider Technology or Provider Works upon termination and, where applicable, return or certify the destruction of all such materials. 

Provider Works 

Unless specifically identified in a separate Statement of Work, any writing or work of authorship, regardless of medium, created or developed by Provider for Client in the course of performance under this Agreement and related to existing works owned by Provider is a “Provider Work,” is not to be deemed a “work made for hire,” and is and will remain the sole, exclusive property of Provider. To the extent any Provider Work for any reason is determined not to be owned by Provider, Client hereby irrevocably assigns and conveys to Provider all of its copyright in such Provider Work. Client further hereby irrevocably assigns to Provider all of its patent, copyright, trade secret, know-how, and other proprietary and associated rights in any Provider Work.License to Provider Works 

If any Provider Work is located on hardware or equipment owned by Client, Provider hereby grants Client a, non-exclusive, revocable, royalty-free license to use any Provider Work during the term of this Agreement (“Limited License”).  The Limited License will be immediately and automatically revoked without the need for notice in the event that either party terminates the Subscription, Services, or this Agreement.    

License Restrictions 

You shall not: 

  • Modify, copy, or create derivative works based on the Services or on the Provider Technology; 
  • Build a product or service using similar ideas, features, functions, or graphics of the Service, or 
  • Copy any ideas, features, functions, or graphics of the Service. 
  • Additional license restrictions may be set forth in the Service Attachments. 

Improvements to Services 

Client hereby assigns to Provider any and all suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or Client’s users relating to any proposed improvements of or modifications to the Services.Non-Disclosure and ConfidentialityConfidential Information 

During the course of performance under this Agreement, either party may be exposed to or may acquire the other’s proprietary or confidential information. Each party shall hold all such “Confidential Information” in strict confidence and shall not disclose any such information to any third party. Confidential Information includes but is not limited to: (a) with respect to Provider, Provider’s unpublished prices for Services, audit and security reports, server/network configuration designs, firewall and other hardware configurations, passwords, all business plans, technical information or data, product ideas, methodologies, calculation algorithms and analytical routines, and other proprietary technology, (b) with respect to Client, content transmitted to or from, or stored by Client on, Provider’ servers, and (c) with respect to both parties, other information that is conspicuously marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure. 

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Notwithstanding the preceding provision, Confidential Information does not include:  

  • Information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise; 
  • Information that either party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other; 
  • Information received from a third party with the right to transmit same without violation of any secrecy agreement with the other party; and 
  • Information that must be disclosed pursuant to court order or permitted by law. 

During the course of performance under this MSA, either party may be exposed to or may acquire the other’s Confidential Information, including but not limited to personal data or information (“Personal Data”), as defined by applicable privacy laws, including the GDPR and relevant United States privacy laws, such as the California Consumer Privacy Act (“CCPA”) and Virginia Consumer Data Protection Act (“VCDPA”). Each party agrees to: 

  • hold all such Confidential Information and Personal Data in strict confidence; 
    not disclose any such information or data to any third party except as expressly permitted herein or required by applicable law; and 
  • process any Personal Data only as necessary to perform its obligations under this MSA, in compliance with applicable data protection laws, and subject to the terms of a Data Processing Agreement (“DPA”) if required. 

No copy of the Order, this MSA, any End User License Agreement (“EULA”), discussions, negotiations, terms or conditions relating to the Order, the MSA, EULA, or any other information relating to the Order, this MSA, or any Service Attachment, including any Confidential Information or Personal Data, may be disclosed to any third party, except: 
 

  • as required by legal, accounting, or regulatory obligations, including responses to subpoenas, court orders, or governmental inquiries; 
  • to subcontractors, agents, or service providers engaged by a party, solely for the purpose of performing obligations under this MSA, provided that such third parties are bound by confidentiality obligations at least as restrictive as those set forth herein; or 
  • with the prior written consent of the disclosing party. 

The disclosing party must ensure that any disclosure made under (a) or (b) is limited to the minimum information necessary to achieve the purpose and complies with applicable privacy laws. 

Notwithstanding the preceding provisions, Provider may publicly refer to Client, orally and in writing, as a Client of Provider, provided that such reference does not include any Confidential Information or Personal Data. Any additional reference to Client, including the use of its trademarks, trade names, or logos, may only be made pursuant to a written agreement between the parties. 

PROVIDER-SUPPLIED SOFTWARE 

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“Software” means all and any software installed on the Equipment or provided by Provider for installation on Client’s computer equipment to facilitate the delivery of the Services. 

This Agreement does not transfer any right, title, or interest in the Software to Client. Client’s use of the Software is subject to all applicable terms of any end-user license agreement pertaining to the Software, a copy of which will be made available to Client, upon request. 

The Client shall not, and shall not permit any third party, to: 

  • distribute or allow others to distribute copies of the Software or any part thereof to any third party, 
  • tamper with, remove, reproduce, modify, or copy the Software or any part thereof, 
  • provide, rent, sell, lease, or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or 
  • reverse assemble, reverse compile or reverse engineer the Software or any part thereof or otherwise attempt to discover any Software source code or underlying proprietary information except as may be permitted by law. 

CLIENT COVENANTS AND OBLIGATIONS  

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Assistance.  

Client shall provide in a timely and professional manner, and at no cost to Provider, assistance, cooperation, complete and accurate information and data, equipment, access to applicable computer and telecommunications facilities, networks, firewalls, servers, programs, files, documentation, passwords, a suitable work environment, and other resources requested by Provider to enable it to perform the Services (collectively, “Assistance”).  

Provider shall not be liable for any deficiency in performing the Services if such deficiency results from Client’s failure to provide full Assistance as required hereunder. Assistance includes, but is not limited to, designating a project manager or contact person to interface with Provider during the course of Services. 

Software Licensing 

Unless specifically otherwise agreed to in an applicable Order, Client represents and warrants that Client has title to or has a license or the right to use or modify any third-party software and has a license or right to permit Provider to use, access, or modify any software that Client has requested Provider to use, access, or modify as part of the Services. 

It is the Client’s responsibility to independently ensure that ALL software in use by Client is properly licensed, and Client agrees to maintain records of applicable licenses. Provider will not promote the use of, or knowingly support software which is not properly licensed by Client. Assistance with software audits or licensing compliance matters are billable at Provider’s then-prevailing hourly rates. 

Unsupported Software 

Provider shall not be responsible or liable to Client for any consequences from the use of third-party software no longer under manufacturer product support or no longer supported by the software publisher (“Unsupported Software”). THEREFORE, CLIENT AGREES TO HOLD PROVIDER HARMLESS FROM ANY LOSS, INJURY, OR DAMAGE TO CLIENT OR ANY HARDWARE, SOFTWARE, AND/OR COMPUTER DATA OF CLIENT CAUSED BY ANY USE OF UNSUPPORTED SOFTWARE. 

Provider AccessClient shall supply Provider necessary access to its personnel, appropriate documentation and records, and facilities in order for Provider to timely perform the Services.  

Broadband Internet access must be provided. Provider must be provided with remote access (via VPN or other reasonable remote access) to covered equipment. Appropriate cabling to all covered computers and devices must be provided. Appropriate air conditioning and ventilation for all covered computers and devices must be provided, in order to maintain temperature and air quality as specified by the applicable hardware manufacturers. Power surge protection must be provided for all covered computers and devices. Provider must be allowed convenient and timely access to the Equipment covered under this Agreement, adequate working space and facilities within a reasonable distance of the equipment, and access to and use of all information, internal resources, and facilities determined necessary to service the equipment. Client may be required to conduct preliminary diagnostic steps or provide additional information related to a support request, prior to a technician being dispatched to Client’s facility. Client must agree to assign one employee to be liaison or contact person to Provider in order to make communications between both parties effective. 

Third-Party Service Provider FeesUnless expressly undertaken by Provider in writing, Client is responsible for any Third-Party Service Provider service fees, charges and to arrange for disconnection or termination and payment of charges related to the disconnection or termination of any related services with Client’s current carrier(s) or service provider(s).  

Network Security and Malicious EventsSubject to applicable privacy laws, including but not limited to the GDPR, California Consumer Privacy Act (“CCPA”), and any relevant Data Processing Agreement (“DPA”), unless otherwise specifically agreed in an applicable Order, Client bears sole responsibility for implementing and maintaining the security of its data, voice networks, and circuits to protect against unauthorized access. At a minimum: 

  • A hardware firewall must be deployed and actively maintained to safeguard Client’s network. 
     
  • All wireless data traffic within Client’s environment must be securely encrypted using industry-standard encryption protocols (e.g., WPA3 or equivalent). 

Subject to Clause 19.6.1 and applicable privacy laws, including but not limited to the General Data Protection Regulation (“GDPR”), California Consumer Privacy Act (“CCPA”), and any relevant Data Processing Agreement (“DPA”):Unless specifically otherwise agreed to in an applicable Order, it is Client’s sole responsibility to determine whatever actions deemed necessary to make Client’s data and voice networks and circuits secure from unauthorized access. Hardware firewall must be in place. Wireless data traffic in the environment must be securely encrypted. Provider is not responsible for the security of Client’s network and circuits from third parties, or for any damages that may result from any unauthorized access to Client’s network. 

Client has an affirmative obligation to protect Client’s network environment, and to train its employees for spam, malware, phishing, virus protection, and prevention from criminal acts of third parties. Provider is not responsible for criminal acts of third parties, including but not limited to hackers, phishers, crypto-locker, and any network environment subject to ransom.  

  1. Client has an affirmative obligation to implement and maintain appropriate security measures to protect its network environment, including but not limited to: 
  1. Deploying firewalls, encryption, and other technical safeguards; 
  1. Training employees to identify and mitigate risks from spam, malware, phishing, viruses, and other cyber threats; and 
  1. Preventing and responding to criminal acts by third parties, including hacking, phishing, ransomware, and other forms of cybercrime. 
  1. If security systems for Client’s network are included as part of the Services provided by Provider under this Agreement, Provider agrees to use commercially reasonable efforts to protect Client’s network from malicious attacks, including but not limited to computer viruses, worms, and hackers (collectively, “malicious activities”). However, Client acknowledges and agrees that no security system can guarantee complete protection against malicious activities, as such attacks often involve intentional and sophisticated efforts by third parties to infiltrate or harm computer systems. 
  1. Provider shall not be responsible for: 
  1. The security of Client’s network, circuits, or associated infrastructure, unless explicitly included within the scope of the Services under this Agreement; 
  1. Any damages, liabilities, or losses arising from unauthorized access, breaches, or malicious activities. 

CLIENT AGREES TO HOLD PROVIDER HARMLESS FROM ANY LOSS, INJURY, OR DAMAGE TO CLIENT, INCLUDING TO CLIENT’S HARDWARE, SOFTWARE, AND/OR COMPUTER DATA, CAUSED BY MALICIOUS ACTIVITIES, EXCEPT TO THE EXTENT SUCH LOSS, INJURY, OR DAMAGE ARISES FROM PROVIDER’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. 

Third-Party Criminal Activity 

Provider is not responsible for criminal acts of third parties, including but not limited to intrusions or unauthorized access of any kind, hackers, phishers, crypto-locker, and any network environment subject to ransom.  

CLIENT ACKNOWLEDGES AND AGREES THAT PROVIDER IS NOT RESPONSIBLE FOR THIRD-PARTY CRIMINAL ACTIVITY AFFECTING THE CLIENT’S ENVIRONMENT, NETWORK SECURITY, OR PRIVACY. The Client is solely responsible for deciding how to respond to such incidents, including decisions about remediation, data recovery, or engagement with law enforcement or third-party consultants. 

Provider will assist in restoring the Client’s environment in the event of a network security incident upon written request. Such assistance, including rebuilding or servicing machines, will be billed at Provider’s then-prevailing hourly rates. 

UNDER NO CIRCUMSTANCES SHALL PROVIDER BE REQUIRED OR EXPECTED TO PAY A RANSOM ON BEHALF OF THE CLIENT. 

Theft of Service 

Client shall notify Provider immediately, in writing, by electronic mail or by calling the Provider customer support line, if Client becomes aware at any time that the Services are being stolen or used fraudulently. Failure to do so in a timely manner may result in the immediate termination of the Services and additional charges billed to Client. Client will be liable for all use of the Service using Equipment stolen from Client and any and all stolen Service or fraudulent use of the Services. Credits will not be issued for charges resulting from fraud that arises out of third parties hacking into any Equipment. This includes, but is not limited to, modem hijacking, wireless hijacking, or other fraud arising out of a failure of Client’s internal/corporate procedures. Provider will not issue credit for invoiced charges for fraudulent use resulting from Client’s negligent or willful acts or those of an authorized user of Client’s service. THEREFORE, CLIENT AGREES TO HOLD PROVIDER HARMLESS FROM ANY LOSS, INJURY OR DAMAGE TO CLIENT BY SUCH THEFT OF SERVICE.Physical Security 

Client is responsible for the physical security of its on-premises hardware and software systems. 

Independent Backup 

Unless specifically otherwise agreed to in an applicable Order or Service Attachment, Client must maintain an independent backup of all files that are sent to either the cloud or a data backup service. A backup solution must be in place, with backup copies stored off-site. It is the Client’s responsibility to verify that backups are made regularly, as well as the integrity of the backups.  Provider shall not be held liable in the event of data loss, backup software failure, backup selection, backup hardware failure, backup media failure, or backup system failure even in the event that Provider was tasked to perform the backups. Client will be solely responsible for all lost data. 

Malware 

An anti-malware solution must be in place and updated with valid update subscription. Provider is not responsible for any harm that may be caused by Client’s access to third-party application programming interfaces or the execution or transmission of malicious code or similar occurrences, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, Trojan horses, worms, viruses, and similar mechanisms. Any costs or fees to rebuild or service machines are provided and sold separately by Provider. 

Hardware and Software Configurations 

All Hardware and Software Configurations implemented by Provider shall belong to Provider and shall constitute Provider’s Confidential Information. 

Client Data Security & Privacy 

In addition to its other confidentiality obligations under an applicable Service Attachment, Provider shall not use, edit, or disclose to any party other than Client any Client Data, except as otherwise requested by Client, or required by court order or applicable law. For purposes of this provision, all data stored on the virtualized machines assigned to Client, including locally stored personal data of individual employees, will be considered Client Data by Provider.  

As between Provider and Client, all Client Data is owned exclusively by Client. Client Data constitutes Confidential Information subject to the Terms. Provider may access Client’s User accounts, including Client Data, solely to respond to service or technical problems or otherwise at Client’s request.  

Security and Regulatory Recommendations 

Although it is under no obligation to do so, from time to time, Provider may make recommendations regarding regulatory compliance, safety, and security related to Client’s network and practices (e.g., multi-factored authentication). If Client fails to adopt or implement the recommended protocols, Client is responsible for any and all damages related to regulatory, security, privacy, or data protection, including but not limited to fines, data breach notification, malware or ransomware costs, restoration, forensic investigation, restoring backups, or any other costs or damages related to Client’s refusal to implement the recommended protocols.    

Enhancement Requests 

Client will submit any requested enhancements through approved methods.  Client understands and acknowledges that Provider does not guarantee that it will take any action with respect to enhancements. 

PROVIDER REPRESENTATIONS AND WARRANTYInternal Network Security Compromise Policy 

Provider monitors the availability and performance of its internal firewall and network security. This process involves monitoring for intrusion attempts and potential security breaches. In order to minimize a possible compromise of security, all services and applications exposed to the Internet on Provider’s servers are updated with all commonly available security hotfixes and best practices. As appropriate, Provider proactively evaluates, investigates, and reports security-related incidents to the appropriate authorities. Provider also monitors and proactively manages the anti-virus protection of its servers and applications using industry-recognized anti-virus software systems. 

Service WarrantyWe warrant that the Subscription Services will be performed in a professional and workmanlike manner and the Software will perform as described in the user manual.  All Services will be deemed to be accepted unless Client notifies Provider in writing within ten (10) working days after performance that the Services did not conform to this warranty.  Provider promptly will correct any non-conformities and will notify Client in writing that the non-conformities have been corrected.WARRANTY AND DISCLAIMER OF WARRANTYPROVIDER WARRANTS THAT THE SOFTWARE WILL OPERATE IN CONFORMITY WITH ITS THEN-CURRENT STANDARD DOCUMENTATION (EXCEPT FOR MINOR DEFECTS OR ERRORS THAT DO NOT MATERIALLY AFFECT THE CORE FUNCTIONALITY OF THE SOFTWARE UNDER NORMAL USE AND CIRCUMSTANCES) FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF INITIAL DELIVERY OF THE SOFTWARE (“WARRANTY PERIOD”). 

IF, DURING THE WARRANTY PERIOD, THE SOFTWARE FAILS TO OPERATE IN ACCORDANCE WITH THIS WARRANTY, THE CLIENT MUST NOTIFY PROVIDER IN WRITING WITHIN THE WARRANTY PERIOD, DETAILING THE NONCONFORMITY. UPON VERIFICATION OF THE NONCONFORMITY BY PROVIDER, PROVIDER WILL USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT THE NONCONFORMITY SO THAT THE SOFTWARE PERFORMS IN ACCORDANCE WITH THE DOCUMENTATION. 

IF PROVIDER CANNOT REASONABLY CORRECT THE NONCONFORMITY, THE CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND PROVIDER’S SOLE OBLIGATION, WILL BE: 
(A) FOR A PERPETUAL LICENSE, A REFUND OF THE FEES PAID FOR THE SOFTWARE LICENSE; OR 
(B) FOR A SUBSCRIPTION LICENSE, A REFUND OF THE FEES PAID FOR THE UNUSED PORTION OF THE SUBSCRIPTION TERM. 

THE CLIENT AGREES TO PROVIDE ALL INFORMATION AND ASSISTANCE REASONABLY REQUESTED BY PROVIDER TO IDENTIFY AND RESOLVE THE NONCONFORMITY. 

THIS WARRANTY DOES NOT APPLY TO DEFECTS RESULTING FROM: 

  • ACCIDENT, ABUSE, OR MISUSE OF THE SOFTWARE; 
  • UNAUTHORIZED REPAIR OR MODIFICATIONS; 
  • MISAPPLICATION OR USE OF THE SOFTWARE IN A MANNER MATERIALLY INCONSISTENT WITH THE DOCUMENTATION; OR 
  • CIRCUMSTANCES BEYOND THE CONTROL OF PROVIDER, INCLUDING BUT NOT LIMITED TO, ACTS OF GOD, THIRD-PARTY INTEGRATION ISSUES, OR SYSTEM FAILURES NOT ATTRIBUTABLE TO THE SOFTWARE ITSELF. 

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SOFTWARE IS PROVIDED “AS IS,” AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. 

DISCLAIMER OF WARRANTY 

COMPLIANCE WITH LAWSFor the avoidance of doubt, unless otherwise expressly stated in an Order or required by applicable law, Provider is responsible for complying with laws directly applicable to the Provider’s operations, services, and the processing of personal data on behalf of the Client in accordance with the terms of this Agreement (including but not limited to the GDPR, CCPA, and other relevant data protection laws). 

The Client acknowledges that the Provider’s obligations under applicable data protection laws extend only to the processing activities undertaken by Provider as a data processor or service provider, and not to the Client’s independent legal obligations. The Client shall comply with all laws applicable to its own operations, industry, and processing activities, including but not limited to laws governing the Client’s collection, transfer, or use of personal data provided to Provider for processing. 

Although Provider is under no obligation to do so, Provider may, from time to time, provide recommendations or guidance regarding legal requirements and regulatory compliance protocols related to the Client’s network, practices, or use of Provider’s services. Any such recommendations are provided for informational purposes only and do not constitute legal advice. The Client is solely responsible for assessing, adopting, and implementing any legal requirements or regulatory compliance protocols applicable to its operations, industry, or jurisdiction, including those relating to data protection laws such as the GDPR, CCPA”, or similar laws. If the Client fails to adopt or implement Provider’s recommendations, the Client assumes full responsibility for any resulting damages, liabilities, or non-compliance issues. If the Client chooses to implement Provider’s recommendations, the Client acknowledges and agrees that Provider makes no representations or warranties regarding the sufficiency, accuracy, or completeness of such recommendations and disclaims any responsibility for the Client’s legal or regulatory compliance. 

Both parties agree to cooperate in good faith to address legal or regulatory compliance issues related to Provider’s services, including the execution of any required agreements (e.g., Data Processing Agreements (“DPAs”) or Standard Contractual Clauses (“SCCs”)) to ensure compliance with applicable laws. 

NO HIRINGNeither party shall, directly or indirectly, solicit, hire, employ, or engage any employee or contractor of the other party during the Term of this Agreement and for a period of twelve (12) months following the termination of this Agreement, without the prior written consent of the other party. 

Each party acknowledges that injury resulting from any breach of this provision would be significant and irreparable and that it would be extremely difficult to ascertain the actual amount of damages resulting from such breach. Therefore, in the event of a violation of this provision, in addition to any other right the non-hiring party may have at law or in equity, the hiring party shall make a one-time payment to the non-hiring party in the amount of one hundred percent (100%) of the affected employee’s or contractor’s payments from the non-hiring party for the previous one year, which accurately reflects the reasonable value of the employee’s time and costs. The parties agree that such amount is not intended as a penalty and is reasonably calculated based upon the projected costs the injured party would incur to identify, recruit, hire, and train suitable replacements for such personnel. 

DISPUTE RESOLUTIONArbitration ProceduresEach party shall attempt to settle amicably by mutual discussions any disputes, differences, or claims related to this Agreement within sixty (60) days of the date any such dispute arises. Failing such amicable settlement, any such dispute, including claim related to the existence, validity, interpretation, performance, termination, or breach of this Agreement, is to be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English and will have one (1) arbitrator. The Arbitrator will not have the authority to award punitive damages to either party. Each party will bear its own expenses but shall share equally the expenses of the Arbitration Tribunal and the AAA. Any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in St. Louis County, Missouri, or at another location upon which the parties may agree. Notwithstanding the foregoing, Provider may make claims for injunctive relief and for Client’s failure to pay for Services in a state or federal court in the United States with jurisdiction over the subject matter and parties. 

Period for Bringing ClaimNo claims may be made more than six (6) months after the date by which the fault or failure should reasonably have been discovered; failure to make such a claim within the six (6) month period shall forever bar the claim. 

Continued ServiceUnless Provider is bringing an action for Client’s failure to make payments for Services not otherwise in dispute, Provider will continue to provide Services under this Agreement, and Client shall continue to make payments to us, in accordance with this Agreement, during the period in which the parties seek resolution of the dispute.Attorneys’ FeesIn the event that there is any dispute, difference, or claim related to this Agreement that is resolved either through arbitration or through litigation, the prevailing party will be entitled to an award of reasonable attorneys’ fees incurred while defending or prosecuting such dispute, difference, or claim.INDEMNIFICATION 

By Client 

Client shall defend, indemnify, and hold Provider harmless against all costs and expenses, including reasonable attorney’s fees, associated with the defense or settlement of any claim that:  

  • Provider’s use, access, or modifications of any software that Client has requested that Provider use, access, or modify as part of the Services infringes any patent, copyright, trademark, trade secret, or other intellectual property right; 
  • Any claim based on use, disclosure, loss, breach, or other action involving Client Data; 
  • Any third-party claim based on Client’s use of the Software or Subscription Services; or 
  • Any claim related to any federal, state, or international law or regulation involving data privacy, data protection, or data breach to which Client is subject. 

Client shall pay any judgments or settlements based on any such claims. 

By Provider 

Subject to the limitation of liability set forth in the section titled LIMITATION OF LIABILITY, Provider agrees to indemnify and hold Client harmless from and against all loss, liability, and expense including reasonable attorney’s fees caused by Provider’s:  

  • gross negligence and willful misconduct; or  
  • any third-party claim that the Software or Subscription Services violate a patent, copyright, or trademark.   

LIMITATION OF LIABILITYEXCEPT FOR CLAIMS ARISING OUT OF PROVIDER’S INDEMNIFICATION OBLIGATIONS, PROVIDER’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CLIENT AND WILL NOT EXCEED THE AMOUNTS PAID BY CLIENT TO PROVIDER FOR THE USE OF THE SOFTWARE OR SUBSCRIPTION SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF ANY SUCH CLAIM.IN NO EVENT IS EITHER PARTY TO BE HELD LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES OR CLAIMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, LOST PRODUCTIVITY, LOSS OF DATA, LOSS FROM INTERRUPTION OF BUSINESS, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES, THE SERVICES NOT MEETING CLIENT’S REQUIREMENTS OR EXPECTATIONS, OMISSIONS, TRANSLATIONS AND SYSTEM WORDINGS, FUNCTIONALITY OF FILTERS, MIGRATION ISSUES, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, HARDWARE FAILURES, UNAVAILABILITY OF BACKUPS, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION, SECURITY BREACH, OR THIRD-PARTY SERVICE FAILURES, EVEN IF PREVIOUSLY ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT, OR OTHERWISE. PROVIDER WILL NOT BE LIABLE FOR ANY KIND OF AUTHORIZED ACCESS OR ANY HARM THAT MAY BE CAUSED BY CLIENT’S ACCESS TO THIRD-PARTY APPLICATION PROGRAMMING INTERFACES OR THE EXECUTION OR TRANSMISSION OF MALICIOUS CODE OR SIMILAR OCCURRENCES, INCLUDING WITHOUT LIMITATION, DISABLING DEVICES, DROP DEAD DEVICES, TIME BOMBS, LOGIC BOMBS, TRAP DOORS, TROJAN HORSES, WORMS, VIRUSES, HACKERS, PHISHERS, CRYPTO-LOCKERS, RANSOMWARE, AND SIMILAR MECHANISMS.  

CLIENT ACKNOWLEDGES AND AGREES THAT PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT FOR THE CONSIDERATION GIVEN BY CLIENT BUT FOR THE LIMITATIONS OF LIABILITY AND DAMAGES CONTAINED IN THIS AGREEMENT. CLIENT ACKNOWLEDGES AND AGREES THAT THE RIGHT TO RECEIVE THE SERVICES IN EXCHANGE FOR THE LIMITATIONS IN THIS AGREEMENT AND THE OTHER CONSIDERATION GIVEN BY CLIENT FOR THE SERVICES CONSTITUTES A BARGAIN THAT IS FAIR AND REASONABLE. 

INSURANCE 

Client Obligations: Client shall maintain a minimum of One Million Dollars (US $1,000,000) in insurance coverage through its respective carriers. Such insurance must include, at a minimum, commercial general liability, workers’ compensation coverage, and first-party cyber liability. 

Provider Obligations: Provider agrees to maintain during the Term, professional liability insurance including errors and omissions with aggregate limits of at least One Million Dollars (US $1,000,000). Client’s insurance shall be primary over Provider’s insurance. Client agrees to waive and to require its insurers to waive any rights of subrogation or recovery they may have against Provider, its agents, officers, directors, and employees. 

DATA PRIVACY & PROTECTIONClient DataSubject to the terms outlined in this Agreement, including Sections 25.2 and 25.3 below, Provider may use Client Data to develop, maintain, and market the Software and Subscription Services and to, among other purposes, develop, train, improve, maintain, and market affiliate machine learning and artificial intelligence (AI) technologies, provided such use complies with applicable privacy and data protection laws, including but not limited to the GDPR, the CCPA, and other relevant privacy laws. 

Provider agrees to anonymize, aggregate, or otherwise de-identify Client Data prior to its use in developing machine learning and AI technologies, ensuring that such data cannot reasonably identify a natural person. All datasets created from Client Data specifically for machine learning and AI technologies will be owned exclusively by Provider. Additionally, any learnings, improvements, updates, upgrades, new versions, or other technology resulting from such learnings or AI shall also be owned exclusively by Provider. 

Compliance with Privacy and Data Security Laws  

Client agrees not to provide any consumer or other third-party data that is subject to privacy or data protection regulations under international, federal, state, or local laws (collectively, “Regulated Data”) to Provider, including but not limited to data governed by the GDPR, CCPA, or any similar legislation, without first: 

  • Entering into an applicable Order with Provider that explicitly identifies the Regulated Data and the specific law or regulation governing its use; and 
  • Executing a Data Processing Addendum (“DPA”) with Provider that specifies the parties’ respective obligations and compliance measures concerning such data. 

Data Processing AddendumFor Clients requiring the processing of Regulated Data, the Parties hereby incorporate into this MSA by reference the 6Storage Data Processing Addendum for Clients (the “DPA”). The DPA specifies the scope, purpose, and duration of the processing, as well as the technical and organizational measures implemented by Provider to protect the Regulated Data. Provider may include additional exhibits and appendices to the DPA, depending on the specific data privacy or data protection regulations applicable to the Client’s industry or jurisdiction. 

Provider will ensure that all processing activities involving Regulated Data are conducted in accordance with the executed DPA, applicable privacy laws, and any necessary Standard Contractual Clauses (“SCCs”) for cross-border data transfers. 

ANTI-BRIBERY AND ANTI-CORRUPTION 

Provider represents and warrants that it, its owners, directors, officers, employees, sub-contractors, and agents will act in full compliance with all applicable anti-corruption laws and regulations, including but not limited to the U.S. Foreign Corrupt Practices Act (FCPA), the UK Bribery Act 2010, and other international and local anti-bribery and anti-corruption laws. 

Provider further warrants that it will not, directly or indirectly, offer, promise, authorize, pay, or arrange for the payment of any bribe, benefit, advantage, or anything of value to any public official, private individual, entity, or other third party for the purpose of obtaining or retaining business or securing an improper advantage. 

Provider agrees to: 

  • Maintain and enforce adequate internal policies, procedures, and controls to ensure compliance with applicable anti-corruption laws; 
  • Promptly notify Client of any suspected or actual violations of applicable anti-corruption laws or this clause; and 
  • Cooperate fully with any investigations or inquiries regarding compliance with anti-corruption laws. 

For the purposes of this clause, “public official” includes but is not limited to any officer, employee, or representative of a government, government-controlled entity, political party, or public international organization. 

If Provider breaches this clause, Client may terminate this Agreement immediately upon written notice and seek any remedies available under applicable law. 

GENERAL 

Observed Holidays 

Provider reserves the right to identify observed holidays and adjust its holiday schedules from time to time. When a holiday falls on a weekend, Provider may close on the closest business day in observance of that holiday. After-hours emergency support is still available during these times, and Client will be charged for Services at Provider’s then-prevailing Holiday support rates.   

Policies 

Client is responsible for the provision of its own policies and procedures, including but not limited to web site terms and conditions, cookie policies, and privacy policies.   

Notices 

Except as otherwise provided under this Agreement, all notices, demands or requests to be given by any party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person, or sent via fax, courier service, electronic mail, or on the date of the third business day after deposit, postage prepaid, in the United States Mail via Certified Mail, return receipt requested, and addressed as set forth on the applicable Order. The address to which such notices, demands, requests, elections or other communications are to be given by either party may be changed by written notice given by such party to the other party pursuant to this Section. 

Force Majeure 

Provider will not be liable for any failure of performance of the Software and Subscription Services due to causes beyond its reasonable control, including, but not limited to, fire, flood, electric power interruptions, national or regional emergencies, epidemics, pandemics, public health emergencies,  stay-at-home orders, furloughs, quarantines, or other restriction or prohibition, civil disorder, acts of terrorism, riots, strikes, Acts of God, or any law, regulation, directive, or order of the United States government, or any other governmental agency, including state and local governments having jurisdiction over Provider or the Software and Subscription Services provided hereunder (the “Affected Performance”).  

Any party whose performance is so affected shall give written notice to the other party describing the Affected Performance. The parties promptly shall confer, in good faith, to agree upon equitable, reasonable action to minimize the impact on both parties of such condition. If the delay caused by the force majeure event lasts for a period of more than thirty (30) days, the parties shall attempt to negotiate an equitable modification to the Agreement pertaining to the Affected Performance. If the parties are unable to agree upon an equitable modification, then either party may serve thirty (30) days’ written notice of termination on the other party with respect only to the portion of the Agreement relating to the Affected Performance. Client shall pay Provider for that portion of the Affected Performance that was completed or that was in the process of being completed through the effective termination date of the Affected Performance. 

Waiver 

No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy hereunder will constitute a waiver of any right or remedy, or future exercise thereof. 

Assignment 

Neither party may assign this MSA in whole or in part, or any of its rights or obligations hereunder, without the prior written consent of the other party, except as expressly provided below. 

Provider may assign or transfer its rights, interests, and obligations under this MSA without Client’s consent in the following circumstances: 

  • A change in control resulting in the transfer of 50% or more of the equity of Provider; 
  • The sale of substantially all of Provider’s assets; or 
  • The restructuring or reorganization of Provider or its affiliate entities. 

In the event of such an assignment or transfer, Provider shall promptly notify Client in writing and ensure that the assignee or transferee is bound by the terms of this Agreement. 

If Client attempts to assign or transfer its rights, interests, or obligations under this Agreement without Provider’s prior written consent, such assignment or transfer will be invalid, and Client will remain responsible for all Fees under this Agreement and any Attachments, regardless of whether Client continues to derive any benefit from the Software and Subscription Services. 

Provider may subcontract with third parties to deliver some or all of the Software and Subscription Services. Such subcontracting shall not be interpreted as an assignment of this Agreement. Provider will use commercially reasonable efforts to ensure that all subcontractors comply with the terms of this Agreement. Provider remains solely responsible for fulfilling its obligations under this Agreement unless otherwise expressly agreed. 

This clause is binding upon and will inure to the benefit of the parties, their successors, and permitted assigns. 

Marketing 

Client hereby grants Provider the right to reference Client’s name, industry, logo, and URLs in its marketing literature, website, and/or correspondence to potential new clients, so as to identify Client as a customer of Provider for marketing purposes and for Provider’s benefit. Such information is not considered Confidential Information subject to non-disclosure. 

Notifications and Alerts 

Client hereby grants Provider the right to utilize Client information to send alerts, notifications, news, and general correspondence to Client to provide the Software and Subscription Services.Survival 

The parties’ respective duties and obligations with respect to proprietary rights, intellectual property rights, and non-disclosure and confidentiality will survive and remain in effect, notwithstanding the termination or expiration of this Agreement.Amendment 

Provider may, from time to time, in its sole discretion, and for any reason, amend the Order, the Master Software and Services Agreement and any other terms and conditions. 

Governing Law 

This MSA is to be governed by and construed in accordance with the laws of Missouri.   

Severability 

If any term or provision of this agreement is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfill the parties’ intention underlying the invalid term or provision. 

Third-Party Beneficiaries 

The parties acknowledge and agree that 6Storage USA, LLC is an intended third-party beneficiary of this Agreement.  6Storage USA, LLC shall have the right to enforce the provisions of this Agreement as if it were a party hereto.  Otherwise, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein is to be construed to give any person or entity, other than the parties hereto and their respective successors and permitted assigns, any legal or equitable rights hereunder.  

No Disparagement 

Neither Party, nor any of its respective partners, principals, shareholders, members, officers, directors, employees, affiliates, subsidiaries, agents, or representatives, shall initiate or participate in any action or conduct tending to injure, bring into disrepute, ridicule, damage, or destroy the goodwill of Provider or Client, or the others’ affiliates. The foregoing shall not be construed to prevent or prohibit a Provider or Client, or any of its respective partners, principals, shareholders, members, officers, directors, employees, affiliates, subsidiaries, agents, or representatives, from: (i) exercising its rights under this Agreement; (ii) complying with a legal obligation or a professional responsibility; or, (iii) reporting, providing, or disclosing information to federal, state, municipal, or local government agencies, authorities, or officials in the ordinary course of business or as required by law. Further, in the event Provider or Client or any of its respective partners, principals, shareholders, members, officers, directors, employees, affiliates, subsidiaries, agents, or representatives breach this Section, the non-breaching party and its respective partners, principals, shareholders, members, officers, directors, employees, affiliates, subsidiaries, agents, and representatives shall no longer be bound by the obligations set forth under this Section.Entire Agreement 

This Master Services Agreement, the Order, the Service Attachments or Descriptions, and any other attachments thereto (collectively, the “Agreement”) set forth Provider’s entire understanding with respect to the subject matter hereof and are binding upon both parties, their successors, and their permitted assigns, in accordance with the terms of the Agreement. There are no understandings, representations, or agreements other than those set forth herein. Each party, along with its respective legal counsel, has had the opportunity to review this agreement.  Accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of, or against either party.