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Master Services Agreement

THIS MASTER SERVICES AGREEMENT (MSA) GOVERNS CUSTOMER’S USE OF 3GIT LLC SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement was last updated on January 1, 2023. It is effective between Customer and Provider as of the date of Customer’s accepting this Agreement.

 

1. DEFINITIONS

“Affiliate” means any entity that a party directly or indirectly controls (e.g. subsidiary) or is controlled by (e.g. parent), or with which it is under common control (e.g. sibling).

“Agreement” means this Master Services Agreement (MSA).

“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

“Endpoint” means any physical or virtual device, such as, a computer, server, laptop, desktop computer, mobile, cellular, container or virtual image.

“Managed Services” means the level of services purchased by Customer pursuant to an Order to be performed by Provider on a recurring basis.

“Order” or “Order Form” means any purchase order or other ordering document (including any SOW) or online order accepted by Provider that specifies the Services to be provided hereunder and is entered into between Customer and Provider, including any addenda and supplements thereto. By entering into an Order hereunder, an Customer agrees to be bound by the terms of this Agreement.

“Order Term” means the period of time set forth in the applicable Order during which: (i) Customer is authorized by Provider to use the Managed Services, or (ii) Professional Services may be performed.

“Products” means any item that may be resold by Provider to Customer pursuant to an Order.

“Professional Service” means any professional services performed by Provider for Customer pursuant to an SOW or other Order. Professional Services may include without limitation consulting services, systems design services, installation services, data migration services, project management services, and on-site technical support.

“Provider” means 3GIT LLC d.b.a deskside.

“Services” means, collectively, any Managed Services and any Professional Services.

“Statement of Work” or “SOW” means a mutually-agreed executed written document describing the Professional Services to be performed by Provider for Customer, deliverables, fees, and expenses related thereto.

“Subscription Services” means any cloud-based platform made available by Provider to Customer, any software made available by Provider to Customer online via the applicable Customer logins, and/or associated Managed Services, as ordered by Customer under an Order, as applicable.

“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Provider without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Provider at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

 
2. STATEMENT OF SERVICES
 
2.1 Service Attachments
The specific services to be delivered by Provider and the fees for such services are described in one or more Service Attachments to this MSA. The services to be provided under the Service Attachments are the “Services.” The Service Attachments identify the terms and conditions applicable to particular Services, as opposed to those generally applicable to all Services. Each Service Attachment includes a description of Services to be performed, applicable Service Fees, and Service-specific terms, conditions, responsibilities and delivery schedules. Except for Supplemental Services, and unless otherwise agreed in writing, the services to be delivered by Provider to Client are limited to those Services specifically described in the Service Attachments. In the event of any conflict between the terms of a Service Attachment and the terms of this MSA, the terms in the Service Attachment control.
 
2.2 Supplemental Services
“Supplemental Services” are limited services and equipment that needed by Client on a “one-off” or emergency basis that are not included within the scope of the Services described in the Service Attachments. Client shall pay additional Service Fees for Supplemental Services. Provider shall notify Client of any such additional Service Fees for any Supplemental Services and shall obtain Client’s approval prior to providing such Services. Provider shall charge Client for Supplemental Services in the invoice issued the month following delivery of the Supplemental Services.  Provider shall use commercially reasonable efforts to provide Supplemental Services. However, Provider has no obligation to determine the need for or to provide any Supplemental Services. All Supplemental Services are provided on an “as-is” basis and exclude no warranties of any kind, whether express or implied.
 
2.3 Additional Services
Client shall notify Provider of all new opportunities to provide information systems management, engineering or other services to Client and, in situations that are mutually beneficial to Client and Provider, to include such services within the scope of this MSA under one or more additional Service Attachments.
 
2.4 Requests for Changes
If Client wishes to implement changes in any Services during the term of an applicable Service Attachment, Client must request such changes in writing and deliver the request to Provider.  Provider shall review and return the request to Client with a written evaluation of the changes, including the cost of the changes (if any) and the impact the changes will have on the completion of the Services. Following its review of Provider’s evaluation, Client may then choose to approve the changes by signing and returning to Provider a copy of Provider’s written evaluation, which will then be subject to the terms and conditions of this MSA and any applicable Service Attachment.  No changes in any Service Attachment will be effective until Provider receives such a signed evaluation of a written change request.
 
3. FEES FOR SERVICES | PAYMENT TERMS
The specific fees for Services are set forth herein. Any services performed outside the Service Attachments will be billed at Provider’s then-current rate for hourly services unless otherwise mutually agreed to in writing by the parties.
 
3.1 Pass-Through Expenses
Client shall pay Provider’s reasonable out-of-pocket expenses, including travel expenses, lodging, meals, or other similar expenses, which may be incurred by Provider in performing Services.  Any such “Pass-Through Expenses” will be billed at cost and invoiced monthly.
 
3.2 Invoicing Requirements
Provider shall deliver to Client a monthly invoice no later than the fifth (5th) business day of each calendar month. Each invoice generally will include (1) the Service Fees owed for the following calendar month, (2) any known Pass-Through Expenses for which Client is responsible, and (3) any other applicable charges or fees for the immediately preceding month and other preceding months, including adjustments to the Service Fees.
 
3.3 Payment Terms
Client shall pay the amount reflected on any invoice as owed to Provider no later than the first day of the month following the month indicated on such 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 such amounts not paid within thirty (30) days following Client’s receipt of any such invoice (the “Payment Deadline”). If Client disputes in good faith all or any portion of the amount due on any invoice, or if Client otherwise requires 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.  The parties shall use their reasonable best efforts to resolve the dispute prior to the Payment Deadline. However, if the parties are unable to resolve the dispute prior to the Payment Deadline, Client nevertheless shall pay the entire invoiced amount to Provider by the Payment Deadline. If it is ultimately determined that such amount should not have been paid by Client to Provider, Provider shall apply a credit equal to such amount on Client’s next invoice.
 
3.4 Suspension of Service
If Client fails to pay all amounts owed to Provider under this MSA when due, then upon at least ten (10) business days prior written notice to Client, and in addition to any other remedies available at law or in equity, Provider may suspend Services under this MSA until full payment is made. However, Provider may not suspend Services if Client is working diligently and in good faith to resolve a dispute regarding the amount owed. Following any suspension of service under this provision, and after Client makes full payment to Provider, Provider shall restore the Services after validating that all components to be monitored and/or managed under any applicable Service Attachment comply with Provider’s level of security, updates and best practices.  Client shall pay a “Reactivation Fee” for such restoration equal to $250.00. Provider’s right to suspend Services under this section is in addition to Provider’s right to terminate this MSA for non-payment.
 
3.5 Taxes
All charges and fees to be paid by Client are exclusive of any applicable sales, use, excise or services taxes (“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.  The parties shall cooperate with each other in determining the extent to which any Taxes are owed, and shall provide and make available to each other any resale certificates, information regarding out-of-state use of materials, services or sale, and other exemption certificates or information reasonably requested by either party.
 
4. TERM AND TERMINATION
 
4.1 Term
This MSA commences on the MSA Effective Date and will remain in effect until either party terminates it as permitted below.
 
4.2 Termination
Either party may terminate this MSA for any reason upon at least 30 days advance, written notice given to the other party. However, termination of this MSA will not, by itself, result in the termination of any Service Attachments, and this MSA will remain in effect notwithstanding any such notice of termination unless and until all Service Attachments are terminated or expire according to their terms.
 
4.2 Effect of Termination
Upon termination of this MSA and expiration of any related Service Attachments, (i) any outstanding amounts owed to Provider shall be due immediately; (ii) all of Providers obligations to Client shall cease; and (iii) each party shall certify the destruction of any of the other party’s proprietary or confidential information in their possession.   Sections 5, through 9, and 15 through 18 shall survive termination of this MSA and expiration of any related Service Attachments.    
 
5. INDEPENDENT CONTRACTOR
Unless otherwise agreed, Provider will perform all Services solely in Provider’s capacity as an independent contractor and not as an employee, agent or representative of Client.  Provider will not be entitled to any privileges or benefits that Client may provide to its employees, and Provider will remain responsible for payment of all unemployment, social security, federal income (state and local income where applicable) and other payroll taxes or mandatory assessments imposed by any governmental body on employers in regard to those of its employees engaged in the performance of the Services.
 
Neither Provider nor Client, nor their respective employees or agents, are authorized to act or to appear to act as a representative of the other party, whether in performing the Services or otherwise.
 
Client shall indemnify and hold Provider harmless from any claims, liabilities, or damages related to a determination that Client’s employees, independent contractors, or subcontractors are employees of Provider.  
 
6. INTELLECTUAL PROPERTY RIGHTS
 
6.1 Client Works

Any writing or work of authorship, regardless of medium, Provider delivers to Client that does not constitute modifications to an existing Provider Work (as defined in  Section 5.3) constitutes a “Client Work” and is to be deemed a “work for hire” and the sole, exclusive property of Client, except for the following items, which do not constitute Client Works:

  • Software, including but not limited to any proprietary code, source code and object code, that is subject to third-party license agreements;
  • Those portions of any deliverable consisting of information in the public domain;
  • Those portions of any deliverable consisting of generic ideas, concepts, business know-how and work processes, and techniques within the computer design, support and consulting business generally; and
  • Those portions of any deliverable consisting of general computer consulting knowledge and information Provider had or acquired during the performance of its Service for Client, not including any proprietary business information of Client, conveyed to Provider by Client.

 

To the extent any Client Work is deemed not to be a “work for hire” under applicable law, Provider hereby irrevocably assigns and conveys to Client all of its right, title and interest in and such Client Work, including but not limited to all rights of patent, copyright, trade secret, know-how and other proprietary and associated rights in such Client Work. Provider shall execute other documents or take other actions that Client reasonably may request to perfect Client’s ownership of any Client Work. Client hereby grants Provider a non-exclusive, limited license to make copies of any Client Works, for use only by Provider in delivering Services to Client or for Provider’s internal purposes or those of its wholly owned affiliates, subject to any third party license agreements.

 
6.2 License to Client Works
Client hereby grants Provider a limited, non-exclusive, revocable, royalty-free license to use any Client Works for Provider’s internal business purposes only during the term of this MSA and all Service Attachments.
 
6.3 Provider Works
Any writing or work of authorship, regardless of medium, created or developed by Provider or Client in the course of performance under this Agreement and relating to existing works owned by Provider constitutes a “Provider Work,” shall not to be deemed a “work for hire,” and does 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, transfers and conveys to Provider all of Client’s right, title, and interest in such Provider Work, including, but not limited to, all rights of patent, copyright, trade secret, know-how, and or other proprietary and associated rights in such Provider Work.  Client agrees to execute such documents and take such other actions as Provider may reasonably request to perfect Provider’s ownership of any such Provider Work. If Client fails or refuses to execute any such documents, Client hereby appoints Provider as Client’s attorney-in-fact (this appointment to be irrevocable and a power coupled with an interest) to act on Client’s behalf and to execute such documents.  Client will not contest the validity of Provider’s rights in Provider Work.  All such Provider Work will be deemed to be the confidential, proprietary and trade secret information of Provider.
 
6.4 License to Provider Works
Provider hereby grants Client a limited, non-exclusive, revocable, royalty-free license to use any Provider Works for Client’s internal business purposes only during the term of this MSA.
 
6.5 General Skills and Knowledge
Subject to Provider’s obligations under this MSA, Provider may utilize any skills, feedback, suggestions, knowledge or ideas of a general nature acquired during the course of providing the Services, and may independently develop the same or similar deliverables for other clients based on skills, feedback, suggestions,  knowledge or ideas of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in a similar work performed for another client of Provider.
 
7. PROVIDER-SUPPLIED EQUIPMENT
“Equipment” means any Software (as defined in Section 8), computer equipment, racking, or associated hardware or other equipment (if any) provided by Provider on a rental basis and used at Client’s location to facilitate the delivery of Services to Client.
 
Provider is and will remain the sole owner of any and all Equipment, and this MSA transfers to Client no Equipment ownership rights of any kind.
 
Provider has and will retain sole discretion to determine the appropriate Equipment and associated software, if any, to be used at Client’s location, provided that Provider’s determination does not materially impair the availability or delivery of Services under this MSA. Provider also has and will retain sole discretion to determine the necessity of maintenance, repairs and/or improvement of the Equipment.
 
Provider makes no independent representations or warranties with respect to the Equipment. Any third party warranties are the exclusive remedies of Client with respect to such Equipment. In the event of an Equipment malfunction, Provider will take commercially reasonable steps to ensure that Client receives the benefit of any manufacturer warranties applicable to the Equipment in use at Client’s location.
 
Client shall take reasonable care of the Equipment and shall not damage it, tamper with it, move or remove it, attempt to repair it, or attempt to install any software on it. Client is responsible for all damage to or loss of the Equipment used at Client’s location, other than loss or damage caused by Provider’s employees or contractors. In addition, Client shall obtain and maintain insurance with a reputable insurer for the full replacement value of the Equipment. Such policy or policies of insurance must (i) cover the Equipment against loss or damage (including, without limitation, accidental loss or damage); (ii) must name Provider as an insured beneficiary with respect to the Equipment; and (iii) contain a waiver of subrogation against Provider. Upon demand by Provider, Client shall produce evidence to Provider that such insurance is being maintained and is valid.
 
Client is responsible for providing the necessary power, network connection and appropriate environment to support the Equipment.
 
Client shall not remove any sign, label or other marking on the Equipment identifying Provider as the owner of the Equipment. Client does not acquire and will not acquire any rights of ownership in the Equipment by virtue of this MSA, and Client does not have, shall not place, and will not have, by operation of law or otherwise, any lien or other similar right over or in relation to the Equipment or any equipment at Provider’s data centers.
 
On termination of any Service Attachment pursuant to which Provider delivers Equipment to Client, Client shall allow Provider and its employees and contractors reasonable access to Client’s premises to remove the Equipment.
 
8. PROVIDER-SUPPLIED SOFTWARE
“Software” means all and any software installed on the Equipment or provided by Provider to Client for installation on Client’s computer equipment.
 
In addition to the limitations set forth in Section 6, this MSA 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.
 
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 of part thereof 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.
 
9. NON-DISCLOSURE AND CONFIDENTIALITY
 
9.1 Confidential Information
Each party acknowledges that it and its employees or agents may be exposed to or acquire information that is proprietary or confidential to the other party.  Each party shall hold such information in strict confidence and shall not disclose any such information to any third party. Such “Confidential Information” includes: (a) any technical information, design, process, procedure, formula, or improvement, as well as any formulae, specifications, designs, business or work processes and procedures, instructions, and other data relating to the development, production of any work done specifically for the Client; and (b) any business plans and financial information, regardless of whether such information would be protected under the common law.
 
9.2 Non-Confidential Information
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 by law, provided that the party that owns such confidential information has an opportunity to seek a protective order or equivalent, or obtain written assurance from the applicable judicial or governmental entity that it will afford the confidential information the highest level of protection afforded under applicable law or regulation.
 
9.3 Confidential Agreement
No copy of this MSA, any related Service Attachments, discussions, negotiations, terms or conditions relating to the MSA, or any other information relating to this MSA may be disclosed to any third party, except by reason of legal, accounting or regulatory requirements, without the prior written consent of the parties hereto.
 
9.4 Press Releases
Notwithstanding the preceding provisions, Provider may publicly refer to Client, orally and in writing, as a client of Provider, and may provide the publicly releasable titles of any Service Attachments. Client hereby grants Provider a non-exclusive license, during the Term of this MSA and any related Service Attachments, to use and display Client’s business name, logo or other trademark for the limited purpose of making such public references to Client.
 
Any other reference to Client by Provider or any reference to Provider by Client may be made only in accordance with this Section 9.4. The parties shall consult with each other in preparing any press release, public announcement, case study or other form of release of information concerning this MSA or the transactions contemplated hereby that is intended to provide such information to the news media or the public (a “Press Release”). Neither party may issue or cause the publication of any such Press Release without the prior written consent of the other party. However, nothing herein prohibits either party from issuing or causing publication of any such Press Release to the extent that such action is required by applicable law or the rules of any national stock exchange applicable to such party or its affiliates, in which case the party wishing to make such disclosure will, if practicable under the circumstances, notify the other party of the proposed time of issuance of such Press Release and shall consult with and allow the other party reasonable time to comment on such Press Release in advance of its issuance.
 
10. CLIENT COVENANTS AND OBLIGATIONS
 
10.1 Software Licensing and Support
Client represents that it has title to or license or rights to use or modify and has license or rights to permit Provider to use, access or modify any software that Client has requested Provider use, access or modify as part of the Services. Provider may refuse to access, use, modify, install or otherwise support any software products for which Client is unable to produce commercially acceptable proof of proper and sufficient licensing. Provider further may refuse to support any software products that are not covered under an active manufacturer support/maintenance agreement.
 
10.2 Provider Access
Client shall supply Provider necessary access to its personnel, appropriate documentation and records and facilities in order for Provider to timely perform the Services.
 
11. CLIENT REPRESENTATIONS
 
Client represents and warrants (i) Client has all necessary right, power and authority and has taken all necessary action to enter into this MSA and any related Service Attachments; (ii) the execution and performance of this MSA and any related Service Attachments by Client will not violate or conflict with the rights or any third party or with any service, employment, confidentiality, consulting or other agreement to which Company or its employees is a party or by which Client or its employees may be bound;  (iii)  Client and Client’s employees will comply with all local, state and federal laws, ordinances, regulations and orders; and (iv) Client and Client’s employees shall not infringe upon any third party intellectual property rights. 
 
12. PROVIDER REPRESENTATIONS
 
12.1 Service Warranty
Provider warrants that the Services will be performed in a professional and workmanlike manner and that they will be in conformance with the requirements of any applicable Service Attachment. 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.
 
12.2 DISCLAIMER OF WARRANTY
EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE, ALL EQUIPMENT AND SERVICES ARE PROVIDED “AS IS” AND PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
 
13 NO HIRING
Throughout the term of this MSA and any related Service Attachments and for a period of eighteen (18) months after the termination or expiration of this MSA and any related Service Attachments, Client and Provider shall not employ, solicit or offer employment, either directly or indirectly (including without limitation, through the use of any third party or as a contractor) to any employee of the other, without the prior written consent of the other.  Both parties acknowledge 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 either party violates this provision, that party shall pay to the other an amount equal to 150% of the affected employee’s total annual compensation as liquidated damages. The amount of such liquidated damages 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.
 
However, should Client intend to solicit any of Provider’s employees, Client shall notify Provider in writing in an effort to obtain Provider’s approval or denial of such a request.  Should Provider approve the request to solicit one of its employees, and should Provider’s employee accept any offer by Client, Client agrees to pay 30% of the affected employee’s total annual compensation, as determined by Provider’s accountants, before Client retains the affected employee’s services.
 
14 DISPUTE RESOLUTION
 
14.1 Period for Bringing Claim
No claims to be resolved 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 such six (6) month period shall forever bar the claim.
 
14.2 Continued Service
Unless Provider is bringing an action for failure to make payments by Client for Services not otherwise in dispute, Provider shall continue to provide Services under this MSA, and Client shall continue to make payments to Provider, in accordance with this MSA, during the period in which the parties seek resolution of the dispute.
 
15 INDEMNIFICATION
 
15.1 By Client
Client agrees to defend, hold harmless, and indemnify Provider, and/or its subsidiaries and affiliates and their respective directors, officers, employees, agents, and assigns shall defend, indemnify from and against any and all claims, suits, actions, demands, and proceedings of any kind threatened, asserted or filed against Provider and/or its subsidiaries and affiliates and their respective directors, officers, employees, agents, by any third party, and any damages, losses, expenses, liabilities or costs of any kind, (including but not limited to reasonable attorneys’ fees, witness fees and court costs) incurred in connection with, arising out of or relating to:
  • Provider’s use, access or modifications of any software that Client has requested Provider use, access or modify as part of the Services infringes any patent, copyright, trademark, trade secret or other intellectual property right, 
  • Client’s use of any Services in violation of any provisions of, or Client representations in, this agreement under which Provider provides such Services to Client violates any law or infringes any patent, copyright, trademark, trade secret or other intellectual property right,
  • Client’s breach of Sections 5, 6, 7, 8, 9, 10, 11 and 13, and/or
  • Client’s acts or omissions.  
 
Client further shall pay any judgments or settlements based on any such claims.  Provider will have the right to approve the counsel selected by Client for defense of any such claims.  Provider will provide Client reasonably prompt written notice of any such claims and provide Client with reasonable information and assistance, at Client’s expense, to help Client to defend any such claims.  Client will not have any right, without Provider’s written consent, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability, infringement or wrongdoing (whether in contract, tort or otherwise) on the part of Provider and/or its subsidiaries and affiliates and their respective directors, officers, employees, agents, or otherwise requires Provider and/or its subsidiaries and affiliates and their respective directors, officers, employees, agents,  or its Affiliates to take or refrain from taking any action.
 
15.2 By Provider
Provider agrees to defend, hold harmless, and indemnify Client, and/or its subsidiaries and affiliates and their respective directors, officers, employees, agents, and assigns shall defend, indemnify from and against any and all claims, suits, actions, demands, and proceedings of any kind threatened, asserted or filed against Client and/or its subsidiaries and affiliates and their respective directors, officers, employees, agents, by any third party, and any damages, losses, expenses, liabilities or costs of any kind, (including but not limited to reasonable attorneys’ fees, witness fees and court costs) incurred in connection with, arising out of or relating to any of the Services or deliverables owned and provided by Provider infringe any US patent, US copyright, US trademark, trade secret or other US intellectual property right.  Provider shall pay any judgments or settlements based on any such claims.  Client will provide Provider reasonably prompt written notice of any such claims and provide Provider with reasonable information and assistance, at Provider’s expense, to help Provider to defend any such claims.  
 
16. LIMITATION OF LIABILITY
EXCEPT FOR CLIENT”S INDEMNIFICATION OBLIGATIONS AND CLIENT’S BREACH OF SECTIONS 5, 6, 7, 8, 9, 10, 11 and 13, EACH PARTY’S LIABILITY UNDER THIS MSA AND ANY RELATED SERVICE ATTACHMENTS IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY THE OTHER PARTY AND IS FURTHER LIMITED TO THE AMOUNT PAID FOR SERVICES UNDER THE SERVICE ATTACHMENT THAT IS MOST CLOSELY ASSOCIATED WITH SUCH LIABILITY. 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, AND LOSS FROM INTERRUPTION OF BUSINESS, EVEN IF PREVIOUSLY ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT OR OTHERWISE.
 
17. INSURANCE
For the term of the MSA and any related Service Attachments, and for a period of two years thereafter, Provider and Client shall maintain reasonable insurance coverage through their respective carriers to fulfill their respective obligations set forth in this MSA and related Service Attachments. Such insurance must include, at a minimum, general liability, error and omissions, umbrella policy, and workers compensation coverage.
 
18. GENERAL
 
18.1 Notices
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
 
18.2 Force Majeure
Neither party is liable for any delay or failure in performance due to any cause that is beyond such party’s reasonable control and for which it is without fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts affecting facilities other than facilities of a kind commonly protected by redundant power systems, unless such redundant power systems are also affected by any Force Majeure condition, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation common carriers (the “Affected Performance”). Upon the occurrence of a condition described, the party whose performance is affected shall give written notice to the other party describing the Affected Performance, and 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 this MSA pertaining to the Affected Performance. If the parties are unable to agree upon an equitable modification within fifteen (15) days after such thirty (30) day period has expired, then either party may serve thirty (30) days’ written notice of termination on the other party with respect only to the Affected Performance. If the force majeure event for the Affected Performance is continuing upon the expiration of such thirty (30) day notice period, only the portion of this Agreement relating to the Affected Performance will terminate. 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.
 
18.3 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.
 
18.4 Assignment
Client may not assign this MSA or any of its rights or obligations hereunder without the prior written consent of Provider. This MSA is binding upon any and all successors and permitted assigns.
 
18.5 Survival
The duties and obligations of the parties 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 MSA.
 
 
18.7 Governing Law
This MSA is to be governed by and construed in accordance with the laws of the State of Texas. Jurisdiction and venue for any action arising under this Agreement is exclusively in the state or federal courts located in Dallas County, Texas. The parties waive any other choice of venue.  Any action arising under this Agreement must be brought within six (6) months after the date by which the fault or failure should reasonably have been discovered.
 
18.8 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.
 
18.9 Entire Agreement
This MSA and the Service Attachments set forth the entire understanding of the parties with respect to the subject matter hereof and is binding upon both parties in accordance with its terms.  There are no understandings, representations or agreements other than those set forth herein and in the Service Attachments. Each party, along with its respective legal counsel, has had the opportunity to review and modify this MSA.  Accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of, or against either party.