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The following Master Services Terms and Conditions (these “Services Terms”) of Reverus, LLC (the “MSP”) apply to any Statement of Work, Quote and Order Form (collectively, “Order”) entered into by and between the Customer (as identified on the Order) and the MSP. Capitalized terms used but not defined in these Services Terms have the meanings assigned to them in the Order.

These Services Terms set forth the terms and conditions pursuant to which MSP will provide services as set out hereunder to the Customer. These Service Terms should be read together with any Orders entered between the MSP and Customer.

1. TERM
Unless terminated as provided herein, these Services Terms commence on the “Term Start Date” and continue through the “Term Completion Date” as set forth on each Order (the “Term”).

Unless otherwise specified, these Services Terms shall automatically renew for successive one (1) year terms following the Term Completion Date unless either party provides written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. 

2. SERVICES TO BE DELIVERED

2.1.    Services. MSP shall provide the IT support services set forth in each applicable Statement of Work or Order (“Services”).

2.2.    MSP Platform and Third-Party Software. Services may involve the use of software, including chat-based IT support systems or web-based ticketing solutions. Such systems may be proprietary to MSP (the “MSP Platform”) or may be third-party software (“Third-Party Software”). Any such MSP Platform or Third Party Software will be listed in the Order. Rights or restrictions for the MSP Platform will be detailed in the Order and incorporated as the “MSP Platform License Terms”. Customer’s use of Third-Party Software will be governed by the applicable license agreements (“Third-Party Licenses”) between the Customer and the software owner or as a sublicensee to MSP, as the case may be. If Customer is the direct licensee, Customer represents and warrants it has sufficient license rights to authorize MSP’s installation and use of the Third-Party Software for the Services.

2.3.    Hardware and Purchased Software. As agreed in an Order, MSP may provide hardware (“Hardware”) and resell or grant access to Third-Party Software. Services may include integrating the MSP Platform or Third-Party Software with the Customer’s IT systems (“Customer Applications”) used by individuals (“End Users”) acting on behalf of the Customer. MSP maintains a published list of supported software titles covered under its third-party patching licenses which may be provided to customer upon request (“Supported Software Titles”). Any support MSP provides relating to software titles that are not Supported Software Titles shall be provided only on a billable basis at MSP’s then-current rates.

2.4.    Customer Obligations. Customer shall provide MSP with:

(i)    All required subscriptions, credentials, and information (“Customer Information”) necessary for operating the MSP Platform or delivering the Services.

(ii)    Access to servers, devices, systems, software, and services (“Customer Systems”), including End User devices, as required for Services.

Customer Systems must meet MSP’s written specifications as of the Term Start Date specified in the Order. Customer represents and warrants that it has the necessary rights and permissions for MSP to use the Customer Systems as outlined in the Order and these Services Terms.

2.5.    Hardware Procurement. MSP will facilitate Hardware procurement and provisioning in accordance with its current hardware procurement policy. Customer acknowledges:

(i)    Prepayment is required for Hardware purchased through MSP.

(ii)   Shipping, courier, or special delivery charges must be prepaid by the Customer.

(iii)  Hardware procurement timelines may vary due to availability, local conditions, or other factors outside MSP’s control.

2.6    Monitoring Services. Monitoring tracks critical alerts, scans, and event resolutions for the device categories and counts included in the Order. MSP shall make commercially reasonable efforts to rectify conditions identified in a timely manner through remote means which are within the scope of the Services. Monitoring will be provided during business hours, including public holidays, unless 24/7 support is purchased.

2.7     Support. Remote helpdesk and vendor management of Customer IT network(s) will be provided to through remote means between the hours of 8:00am – 5:00pm Monday through Friday, excluding public holidays. All other support hours are outside the scope of Services and will be subject to hourly charges unless 24/7 support is purchased. Tickets must be opened via the support chat icon (located on the user’s desktop or in the right-hand corner of the taskbar) or via email at getanswers@reverus.com (“Support Email”). Notwithstanding any language to the contrary, the SLAs exclude issues communicated by phone or to any email other than the Support Email. Should third-party vendor support charges be required to resolve any issues, these charges will be passed on to Customer after first receiving Customer’s authorization to incur them.

2.8     Third Parties. MSP shall have the right to use third parties in the performance of its obligations hereunder and disclose Customer’s Confidential Information to such third parties provided such third parties are subject to confidentiality obligations similar to those between MSP and Customer. Unless otherwise agreed in an Order, such third parties may include offshore entities who employ foreign nationals. Taxes or fees imposed on MSP in a foreign jurisdiction as a result of MSP’s activities or presence in such jurisdiction (e.g, permanent establishment or local income taxes) shall be the responsibility of MSP, and Customer shall have no obligation to reimburse or otherwise compensate MSP for such taxes.

2.9     Additional Services. If agreed in writing, MSP may also offer Customer the following services subject to resource availability, on either a time and materials basis at MSP’s then prevailing rates or for a mutually agreeable pre-determined fee:

(i)     work performed outside the contracted support times at the request of Customer;

(ii)    on-site services, including any related travel time, to carry out such work as the parties may agree upon from time-to-time; or

(iii)    training and/or additional documentation services.

3. LIMITATIONS
3.1 Suitability of Existing Environment. In order for Customer’s existing environment to qualify for the Services, the following minimum requirements must be met:

(i)      All Servers, Desktop PC’s, and Notebooks/Laptops must have vendor-supported versions of Operating Systems with all of the latest service packs and critical updates installed;

(ii)      All Server and Desktop Software must be genuine, licensed and vendor-supported;

(iii)     The environment must have a currently licensed, up-to-date and vendor-supported server-based antivirus solution protecting all servers, desktops, notebooks/laptops, and email;

(iv)     The environment must have a currently licensed, vendor-supported server-based backup solution that can be monitored and send notifications on job failures and successes;

(v)     The environment must have a currently licensed, vendor-supported hardware firewall between the internal network and the internet;

(vi)     All wireless data traffic in the environment must be securely encrypted; and

(vii)    There must be an outside static IP address assigned to a network device.

3.2 Restrictions. Customer will not, and will not permit End Users to:

(i)     use the Services or MSP Platform in a manner that violates any applicable laws or MSP Policies;

(ii)    use the Services or MSP Platform in a manner that infringes, misappropriates, or otherwise violates any third party’s rights;

(iii)   send MSP any personal information of children under 13 years or the applicable age of digital consent or allow minors to use Services without written consent from their parent or guardian;

(iv)   use any output of the Services to develop any artificial intelligence models that compete with MSP’s products and services;

(v)    use any method to extract data from the Services other than as permitted through the APIs; or

(vi)   buy, sell, or transfer API keys from, to, or with a third party.

“MSP Policies” shall mean usage policies of MSP in relation to its Services that are set out in MSP’s website or communicated to the Customer from time to time.

3.3 Excluded Activities. Unless agreed in a separate Order, Services shall not include the diagnosis and rectification of any fault resulting from:

  • equipment or software, or versions of software, not set forth in an Order or otherwise approved in writing by MSP;
  • inadequate training by Customer of its personnel;
  • unauthorized use of the MSP Platform;
  • any actions not in accordance with the documentation or the operating environment recommended by MSP, or otherwise contrary to MSP’s instructions;
  • modifications or enhancements not made by MSP, or made without MSP’s prior written consent; and
  • failure by Customer to implement MSP’s recommendations or solutions.

Services do not cover:

  • support for personally owned equipment;
  • home or cellular network issues;
  • older or unsupported equipment and software;
  • software that is not genuine, currently licensed, and vendor-supported;
  • more devices then listed in the Order;
  • third-party owned equipment or software not explicitly included in an Order;
  • custom application development; or
  • training beyond basic use of the MSP Platform.

3.4 Customer Delays. Notwithstanding any provision to the contrary herein, Customer shall make all payments required under these Services Terms on time, without withholding, delay, reduction, or refund, provided MSP has fully performed its material obligations. If MSP is unable to meet schedule requirements due to Customer’s failure to provide necessary facilities, computer resources, software, personnel, or business information (including Customer Information, Customer Systems, Customer Application, or Third-Party Software), such delays and any resulting rework shall be billable to Customer at MSP’s then-current rates. Customer acknowledges and agrees to bear all costs associated with these delays, which will be invoiced accordingly. MSP shall have no liability for any loss, claims or expenses relating to or arising out of Customer delays.

3.5 Chronically Failing Equipment. Chronically failing equipment repeatedly breaks down and consistently causes user and business interruption even though repairs are accomplished.  Should this occur, while rare, Customer agrees to work constructively and positively with MSP to replace the equipment at Customer’s additional cost.

3.6 Recovery Service Limitations. Recovery service for viruses is limited to those systems protected by antivirus software approved by MSP. Recovery service for malware is limited to those systems protected by malware software approved by MSP. All other situations will be billed at hourly rates with no recovery guarantees.

4. CUSTOMER INFORMATION AND RESPONSIBILITIES

4.1 Customer Users. From time to time, Customer will designate one or more End Users or any of Customer’s employees, agents, contractors and other users of the Customer Systems (collectively, “Customer Users”) as having the authority to take administrative actions with respect to the Services (“Authorized Customer Users”). MSP shall be entitled to rely on the instructions and/or other information provided by Authorized Customer Users or otherwise provided through the MSP account associated with Authorized Customer Users and may communicate with Customer Authorized Users regarding all aspects of the Services, the Customer Systems and Customer Information. Authorized Customer Users shall also include the signatory to the Order (or individual accepting any order through electronic means), and any Customer User who is delegated the task of instructing the MSP as evidenced by the communications of the parties. Customer is bound by the instructions of its Authorized Customer Users. MSP shall have no obligation to verify or evaluate any such instructions or information or to identify or safeguard against the potential effects of such instructions. MSP shall not be liable for the results of any actions or inactions carried out in reliance on such instructions or information. It is the sole responsibility of Customer to have in place its own internal policies and procedures regarding all Customer Users’ interactions with MSP and the MSP Platform and Services.
4.2 Customer Warranties. Customer represents and warrants to MSP that:

(i)     Customer has the full power and authority to enter into the Order and Services Terms; that their execution and delivery have been authorized by all requisite action; the signatory is authorized to bind Customer; and that the Order and Services Terms constitute a valid and legally binding obligation enforceable in accordance with their terms.

(ii)    Customer Users have been informed and will remain informed that their use of Customer Systems may be monitored as contemplated under these terms;

(iii)   Customer Information and any other information provided to MSP was lawfully acquired and does not infringe on any third-party rights; and

(iv)   MSP’s use of such information will not violate the privacy or other rights (statutory or otherwise) of End Users or any third parties.

MSP may suspend the Services, MSP Platform and other activity if it reasonably suspects a breach of these warranties.

4.3. Customer Responsibilities. Customer shall:

(i)     Maintain appropriate cybersecurity insurance proportional to its business and financial risk;

(ii)    Ensure its own compliance with applicable legal and regulatory obligations unless explicitly stated otherwise in these terms or a related order;

(iii)   Notify MSP at least 14 days in advance of planned changes to its IT environment that may affect the Services;

(iv)   Ensure employees participate in necessary training provided by MSP to support effective service delivery;

(v)    Notify MSP promptly of any faults or failures in the MSP Platform or Services via a ticket as specified in these Services Terms;

(vi)   Cooperate reasonably with MSP personnel to diagnose, investigate, and resolve faults;

(vii)  Provide MSP with adequate access and resources, at no charge, as reasonably required to perform the Services;

(viii)  Obtain MSP’s prior consent before installing updates or new releases to operating systems or databases; and

(ix)   Procure, install, and maintain all non-MSP hardware, equipment, media, and software as required for the Services.

5. FEES

5.1 Fees. The Services provided under these Services Terms will be billed according to the fee schedule set forth in the Order. Unless otherwise specifically stated in the Order, the fees do not include expenses. Customer shall reimburse MSP for all reasonable travel, food, lodging, and other out-of-pocket expenses incurred in performance of these Services Terms. MSP agrees to comply with Customer’s expense policies, as long as Customer provides those policies to MSP with reasonable advance notice and in writing. If any additional work is performed beyond the Term Completion Date as set forth on the Order or scope of these Services Terms, the rate will be mutually agreed upon by the parties or if no such rate is established, such work will be performed under MSP’s standard rate in effect at the time. Unless otherwise provided in an Order, invoices are due and payable by Customer within 30 days of the invoice date. Any late payment will be subject to any costs of collection (including reasonable legal fees) and bear interest at the rate of 1.5% per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. Fees for Services are subject to an automatic five percent (5%) annual increase on each anniversary of the Term Start Date.

5.2 Taxes. All charges and fees set out in the Order are quoted exclusive of applicable taxes, duties, or similar charges. Customer shall pay all sales, use, withholdings, excise, or other taxes or duties arising out of these Services Terms, provided, however, that Customer will not be responsible for taxes on the net income of MSP. Invoices will be sent by electronic delivery unless requested otherwise by Customer, in which event additional fees will apply. Customer is solely responsible for providing MSP, if applicable, with any valid and properly executed sales tax exemption certificates, or other evidence of sales tax exemption, in a timely manner and in accordance with applicable law. MSP reserves the right to charge and collect all applicable sales taxes until such documentation is received. MSP will have no obligation to refund or credit any taxes that were collected and remitted prior to receipt of valid sales tax exemption documentation.

5.3 Purchase Orders. Customer agrees to provide MSP with a valid purchase order, if applicable, promptly upon execution of an Order. Notwithstanding anything to the contrary herein, any and all terms contained in invoices, purchase orders, acknowledgments, shipping instructions, or other forms exchanged between the parties in connection with the Services will be void and of no effect. Customer’s failure to issue a purchase order or provide such purchase order to MSP, however, will in no way relieve Customer of any obligation entered into pursuant to these Services Terms, including, but not limited to, its obligation to pay MSP in a timely fashion.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Customer Information and Aggregate Data. Customer retains all rights, title and interests in and to the Customer Information and all data, analyses and other results obtained from the MSP Platform through its processing of Customer Information or access to the Customer Systems. Notwithstanding the foregoing, Customer acknowledges and agrees that MSP:

  • may use and modify Customer Information and such data, analyses and other results for the purposes of providing the MSP Platform and Services to Customer,
  • may collect information and generate Aggregate Data (as defined below),
  • is and will remain the sole and exclusive owner of all right, title and interest in and to all Aggregate Data, including all intellectual property rights related thereto, and
  • may freely use and make available Aggregate Data for MSP’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing MSP’s current and future products and services including training of artificial intelligence models) during the term of the Order and thereafter.

“Aggregate Data” means any of the following information that has been aggregated with other similar information of other MSP customers, and anonymized so that it does not reveal any personally identifying information or information identifying Customer: (a) information related to how MSP’s customers are using the MSP Platform and Services, (b) information related to the performance of the MSP Platform or Services, including the resolution to and the type, quantity, and cause of inquiries, requests, and/or incidents reported by Customer or Customer Users, including any statistical analysis, benchmarking reports or comparison data and (c) any other information that provides insight into MSP’s business.

6.2 MSP Platform. MSP Platform is licensed, not sold. Nothing in these Services Terms conveys to Customer any rights of ownership in or related to the MSP Platform, or any intellectual property rights therein. Except as expressly set forth herein, MSP alone (and its licensors, where applicable) will retain all intellectual property rights relating to the MSP Platform, and any improvements and other modifications to the MSP Platform. MSP and shall be free to use, and to allow others to use, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the MSP Platform. Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the MSP Platform or the Services or other materials provided to Customer shall be owned by MSP, and Customer hereby agrees to assign any such rights to MSP. Nothing in these Services Terms shall preclude MSP from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by MSP in the performance of Services hereunder.

7. CONFIDENTIALITY

7.1 “Confidential Information” means all financial, business, operational, marketing or technical information disclosed by or for a party in relation to these Services Terms whether disclosed in tangible, written, oral or electronic form, that is of a nature that should reasonably be considered to be confidential and proprietary. Without limitation, (a) all non-public product, pricing, financial, strategy and technical information related to the Services shall be treated as MSP’s Confidential Information and (b) all Customer Information shall be deemed Customer’s Confidential Information for purposes of this Section 7. Confidential Information expressly excludes any information to the extent that a receiving party can demonstrate such information is:

(i)     already known by it without restriction prior to receipt from the disclosing party,

(ii)    rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party,

(iii)   generally available to the public without breach of these Services Terms or

(iv)   independently developed by the receiving party without reference to or use of any of the disclosing party’s Confidential Information.

7.2 Each party agrees at all times to use all reasonable efforts, but in any case, no less than the efforts that each party uses in the protection of its own Confidential Information of like value, to protect Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or subcontractors who:

  • require access in the course of their assigned duties and responsibilities; and
  • have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.

MSP may in its sole but reasonable discretion disclose Customer’s Confidential Information to hardware, software, and other technology providers in order to aid in the resolution of Customer issues.

7.3 Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party will be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfil; its obligations under this Section.

8. PERSONAL DATA

MSP’s obligations with respect to its processing of personally identifiable information (if any) on behalf of Customer are set forth in the ‘Data Processing Addendum’ executed by the parties.

9. TERMINATION
9.1 These Services Terms may be terminated prior to the Term Completion Date as set forth on the Order in accordance with the following:

(i)     Termination for Cause. Either party may terminate these Services Terms and the associated Order in the event the other party has failed to perform any obligation required to be performed under these Services Terms and such failure is not corrected within 30 days from receipt of written notice advising of such alleged failure from the other party.

(ii). Termination without Cause. Except if set forth in writing in an Order, either party may terminate this Agreement for convenience, provided that in the event that Customer elects to terminate an Order or this Agreement for convenience prior to the completion of the Term for one or more Orders, the Customer agrees to pay the full amount remaining under such Orders for the Term, including but not limited to the fees for unperformed Services and other work that will no longer be performed as a result of such termination (collectively, “Fees for Unperformed Work”). All invoices must be paid in full prior to engaging in the offboarding process. MSP will provide up to ten (10) hours of offboarding support at no additional charge and any support beyond that shall be billable at MSP’s then-current rates. The Fees for Unperformed Work shall be due and payable upon receipt of the invoice from MSP detailing the Fees for Unperformed Work. Furthermore, Customer acknowledges that the paid user count entered into on each Order may not be reduced during the Term of the Order. In addition, Customer acknowledges that additional paid users added during the term of the Order may not be reduced during the remainder Term of the Order. Each Order shall remain in effect from the Term Start Date till the Term Completion Date specified in the Order.

 

9.2 Effect of Termination. Upon termination of these Services Terms, Customer shall no longer access the MSP Platform and the Services. Termination of these Services Terms will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under these Services Terms.

10. LIMITED WARRANTY AND DISCLAIMER

10.1 Managed Services Warranty. MSP warrants that the Services will be delivered in a good and workmanlike manner.

10.2 Software Warranty. If the MSP Platform is licensed, warranties associated with the MSP Platform will be set forth in the MSP Platform License Terms. To the extent it is permitted to do so, MSP will pass through to Customer any third-party warranties in respect of the Hardware and/or purchased Third Party Software as applicable.

10.3 Warranty Disclaimer. MSP DOES NOT WARRANT THAT THE SERVICES, HARDWARE, OR PURCHASED THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. OTHER THAN THE EXPRESS WARRANTY SET FORTH IN SECTION 10.1, THE SERVICES ARE PROVIDED “AS IS” AND MSP DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

11. LIMITATION OF LIABILITY

11.1 LIABILITY CAP. EXCEPT FOR DAMAGES ARISING FROM FRAUD, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, MSP’S (AND ITS AFFILIATES’, LICENSORS’ AND AGENTS’) LIABILITY ARISING OUT OF OR RELATED TO THESE SERVICE TERMS WILL NOT EXCEED, IN THE AGGREGATE, THE FEE ACTUALLY PAID TO MSP FOR THE SERVICES UNDER THE CORRESPONDING ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM, PROVIDED THAT DAMAGES ARISING OUT OF OR RELATED TO THE DPA, A BREACH OF CONFIDENTIALITY OR PERSONAL INFORMATION SHALL BE SUBJECT TO A SUPER CAP OF TWO (2X) TIMES THE FEES ACTUALLY PAID TO MSP FOR THE SERVICES UNDER THE CORRESPONDING ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM.

11.2 DISCLAIMER OF DAMAGES. IN NO EVENT WILL MSP (OR ITS AFFILIATES, LICENSORS OR AGENTS) BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OR ANY LOSS OF REVENUE, GOODWILL, PROFITS, DATA OR DATA USE ARISING OUT OF OR RELATED TO THESE SERVICES TERMS.

11.3 THE LIABILITIES LIMITED BY SECTIONS 11.1 AND 11.2 APPLY:

  • REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE;
  • EVEN IF MSP IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE;
  • ATTORNEYS’ FEES AND COSTS; AND
  • EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 11, MSP’S (AND ITS AFFILIATES’, LICENSORS’ AND AGENTS’) LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.

12. INDEMNIFICATION

12.1 MSP Indemnification. MSP will defend at its expense any cause of action brought against Customer, to the extent that such cause of action is based on a claim that the MSP Platform provided by MSP, when used and operated in accordance with the terms and conditions of these Services Terms, infringes any United States patent, copyright, or trade secret of a third party. MSP will pay those costs and damages finally awarded against Customer pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by MSP. Customer may retain its own counsel at Customer’s own expense.

12.2 MSP will have no liability for any claim of infringement based on:

  • modification to MSP Platform that is carried out by parties other than MSP where the infringement claim would not have occurred in the absence of such modification; or
  • Customer’s use of the MSP Platform in conjunction with data or materials where use with such data or materials gave rise to the infringement claim; or
  • Customer’s use of the MSP Platform outside the permitted scope of these Services Terms.

12.3 Should the MSP Platform become, or in MSP’s opinion is likely to become, the subject of a claim of infringement, MSP may, at its option:

  • obtain the right for Customer to continue using the MSP Platform,
  • replace or modify the MSP Platform so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or
  • if neither of the foregoing options is commercially reasonable, terminate the access and Use of the MSP Platform.

Upon such termination, Customer shall cease accessing the MSP Platform and MSP will refund to Customer, as Customer’s sole remedy for such license termination, the remaining prepaid subscription fees paid by Customer for the terminated license. THIS SECTION 12 STATES THE ENTIRE LIABILITY OF MSP WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE MSP PLATFORM.

12.4 Customer Indemnification. Customer agrees to defend, indemnify, and hold MSP and its officers, directors, employees, consultants, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer’s:

  • breach of any of its obligations set forth in MSP Platform License Terms;
  • gross negligence or wilful misconduct;
  • actual or alleged violation of applicable law by Customer or any Customer Users;
  • breach of the Customer’s representations and warranties in relation to its rights with respect to Customer Systems and/or
  • any violation by Customer or its Customer Users, of any terms, conditions, agreements or policies of any Third Party Software Providers.

12.5 Indemnification Procedures. Each indemnifying party’s obligations as set forth in this Section are subject to the other party:

  • giving the indemnifying party prompt written notice of any such claim or the possibility thereof;
  • giving the indemnifying party sole control over the defense and settlement of any such claim; and
  • providing full cooperation in good faith in the defense of any such claim.

13. MISCELLANEOUS

13.1 Assignment. Customer may not assign these Services Terms or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of MSP. Any purported assignment of these Services Terms, or any license or rights in violation of this Section will be deemed void.

13.2 Third Parties. MSP will have the right to use third parties, including, but not limited to, employees of MSP’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of these Services Terms, all references to MSP or its employees will be deemed to include such Subcontractors.

13.3 Technical Data. Customer shall not provide to MSP any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. Customer shall certify that all information provided to MSP has been reviewed and scrubbed so that all technical data and other sensitive information relevant to Customer’s ITAR regulated project has been removed and the information provided is only relevant to bug reports on MSP’s products.

13.4 Compliance with Laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these Services Terms. Customer agrees to comply with all applicable trade laws, including, but not limited to, sanctions and export control laws (“Trade Laws”). The Services provided under these Services Terms may not be used in or for the benefit of, or exported or re-exported to, (a) any country or territory that is subject to U.S. embargo or (b) any individual or entity with whom dealings are prohibited or restricted by Trade Laws. Furthermore, the Services may not be utilized for any end use that is prohibited by Trade Laws, and any Customer Information, Customer Application or Customer Systems shall not include any material or information that requires a government license for release or export under Trade Laws. Customer agrees to also comply with all other applicable laws, regulations, and ordinances relating to its performance under these Services Terms. The parties agree that these Services Terms shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.

13.5 Customer agrees not to use the Services to create, receive, maintain, transmit, or otherwise process any information that includes or constitutes “Protected Health Information” as defined under the HIPAA Privacy Rule (45 C.F.R. Section 160.103).

13.6 Publicity. Customer agrees to cooperate in reasonable MSP marketing efforts requested, including but not limited to, a press release, providing testimonials, participating in case studies, and sharing the results of the services in MSP marketing materials. The parties further agree that MSP may include Customer’s logo on publicly displayed customer lists (including MSP’s Internet Web site and public advertisements). There shall be a “Powered by MSP” logo, to be provided by MSP, in the bottom portion of any of Customer’s Web pages that utilize the MSP Platform, which logo shall link directly to the then-current MSP Web site home page

13.7 Survival. The provisions set forth in Sections 5 (Fees), 6 (Intellectual Property Rights), 7 (Confidentiality), 9 (Termination), 11 (Limitation of Liability), 12 (Indemnification) and 13 (Miscellaneous) of these Services Terms and any other sections of these Services Terms which by their nature should survive termination will survive termination or expiration of these Services Terms and any applicable license hereunder.

13.8 Notices. Any notice required under these Services Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Order or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.

13.9 Force Majeure. MSP will not be liable to Customer for any delay or failure of MSP to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of MSP. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.

13.10 Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the MSP Platform and Support, when accessed by the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such access.

13.11 Entire Agreement. These Services Terms together with each Order and any documents listed in an applicable Order constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein. Any signed copy of these Services Terms made by reliable means will be considered an original.

13.12 Modifications. The parties agree that these Services Terms cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.

13.13 Non-solicitation. During the term of these Services Terms and for a period of 2 years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of MSP without the prior written consent of MSP. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of MSP for a period of 1 year from such former employee’s or Subcontractor’s last date of service with MSP. Violation of this provision will entitle MSP to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation

13.14 Headings. Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.

13.15 No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

13.16 Severability and Reformation. Each provision of these Services Terms is a separately enforceable provision. If any provision of these Services Terms is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for these Services Terms to remain in effect in accordance with its terms as modified by such reformation.

13.17 Independent Contractor. MSP is an independent contractor and nothing in these Services Terms will be deemed to make MSP an agent, employee, partner, or joint venturer of Customer. Neither party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.

13.18 Governing Law; Venue. The laws of the State of Delaware, USA govern the interpretation of these Services Terms, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to these Services Terms. The parties agree that the federal and state courts located in Wilmington, DE, USA will have exclusive jurisdiction for any dispute arising under, out of, or relating to these Services Terms. Mediation will be held in Wilmington, DE, USA.

13.19 Dispute Resolution.

  • Negotiations. Where there is a dispute, controversy, or claim arising under, out of, or relating to these Services Terms, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by telephone within 5 business days of the date of the written notification in order to reach an agreement about the nature of the alleged deficiency and the corrective action to be taken by the respective parties.
  • Mediation. Any dispute, controversy, or claim arising under, out of, or relating to these Services Terms and any subsequent amendments of these Services Terms, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, and any claims with respect to the validity of this mediation agreement (hereinafter the “Dispute”), shall be submitted to non-binding mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to other dispute resolution. The language to be used in the mediation will be English.
  • Opportunity to Cure. Notwithstanding anything contained hereunder, Customer agrees and acknowledges that no dispute resolution or litigation will be pursued by Customer for any breach of these Services Terms until and unless MSP has had an opportunity to cure any alleged breach. Customer agrees to provide MSP with a detailed description of any alleged failure and a description of the steps that Customer understands must be taken by MSP to resolve the failure. MSP shall have 60 days from MSP’s receipt of Customer’s notice to complete the cure.
  • Injunctive Relief. The parties agree that it will not be inconsistent with their duty to mediate to seek injunctive or other interim relief from a competent court. The parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other interim relief with respect to a violation of intellectual property rights, the non-solicitation provision, or confidentiality obligations. The choice of venue does not prevent a party from seeking injunctive or any interim relief in any appropriate jurisdiction.