The “Parties” to this Master Services Agreement (“MSA”) agree that 1) any ordering document between Customer and MacStadium, Inc., (each, a “Service Order”), 2) Exhibit A – the Service Level Agreement (“SLA”), 3) Exhibit B – the Acceptable Use Policy (“AUP”), or the applicable Service Order, constitute the “Agreement” between Customer and MacStadium, Inc., a Georgia corporation, and our affiliates and subsidiaries (“MacStadium”). Capitalized terms have the definitions set forth herein. Customer accepts and agrees to the terms of this Agreement by 1) following the click-through prompts on MacStadium’s website by clicking ‘I agree to the MSA and Terms of Service’ indicating acceptance, or 2) using the Services. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents and warrants that they have the authority to bind such entity and its affiliates to the terms and conditions herein.
The Parties agree as follows:
a. This MSA, together with all applicable Addendums and Schedules (each as defined hereafter), all of which are incorporated by this reference herein, states the terms and conditions by which Provider delivers and Customer accepts any or all of the services or licenses provided by Provider to Customer (each specific service or license, a “Service”). Specific terms and conditions applicable to each Service ordered by Customer are set out in separate one or more ordering document(s) referencing this MSA (all such additional documents relating to a particular Service, including, without limitation, those identified as “service schedules” or “Service Orders,” collectively, a “Schedule”). The Schedules for the Services initially ordered by Customer may be set out in the appendices to this MSA. The Schedules for any new Service ordered by Customer subsequent to the execution of this MSA will be binding (i) when ordered electronically through the Provider’s web portal including a click-through acceptance of terms or (ii) contained in a Service Order signed by both parties and acknowledged and accepted in writing (including electronically) by Provider. The parties may enter into additional Schedules for additional Services from time to time. The parties may agree to modify any Services set out in any Schedule by executing a Service Order signed by both parties.
b. Reference herein to the “Agreement” shall mean this MSA, all applicable Addendums and Schedules executed pursuant thereto. In the event of a conflict between or among the terms of documents relating to a Service, the following order of priority will govern, except where the specific terms of a document provide otherwise: (i) any Schedule or Service Order, (ii) any Addendum, and (iii) this MSA.
a. Customer shall pay to Provider all fees due for the Services according to the prices and terms listed in the Schedules, together with all reasonable fees or costs for third party products or services Provider procures on behalf of Customer, to the extent approved in advance by Customer in writing. Except as otherwise set forth in a Schedule with respect to a particular Service, the prices listed in a Schedule will remain in effect during the Initial Term indicated in such Schedule. Provider reserves the right to change, upon thirty (30) days’ prior written notice to Customer, any fees it charges Customer (i) for any Service during a Renewal Term; or (ii) based on a change in law, rule or regulation, or similar circumstances that materially increases the costs or other terms of delivery of any Service, and, in each case Customer’s continued use of such Service as of the first day of the Renewal Term or following the notice period, as applicable, shall constitute its acceptance of the changed fee. Alternatively, Customer may terminate such Schedule by providing written notice to Provider within thirty (30) days of receiving notice of the changed fee.
b. All fees and charges are due within thirty (30) days after Customer’s receipt of invoice therefor. All invoices from Provider are delivered via e-mail to an address specified and provided by Customer. Any invoiced charges not received when due will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. In addition to the foregoing and without prejudice to Provider’s other rights and remedies under this Agreement, at law or equity, if Customer is delinquent in its payments, Provider may, at Provider’s sole discretion do any one or more of the following: (i) terminate this Agreement pursuant to its terms; (ii) in whole or in part suspend providing Services (or any of them) to Customer until payment in full has been made to Provider or (iii) require other assurances to secure Customer's payment obligations hereunder.
c. All fees charged by Provider with respect to the Services are exclusive of taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction, all of which the Customer will be responsible for, except for taxes based on Provider’s net income.
d. In the event that Provider is required to produce documents related to this Agreement under a validly issued subpoena or request of a governmental agency or authority, the parties agree that Customer shall reimburse Provider for: (i) the actual hours spent by Provider compiling such documents and responding to such request (which shall be charged at Provider’s then current hourly rates), and (ii) any direct expenses incurred in responding to such subpoena or request. The provisions of this paragraph shall survive any termination of this Agreement. For the avoidance of doubt, this is in addition to Provider’s obligations to comply with Section 7(b) below in connection with any such disclosure.
a. The initial term of this MSA shall begin upon execution by both Customer and Provider and shall remain in effect until every Schedule hereunder has been terminated and each Schedule entered into by the parties shall be effective upon execution by both Customer and Provider and shall continue in full force and effect until its termination (subject to survival of the terms thereof as described in Section 3(e), below).
b. Either party may terminate this Agreement or any Schedule after the Initial or any subsequent Renewal Term, upon ninety (90) written notice to the other party prior to the expiration of a Term (or Provider may, in its sole discretion, suspend the provision of Services under any Schedule) if: (i) the other party commits a material breach of this Agreement and fails to cure such breach within fifteen (15) days after written notice of the same (other than Customer’s failure to pay any amounts when due, which must be cured within ten (10) days after written notice of the same); (ii) the other party becomes the subject of any involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) commits a material breach of this Agreement that is incapable of remedy, including, without limitation Customer’s breach of Section 5(a).
c. Provider may cancel or suspend the provision of any Service, or portion thereof, upon reasonable notice to Customer if the provision of that Service, or any portion thereof, is determined to be a violation of any applicable law or regulation or of any Provider license in any jurisdiction, or is no longer permitted under any of the same.
d. Upon the effective date of termination of any Schedule: (i) Provider will immediately cease providing the Services set forth in such Schedule, and Customer shall immediately cease using such Services; (ii) all licenses granted hereunder with respect to the terminated Services will immediately terminate; and (iii) any and all payment obligations of Customer under such Schedule for Services provided through the date of termination will be due within thirty (30) days of the effective date of termination of such Schedule. If Customer fails to pay such amounts on the date due, then Provider may impose the late fees set forth in Section 2(b). In addition to the foregoing, and except as otherwise set forth in a Schedule, within thirty (30) days of termination of this Agreement as a whole, each party will return or certify the destruction of all Confidential Information (defined hereafter) of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required (an only to the extent necessary) to comply with any applicable legal, archival or accounting recordkeeping requirement; provided, however, that all such retained data shall remain subject to the confidentiality provisions of Section 7 of this MSA.
e. (i) Termination of the MSA shall not serve to terminate any then-effective Schedule, and the terms of this MSA and those of any Addendum or Schedule applicable to the Service(s) shall survive any termination of this MSA or until termination of such Schedule(s); and (ii) termination of any Schedule shall not serve to terminate any other Schedule or the parties’ respective obligations thereunder. The definitions herein and the respective rights and obligations of the parties under Sections 3(d)-(e), 5(b) and 6-9 shall survive any termination or expiration of this Agreement.
a. Customer shall designate a representative (the “Customer Manager”) who shall have overall responsibility for managing and coordinating Customer’s obligations hereunder and who has the authority to act for and bind Customer in connection with the Services. The Customer Manager shall serve as Provider’s initial point of contact for the resolution of issues in connection herewith, must be available to Provider during the Term and have authority to schedule performance of the Services and address any issues that may arise.
b. Customer will provide Provider, in a timely manner, with all data and information reasonably necessary for Provider to perform the Services.
c. Customer shall provide and coordinate, in a timely manner, Provider’s authenticated access to any Customer network or system (the “Customer System”), as necessary. Customer shall inform Provider in writing and in advance of the performance of any Services, of any security and access standards or requirements with respect thereto.
a. Each party warrants and represents that: (i) it has the legal right to enter into this Agreement and perform its obligations hereunder; and (ii) the performance of its obligations hereunder will not violate any applicable U.S. laws or regulations or cause a breach of any agreements with any third parties. In addition, Customer represents and warrants that the performance of its obligations and use of the Services by Customer or its clients will not violate any applicable laws.
b. Provider further represents and warrants that (i) to the best of its knowledge and belief, it owns or otherwise has all necessary rights to provide the Services and the Software to Customer; (ii) the Services and Software do not infringe or violate the copyright, trade secret, trademark or U.S. patent right of any third party; (iii) Provider itself has not knowingly misappropriated or obtained any data provided by Provider as part of and in connection with the Services (collectively, the “Data”) through improper or unauthorized means; and (iv) subject to Customer’s satisfaction of its obligations hereunder, it will perform the Services in a professional and workmanlike manner consistent with standard industry practices, and will use commercially reasonable efforts to prevent the transmission of any Trojan horse, malicious code, or other computer software code, routines or device designed to disable, damage, impair, erase or deactivate any data via the Provider’s networks or systems to the Customer System.
d. Specific warranties with respect to each Service, to the extent given, are set forth in the Schedules applicable thereto. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE APPLICABLE SCHEDULE, THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND PROVIDER AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. PROVIDER DOES NOT WARRANT OR GUARANTEE ANY SPECIFIC RESULTS FROM CUSTOMER’S USE OF THE SERVICES. AS BETWEEN THE PARTIES, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL CUSTOMER DATA PROVIDED BY CUSTOMER IN CONNECTION WITH THE SERVICES.
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA OR PROPERTY ARISING FROM ANY CLAIMS WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, EVEN IF THE OTHER PARTY, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
b. EXCEPT WITH RESPECT TO LIABILITY FOR PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR BREACH OF SECTION 7 HEREOF, OR AS MAY BE OTHERWISE SET FORTH IN A SCHEDULE WITH RESPECT TO A SPECIFIC SERVICE, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO THE OTHER PARTY OR ANY USERS UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT IS GREATER THAN THE TOTAL FEES RECEIVED BY PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR $50,000 USD.
c. THE PARTIES ACKNOWLEDGE THAT PROVIDER HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
d. Neither party shall be liable for and will not be responsible to the other for any delay or failure to perform under this Agreement if such delay or failure results from any act or cause beyond the reasonable control of the affected party. If either party is unable to perform under this Agreement because of the occurrence of an event of force majeure lasting more than thirty (30) days, then the other party may terminate the affected Service(s) and applicable Schedule(s) upon written notice to the other party.
a. Each party acknowledges that it may have access to certain information deemed confidential by the other party, (collectively, “Confidential Information”), which shall expressly include, but not be limited to, Provider Technology (with respect to Provider) and certain Customer Data (with respect to Customer). Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. The obligations of this Section 7 shall last during and for two (2) years after the term of this Agreement.
b. The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
c. In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of Section 7(a), the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate.
d. In the event that Customer discloses personal data to Provider (“Personal Data”), Customer agrees (i) that Provider or its affiliate(s) may process such Personal Data consistent with applicable law and regulation, only for the purpose of the provision of Services by Provider to Customer or for purposes connected with the subject matter of the disclosure or business relationship between the parties; (ii) that such processing may include the transfer of such Personal Data to Provider’s affiliates or its storage in a local database; and (iii) that Customer will, to the extent required by applicable law, obtain all necessary consents to such processing from the data subjects concerned.
e. Neither party will publish or use any advertising, sales promotions, press releases or other publicity that uses the name, logo, trademarks or service marks of the other without the prior written approval of the other, provided that Provider may list Customer as a customer.
f. Provider and its licensors shall retain all right, title, and interest (including copyright and other intellectual property rights or informational rights) in and to the Services and all legally protectable elements or derivative works thereof, including, without limitation, the Provider Technology.
a. In addition to any indemnification obligations set forth in an applicable Schedule, Customer will indemnify, defend and hold Provider, its affiliates and their respective directors, officers, employees, agents, successors and assigns (each a “Provider Indemnitee”) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees and costs) payable to a third party (collectively, “Losses”) and resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against a Provider Indemnitee arising out of Customer’s (i) breach of Section 5 of this MSA; or (ii) negligence or willful misconduct.
b. In addition to any indemnification obligations set forth in an applicable Schedule, Provider will indemnify, defend and hold harmless Customer, its affiliates and their respective directors, officers, employees, agents, successors and assigns (each a “Customer Indemnitee”) from and against any and all Losses resulting from any Action brought by any third party against a Customer Indemnitee arising out of (i) a breach of the warranty set forth in Section 5; or (ii) the gross negligence or willful misconduct of Provider. Notwithstanding the foregoing, Provider shall have no obligation under this Section 8 to the extent such Action is caused by (i) any use of the Services, Software or Data not in accordance with this Agreement; (ii) Customer’s failure to comply with specifications or requirements supplied by Provider (including, without limitation, the Minimum Requirements ); (iii) any breach by Customer of its obligations under this Agreement; (iv) the operation, combination or use of Services, Software or Data, without Provider’s prior written consent, with products or services provided by Customer or third parties; or (v) Customer’s gross negligence, willful misconduct or intentionally wrongful conduct.
c. Each party’s indemnification obligations under this Agreement (including, without limitation, any such obligations set forth in an applicable Schedule) shall be subject to: (i) receiving prompt written notice of the existence of any Action (provided, however, that failure to satisfy this condition shall relieve a party of its indemnification obligations only to the extent the indemnifying party is actually prejudiced thereby); (ii) being able to, at its option and expense, control the defense of such Action (provided, however, that the indemnifying party shall not, without the prior written consent of the indemnified party, settle any Action or otherwise consent to the entry of any order or judgment in any Action if such settlement, order or judgment admits any liability of the indemnified party or requires the indemnified party to take or to refrain from taking any action, other than the payment of damages); (iii) permitting the indemnified party to participate in the defense of any Action, at the indemnified party’s option and expense; and (iv) receiving full cooperation of the indemnified party in the defense thereof. In the event Customer notifies Provider of any Action against Customer, Provider’s indemnification obligations shall be further conditioned on Provider having the option to do one or more of the following: (x) to permit any party obligated to indemnify Provider in such circumstances to defend or settle, at such party’s own expense, such a claim or suit; (y) if applicable or appropriate, to procure a license sufficient to continue offering the Services (including, without limitation, Customer’s use thereof); or (z) to terminate the applicable Service (provided that in the event of terminating the applicable Service, Provider shall continue to remain liable for its indemnification obligations).
Neither this Agreement, nor a party’s obligations or rights hereunder, may be transferred or assigned by either party without the other party’s prior written consent; provided, however, that either party may assign this Agreement in whole, but not in part, without the other party’s consent to (a) any entity controlled by, under common control with, or controlling such party; (b) the successor-in-interest in any merger, share exchange or other reorganization; or (c) the purchaser of all or substantially all of such party’s assets. Any attempted assignment, transfer or other disposition by a party in violation of this provision will be null, void and of no force and effect. This Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto.
During the Term hereof, and for a period of one (1) year thereafter, Provider and Customer hereby covenant and agree not to actively solicit, divert or attempt to hire, any current employee or former employee (who was in the employment of a party within the last year) of the other party. However, “actively solicit, divert, or attempt to hire” shall not be deemed to include general recruitment advertisements or postings addressed to the general public.
MacStadium will maintain sufficient insurance coverage for its assets and operating infrastructure that meets MacStadium’s obligations pursuant to this Agreement’s insurance types and limits and by law, with insurance carriers rated A- or better by A.M. Best Company. At all times during this Agreement, MacStadium will maintain the following coverage and limits:
(a) Commercial general liability and contractual liability coverage insuring the activities of MacStadium for liabilities written on an occurrence basis, with limits of $1,000,000.
(b) Workers’ Compensation with limits no less than the minimum required by applicable law;
(c) Employers’ Liability with limits of $1,000,000.00 per occurrence.
(d) Cyber liability insurance with limits of $5,000,000 in the aggregate.
MacStadium may make reasonable changes to its insurance coverages from time to time and shall notify the Customer, at any time during this Agreement or any renewal, if the above-referenced limits are reduced.
This Agreement constitutes the exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Each Schedule includes terms that are in addition to, and not in lieu of, this MSA. The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation. The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. This Agreement may only be amended in writing by the mutual consent of the parties. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. There shall be no third party beneficiaries to this Agreement. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by facsimile. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party. This Agreement and all obligations of the parties hereunder shall be interpreted, construed, and enforced in accordance with the laws of the State of Georgia, without regard to any conflict of laws rules or analyses. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction in Fulton County, Georgia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Time is of the essence hereof. The Customer accepts and agrees to the terms of this Agreement by 1) following the click-through prompts on MacStadium’s website by clicking ‘I agree to the MSA and Terms of Service’ indicating acceptance, or 2) using the Services.
Last Updated: October 14, 2021
EXHIBIT A: Service Level Agreement
EXHIBIT B: Acceptable Use Policy
Updated about 2 years ago