SECTION 1 – GENERAL INFORMATION
1.1 THIS MASTER SERVICE AGREEMENT (the “Agreement”), is by and between Chair 6 Data, a trade name of Covered Bridge Data, LLC dba Chair 6 Data. (“Chair 6 Data”), and the party which is signatory hereto (“You” or “Customer”), (jointly referred hereto as the “Parties”). BY SIGNING THE DOCUMENT VIA FAX, MAIL, OR ELECTRONIC MEANS YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE COMPANY, INDIVIDUAL, OR OTHER ENTITY WISHING TO USE THE SERVICE PURSUANT TO THIS AGREEMENT.
1.2 Services. Any services or products offered by Chair 6 Data may be further outlined in additional attachments or orders agreed to (“Service Order”), or company policies referenced herein (“Policy”). Any and all Service Orders and Policies shall be incorporated herein by reference, and subject to this Agreement. The Service Order or Policy may provide the following information regarding the service or additional information as applicable:
- A Detailed Description of the Service Offered
- Service Specific Definitions
- Standard Service Features
- Optional Service Features
- Fee Structure for Standard and Optional Features
- Surcharges and Governmental Fees
- Service Level Agreement (“SLA”)
- Chair 6 Data Support Information
- Coverage Maps (or reference website)
- Any Additional Information Pertaining to the Service
- Applicable Policies and Procedures
1.3 All clauses and sections within this Agreement are subject to any and all applicable federal and state law.
1.4 Any notices, requests, or other modifications or changes to any agreement, or Service Order must be submitted by an “Authorized Individual” as defined in Section 2.6.
SECTION 2 – DELIVERY OF SERVICES
2.1 Required Service Level Performance. Chair 6 Data shall provide to You specific product and service descriptions, performance objectives and penalties in an SLA, or a section of the Service Order(s) and/or Amendments.
2.2 Service Specific Terms and Conditions. Any terms and conditions that are specific to a Service will be addressed in the Service Order. If the Service Order stipulates specific hardware or software which is no longer available, a more current product with equal or better specifications will be substituted.
2.3 Locations and Access. Chair 6 Data guarantees You, the customer, the best possible service we can provide, and therefore, may need to make changes as to how and where various Services are distributed from. Therefore, unless otherwise specified in a Service Order, specific locations and access to the preceding may be altered, changed, or otherwise modified in Chair 6 Data’s sole discretion. Such modification shall not, in the best judgment of Chair 6 Data, adversely affect Your Service. Chair 6 Data shall give 30 days notice to any changes to location or access.
2.4 Service Level Guarantee and Credits. Chair 6 Data will issue You credit allowances for service outages as set forth in the SLA. Any applicable credits will appear on Your next invoice. A service outage begins when You contact Chair 6 Data to report the problem, and a ticket is opened. The service outage ends when Chair 6 Data notifies You via telephone, email, or in the original ticket that the service is fully operational. The duration of the service outage will be calculated as the elapsed time between the time the ticket is opened and notification is sent to You. If five (5) or more service outages determined by Chair 6 Data to be guaranteed by the SLA for a particular service occur within a ninety (90) day period, and the cause is determined to be Chair 6 Data’s responsibility, such service will be deemed a “Chronic Trouble Service,” if such term is defined in the applicable SLA and will be cause for early termination with no liability to either party.
2.5 Orders for Service, Cancellation or Modification. All new Service Orders must be submitted on the designated form provided by Chair 6 Data in writing, via email, fax, or regular mail. Any cancellations or modifications to any Service Order(s) must be made in writing to Chair 6 Data, via regular mail, email, fax, or opening a ticket through the Chair 6 Data Customer Portal. You agree that only the individuals listed on the account as “Authorized Individuals,” as defined in Section 2.6, and Chair 6 Data have authority regarding ordering, modifying, and terminating Services.
2.6 Authorized Individuals. Chair 6 Data requires You to appoint or select individuals who are authorized to make any changes to Your account (“Authorized Individuals”), including submitting Service Order(s), Cancelling Service Order(s), and modifications to any Service Order(s). In order for an individual to be approved as authorized, You must either 1. identify the individual and their contact information at the time of establishing an account with Chair 6 Data; or 2. Submit two (2) documents for account and identity verification along with the individual’s name and contact information. Chair 6 Data reserves the right to require more documentation for verification purposes. Chair 6 Data asks that You authorize a minimum of two (2) individuals, upon opening up an account with Chair 6 Data. If there are not two (2) individuals available, You must indicate this in writing. The first person indicated as an Authorized Individual shall be considered the primary contact by Chair 6 Data unless You indicate otherwise.
If at any time, You do not have an authorized individual listed with Your account, no modifications to the account may be made, and the account may be suspended by Chair 6 Data. No changes, modifications, or cancellations will be accepted or approved by Chair 6 Data from an individual who is not an Authorized Individual. In the absence of an Authorized Individual, You will continue to be billed for all Services provided.
2.7 Authorized Contacts. You may appoint a maximum of ten (10) individuals to be Authorized Contacts for Your account with Chair 6 Data. Authorized Contacts are authorized to correspond and communicate with Chair 6 Data only in relation to technical support provided by Chair 6 Data. Authorized Contacts may not modify Service Orders, submit new Service Orders, or cancel Service Orders. Your customers or clients may not be an Authorized Contact. Authorized Contacts are limited to Your employees or affiliates, or individuals responsible for maintenance and operation of Your use of Chair 6 Data Services. Authorized Individuals are also considered Authorized Contacts, and any additional Authorized Contacts must be submitted and approved by an Authorized Individual.
2.8 Acceptance by You. Unless otherwise stipulated in a Service Order, Chair 6 Data shall make available the Deliverables within thirty (30) days of the Execution Date. Material conformity with the description of services and its specifications, as stipulated in the Service Order, is the sole basis for determining Your Acceptance or rejection of the Deliverables. If You do not believe the Deliverables are within the specifications of the Service Order, You must, within two (2) business days of receipt of each Deliverable, notify Chair 6 Data in writing with reasonable detail of Your rejection of the Deliverable. If Chair 6 Data does not receive notice from You, the Deliverables will be considered acceptable and accepted by You. Chair 6 Data will, upon receipt of notice of rejection and written authorization from You, within the above stated time period, promptly correct any deficiencies identified in writing by You. If a deficiency cannot be corrected to be in compliance with the Service Order within thirty (30) days of notification by You, Chair 6 Data, in Chair 6 Data’s sole discretion, may credit Your account for services equal to or less than the amounts paid to Chair 6 Data or delay the Start Date to the date of Your Acceptance of the Deliverables.
2.9 Acceptance by Chair 6 Data. Upon submission by You of this Agreement, any new requests for Service Orders, Modifications, or Cancellations to Service Orders (“Submission(s)”) received in writing by Chair 6 Data must be accepted in writing by Chair 6 Data, either via regular mail, email, fax or through the Chair 6 Data Customer Portal. Requests for a new Service Order may be deemed accepted upon Chair 6 Data providing the requested Service. Except as otherwise stated in this Agreement, if Chair 6 Data does not expressly give its acceptance of the Submission(s) in writing the Submissions shall be deemed not accepted, and Chair 6 Data shall not be bound by such.
2.10 Maintenance and Ongoing Services. Chair 6 Data shall support any and all hardware (physical or virtual) and software provided by Chair 6 Data, as stipulated in the Service Order, which is necessary for You to fully access and utilize the Services in accordance with any applicable SLA. Chair 6 Data shall 1. deliver or provide access to You the described Services, with the functionality and appearance specified at the time of order, and as described in any applicable Service Order or description. If the hardware, software, or other items specified in the Service Order are no longer available or supported by Chair 6 Data, Chair 6 Data will provide a substitute which is equal to or better than that which is listed, and 2. provide technical support for equipment and services described in the applicable Service Order and respond to Your inquiries on a reasonably prompt basis via regular mail, email, telephone, or the Chair 6 Data Customer Portal. If at any time You make any changes to Chair 6 Data supplied content, code, software, or hardware, or Chair 6 Data is denied access to the hardware, software, or related, Chair 6 Data shall not be responsible for any maintenance, regardless of whether such changes were authorized, inspected, or confirmed by Chair 6 Data.
2.11 Professional Services. Chair 6 Data may, although under no obligation to, assist You, by providing services or technical support, in repairing or remedying any problems in Your Services that are not covered by an applicable SLA or active Service Order, at the standard rates charged by Chair 6 Data for such work. Chair 6 Data makes no guarantee of work performed for maintenance and additional support services. All professional services and work is provided on an “As Is” “As Available” basis.
2.12 You acknowledge that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the Chair 6 Data Equipment. If Chair 6 Data has agreed to provide updates and changes, Chair 6 Data may perform such updates and changes remotely or on-site, at Chair 6 Data’s sole option. You agree and consent to provide Chair 6 Data free access for such updates deemed reasonably necessary by Chair 6 Data. If for any reason, Chair 6 Data does not have access to the Chair 6 Data Equipment, including that You do not provide Chair 6 Data with access, Chair 6 Data shall not be liable for any and all maintenance, upgrades, or changes. If You deny access for any reason to Chair 6 Data equipment, and Chair 6 Data, in Chair 6 Data’s sole discretion, requires access to provide contracted Services, maintenance or upgrades, Chair 6 Data may, in Chair 6 Data’s sole discretion, suspend or terminate Your Services, which termination shall be deemed “For Cause,” or take any actions as provided herein.
SECTION 3 – TERMS AND TERMINATION
3.1 Term. The term of this Agreement shall be for the period of one month, unless another term is specified in an applicable Service Order (“Term”).
3.2 Agreement – Renewal. Absent issuance of thirty (30) day written notice otherwise, this Agreement shall automatically renew for the entire term as listed in Section 3.1, or Chair 6 Data may elect a shorter renewal term length of Chair 6 Data’s choosing, by notifying You in writing. Chair 6 Data may increase fees and charges associated with any applicable Service Order(s) at the time of Renewal.
3.3 Termination of the Agreement or Service Order. Neither party may terminate this Agreement or Service Order without cause, as defined in Section 3.8, prior to the expiration of the Term unless otherwise stated in this Agreement.
3.4 Poor Standing – If at any time You 1. fail to pay Your account charges within seven (7) days of the specified invoice due date; 2. deny access to Chair 6 Data equipment; or 3. act in a manner which is inconsistent with this agreement or any Policies, Your account may, in Chair 6 Data’s sole discretion, be given Poor Standing status. Your account will remain in Poor Standing for a minimum of three (3) months from the last occurrence of 1, 2, or 3. listed above in this Section, or until notified of an account status change by Chair 6 Data. If Your account is considered in Poor Standing, Chair 6 Data may, in Chair 6 Data’s sole discretion, 1. suspend Your account until any outstanding issues have been resolved; 2. suspend any Services provided to You; 3. require a deposit or larger prepayment amount for future services for the remainder of the Term; 4. charge additional administrative, late, or other fees and penalties; 5. hold Your equipment as collateral for non-payment; or 6. take any actions necessary to prevent You from impeding, affecting, harming or otherwise disrupting Chair 6 Data’s provision of Services to other customers, including terminate Your Service Order(s) or this Agreement in accordance with Section 3.8. In addition, Chair 6 Data, may assess a late payment fee, and charge interest at the rate of 1.5% for each month payment is overdue (or the maximum legal amount if less than 1.5%). You shall be liable for all attorneys’ fees in relation to a collection action for unpaid fees and charges.
Chair 6 Data reserves the right to terminate the Agreement or any affected Service Addendum upon notice to You in the event that (i) Chair 6 Data cannot maintain, despite reasonable efforts to do so, its regulatory approval necessary to provide the Service(s) and/or enter into this Agreement; and (ii) Chair 6 Data’s underlying vendor is unable or unwilling to provide some or all of the Service(s) required for Chair 6 Data to continue this Agreement. Chair 6 Data shall give You immediate notice of such knowledge and will exercise reasonable efforts to give at least 30 days to transition services.
Any other termination, unless expressly stated herein, shall be deemed “without cause.”
3.6 Termination by Default. If You materially default in the performance of any of Your duties or obligations under this Agreement or applicable Service Order(s), and You do not cure the default within thirty (30) days after written notice is given to You specifying the default, Chair 6 Data may without further notice terminate this Agreement and/or any applicable Service Order(s). You will remain liable for charges accrued but unpaid as of the termination date, and in the case of termination for cause, any liquidation damages outlined in the Agreement or Service Order(s).
3.7 Termination for Convenience. You may terminate a Service Order for convenience at any time upon serving thirty (30) days advance written notice to Chair 6 Data. You will remain liable for charges accrued but unpaid as of the termination date, and in the case of termination for cause, any liquidation damages outlined in the Agreement or Service Order(s).
3.8 Liquidation Damages. You shall pay Chair 6 Data a termination charge equal to the sum of:
(i) all unpaid amounts for Services provided through the date of termination;
(ii) any third party cancellation/termination charges related to the installation and/or termination of Service;
(iii) the non-recurring charges (including any charges that may have been waived at the time of Your order) for the cancelled Service, if not already paid; and
(iv) an amount equal to (a) 100% of the remaining non-promotion monthly recurring charges that would have been incurred for Services for months 1 through 12, plus (b) 50% of the remaining non-promotion monthly recurring charges that would have been incurred for the Services for months 13 through the end of the Service Term.
You acknowledge that the cancellation or termination charges set forth in this Section 12.3 are not a penalty but are in the nature of liquidated damages.
3.9 Obligations Upon Termination. Upon termination or expiration of this Agreement or any particular Service(s) or Service Order(s):
(1) You, at Your own expense, will return to Chair 6 Data or otherwise dispose of as Chair 6 Data may instruct, any information (including any Confidential Information) and all other documents, papers and information whatsoever in Your possession and relating to the business of Chair 6 Data (other than correspondence between the parties) and all property of Chair 6 Data. Chair 6 Data shall be entitled to retain a copy of any information from You for archival purposes only. Such records will not be treated as the owner’s Confidential Information in accordance with Section 8.
(2) Chair 6 Data Obligations. Upon termination or expiration of this Agreement, or Service Order(s) or portion thereof, Chair 6 Data, in addition to any other obligations of Chair 6 Data on termination or expiration; 1. will cease all performance of the terminated Service Order(s); 2. may, at the sole discretion of Chair 6 Data, maintain or hold back-up versions of Your content, code, materials, or information (“Your Content”) for ten (10) days; and 3. within a reasonable period of time provide a final accounting and invoice which itemizes all Services related to the terminated Services that have been performed in accordance with this Agreement but for which Chair 6 Data has not yet received payment.
(3) Payments. All payments described under this Section 3 that have accrued prior to the termination or expiration of the Agreement will be payable in full within fifteen (15) days thereof.
(4) Transition Period. No transition period is generally provided by Chair 6 Data. If You provide Chair 6 Data with a written request at least ten (10) days before the date of the termination of the Service Order(s) or this Agreement, Chair 6 Data may, in Chair 6 Data’s sole discretion, for a period not to exceed ninety (90) days following termination or expiration (the “Transition Period”), provide You with reasonable assistance in the transition of the responsibility for the Services to You or to a party designated by You. Such assistance may consist of the following: 1. reasonable documentation and other materials relating to or used in the performance of the Services (excluding documentation belonging exclusively to Chair 6 Data in which Chair 6 Data claims in good faith a trade secret interest or other protected intellectual property rights), 2. other services or activities reasonably requested by You related to the smooth transition for performance of the Services which may be billed by Chair 6 Data in accordance with all Transition Costs.
(5) Transition Costs. Any and all costs associated with the Transition Period shall be Your sole responsibility. Any quantity based Services will be billed in the minimum lowest whole unit, (e.g. month, gigabyte, etc.) and no fractions of a particular service shall be offered. All Transition Costs, including any and all Services provided under the continuation of any terminated or not renewed Service Orders (“Extended Services”), shall be billed at 150% of the then standard rate. You will be responsible for any and all costs incurred by Chair 6 Data during the Transition Period (the “Transition Costs”). Chair 6 Data, in Chair 6 Data’s sole discretion, may request a deposit, from which Transition Costs will be deducted as incurred, before the start of the Transition Period. Any unused deposit monies will be returned to You within ten (10) days of the conclusion of the Transition Period. Transition Costs, in addition to Extended Services, may include 1. storage of data or equipment; 2. time and labor provided by Chair 6 Data, Chair 6 Data Employees, or third parties hired by Chair 6 Data or billed to Chair 6 Data by You; and 3. shipping, storage, or disposal of any equipment owned by You, unless otherwise agreed in writing.
(6) Deserted Material. Unless otherwise agreed in writing, Chair 6 Data shall not be responsible or liable for care, storage, upkeep or other maintenance of any equipment owned by You and left in Chair 6 Data’s possession (“Deserted Material) after fourteen (14) days of the termination of this Agreement, or fourteen (14) days after an applicable Transition Period. At that time, Chair 6 Data, in Chair 6 Data’s sole discretion, may 1. assume ownership of any Deserted Material, 2. dispose of the Deserted Material and charge You for any costs incurred, including shipping, storage, or disposal and 3. act in any manner with respect to the Deserted Material as Chair 6 Data sees fit. Chair 6 Data shall not be liable or responsible for the maintenance or preservation of any content, code, or data left in Chair 6 Data’s possession after the termination of this Agreement or an applicable Transition Period.
3.10 Modifications. Without authorization or agreement by You, Chair 6 Data shall not modify this Agreement, change fees or charges of applicable Service Orders or modify an applicable SLA, unless otherwise expressly stated in this Agreement.
Chair 6 Data may modify any applicable Policies at any time, without authorization or agreement by You, and Chair 6 Data is under no obligation to notify You of such changes. Chair 6 Data recommends that You regularly review all applicable Policies to ensure compliance therewith.
3.11 Conflicting Terms. In the event of a conflict between this Agreement, Service Order(s), and/or any Policy, the conflict shall be resolved by the following order of precedence:
Service Order(s), then> this Agreement, then any Policy
3.12 Regulatory Changes. Chair 6 Data may discontinue, limit or impose additional requirements to the provision of Service(s), including an increase of fees or service charges as required to meet regulatory or other lawfully imposed requirements, upon no less than thirty (30) days written notice to You.
SECTION 4 – CHARGES, FEES, AND PAYMENT
4.1 Charges. Applicable installation charges, monthly recurring charges, or usage charges are listed on the Service Order(s). The installation fees, setup charges, and the first payment, are due in advance of the Start Date. The recurring charge and usage charges will commence on the Start Date. All payments shall be due and payable in U.S. Dollars. Upgrades in services will be prorated. No credit will be issued for unused or canceled services.
4.2 Taxes. To the extent that any sales, use, excise or any similar tax is imposed on Chair 6 Data in connection with this Agreement, such will be Your sole responsibility, and You will pay such taxes (together with any interest and penalties not disputed with the appropriate taxing authority) whether they are imposed at the time Service is rendered or at a later time during the Term. You will pay any taxes, fees, surcharges or assessments, as outlined in the Service Order(s), to the extent You are not exempt from such taxes, surcharges or assessments, and will appear as a separate line item on the invoice. If You claims an exemption for any tax, You must provide Chair 6 Data with a proper tax exemption certificate as authorized by the appropriate taxing authority. You understands that Chair 6 Data may be required to file an annual report with the local taxing authority as well as other governing authorities listing the Your name and mailing address, daytime phone number, description of Equipment and length of time stored or in use.
4.3 Billing and Payment. Chair 6 Data shall provide You with an invoice, detailing the charges to Your account through the Chair 6 Data Customer Portal, and indicating a payment due date (“Due Date”). Payments are to be made by You on or prior to the Due Date. Chair 6 Data recommends that You send payments at least seven (7) days in advance of the due date to ensure smooth delivery of Services, without interruption. Payments under this Agreement will be due prior to the providing of any Services, unless otherwise agreed in writing or as expressly stated herein. The date Chair 6 Data receives the payment will be considered the date payment is made. If payment is not received prior to the providing of Services for the specified time period, the payment will be considered overdue, and subject to any applicable late fees or surcharges. At Chair 6 Data’s option, if a payment is overdue, Your account will be considered in “Poor Standing” and subject to Section 3.4.
4.4 Billing Claims and Disputes. If you would like to dispute Your invoice, because You, in good faith, do not believe the charges are correct, You must pay all undisputed amounts set forth in Chair 6 Data’s invoice by the specified Due Date. You may withhold payment for the disputed amounts provided You submit along with payment of the undisputed amounts and a documented claim for the disputed amount as detailed herein. Any disputes must be submitted within ninety (90) days of the disputed invoice. A good faith dispute requires You to provide a written claim to Chair 6 Data (“Dispute Claim”). Dispute Claims shall be sent to Chair 6 Data via the applicable address and contact information as listed in the Chair 6 Data Dispute Policy. Dispute Claims must identify in detail the basis for the dispute, including 1. the applicable account number; 2. the date of the charges and the applicable invoice; and 3. the specific items being disputed, to permit Chair 6 Data to investigate the merits of the dispute. The parties shall use their best efforts to resolve all disputes within fifteen (15) days of the submission of the dispute to Chair 6 Data. Once the investigation into the disputed charges has been completed, (a) if the billing dispute is resolved in Your favor, Chair 6 Data shall submit applicable credits within one invoice cycle of dispute resolution, or (b) if the billing dispute is resolved in favor of Chair 6 Data, or if You have withheld payment, You shall submit payment to Chair 6 Data within ten (10) days from receiving notification of the dispute resolution. Late payment penalties will apply to overdue or unpaid charges.
4.5 Time and Quantity Measured Services. Any measured services are recorded in whole units (e.g. minutes, months, gigabytes, etc.), with partial units rounded up to the next whole unit. If the computed charge for a time or quantity measured service or for taxes or surcharges includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. Chair 6 Data measures usage in base 10 increments.
4.6 Cost Increases. Chair 6 Data may change or increase recurring or usage charges during the term of the applicable Service Order only if, beyond the control of Chair 6 Data, Chair 6 Data’s costs increase, by providing You with thirty (30) days notice of the change or increase and reasonable documentation of the increase. In the event of such an increase, You have the right to terminate this Agreement and any relevant Service Order(s) without penalty to You by providing Chair 6 Data with thirty (30) days notice of cancellation.
SECTION 5 – INTELLECTUAL PROPERTY
5.1 General Intellectual Property Limitations. Neither party shall use the other party’s proprietary marks in any manner that disparages the other party or its products or services, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party will comply with the other party’s requests as to the use of the other party’s proprietary marks and will avoid any action that diminishes the value of such marks. Either party’s unauthorized use of the other’s proprietary marks is strictly prohibited. This Section does not grant expressly or implicitly, any right or license to use Chair 6 Data’s Intellectual Property.
5.2 Ownership Intellectual Property. Neither party grants any license to the other except as specifically set forth in this Section. Except as is expressly set forth under this Section, both parties expressly reserve all of their right, title and interest in their respective Intellectual Property Rights.
5.3 Promotional Use by You. Subject to the sole discretion and agreement by Chair 6 Data, You may, at Your own expense, refer to Chair 6 Data and the Services Chair 6 Data provides to You in Your promotional materials as long as You limit the reference to You utilizing Chair 6 Data Equipment and Services. You may not disclose any confidential or proprietary information in such reference. In no circumstance are You to refer to You offering or providing Chair 6 Data Services in any of Your promotional material. Chair 6 Data shall have the right to review and approve promotional material referencing Chair 6 Data. Such approval may be withheld by Chair 6 Data for any particular reason. You shall not issue any press releases, advertisements or other public disclosures regarding Your relationship with Chair 6 Data without the prior review and written consent of Chair 6 Data, which consent shall be granted in Chair 6 Data’s sole discretion. You may disclose any necessary information as may be required by applicable law or regulation subject to Chair 6 Data’s prior review and Your agreement to accept reasonable requests from Chair 6 Data on the language provided pursuant to such laws or regulations.
5.4 Promotional Use by Chair 6 Data. You agree that Chair 6 Data may, at its own expense, refer to You and utilize Your logos and marks in promotional materials, press releases, advertisements, and other public disclosures, solely as a reference to representative customers of Chair 6 Data services. You shall have the right to review and approve promotional material. Such approval may be withheld by You for any particular reason. Chair 6 Data shall not issue any press releases, advertisements or other public disclosures regarding Your relationship with Chair 6 Data without the prior review and written consent of Yourself, which consent shall be granted in Your sole discretion. Chair 6 Data may disclose any necessary information as may be required by applicable law or regulation subject to Your prior review and Chair 6 Data agreement to accept reasonable requests from You on the language provided pursuant to such laws or regulations.
5.5 Any work or professional services performed or provided by Chair 6 Data under this Agreement or any applicable Server Order(s) shall not be deemed “Work For Hire,” but Chair 6 Data shall grant a non-exclusive, non-transferable license to You, for the duration of this Agreement, or the related Service Order(s) for all work performed by Chair 6 Data, its employees, affiliates, and third parties commissioned by Chair 6 Data.
SECTION 6 – WARRANTIES AND REPRESENTATIONS
6.1 Warranties. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, Chair 6 Data EQUIPMENT, OR LICENSED SOFTWARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Chair 6 Data DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, EQUIPMENT, OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. ALL SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, SUBJECT TO ANY APPLICABLE SLA.
6.2 Each Party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement and all Service Orders, (iii) it will comply with all applicable state and local laws, statutes, rules and regulations in connection with the provision and use of the Services and (iv) this Agreement and all Service Orders, when executed, are legal, valid and binding obligation of such Party.
6.3 Preservation of Your Data. You acknowledge and agree that, unless stipulated otherwise in a Service Order, 1. You are responsible for developing and maintaining procedures (apart from any applicable Services) to protect Your content, including, without limitation, making appropriate backup copies of Your content as may be necessary for reconstruction of any data, files, informational materials, or electronic messages; 2. Chair 6 Data is not responsible for backup and restoration of Your content or data; and 3. Chair 6 Data’s responsibility is limited to the provided Services and not ensuring the integrity or completeness of any of Your content, data, or code. While Chair 6 Data shall utilize best practices in redundancy, the ultimate responsibility for preservation of Your Data is You.
6.4 If Your Service Order provides for the availability of backup services, Chair 6 Data is responsible for the Services themselves and not for the completeness or integrity of Your content. It is Your responsibility to ensure that any and all backups occur regularly. Chair 6 Data is limited to providing the Services as stipulated in the Service Order. If there are any concerns or malfunctions with any Services, including backups, it is Your responsibility to notify Chair 6 Data, and Chair 6 Data shall not be liable for any damages, without notice being provided to Chair 6 Data. Damages shall be limited as specified herein.
6.5 Unauthorized Access to Data or Use of the Services. Chair 6 Data is not responsible for unauthorized access to Your data or the unauthorized use of the Services. You are responsible for the use of the Services by any affiliate, employee, sub-contractor, or other party granted access by any of Your employees, or any person You have granted access to the Services, and any person who gains access to Your data or the Services as a result of Your failure to use reasonable security precautions, even if such use was not authorized by You.
6.6 By using the Services to publish, transmit or distribute material or content, You 1. warrant that the material or content complies with the provisions of the Agreement, 2. authorize Chair 6 Data, its agents and affiliates to reproduce, publish, distribute, and display Your content soley in accordance with any applicable Service Order and 3. warrant that You have the right to provide authorization. You acknowledge that due to the inherent nature of the Internet and beyond the control of Chair 6 Data, material posted or transmitted using the Services may be copied, republished or distributed by third parties, and You agree to indemnify, defend and hold harmless Chair 6 Data, its agents and affiliates for any harm resulting from such actions. Chair 6 Data shall not resell or otherwise license Your content.
6.7 Monitoring. Chair 6 Data shall have no obligation to monitor postings, content or transmissions made in connection with the Services. Chair 6 Data, without Your prior approval, will not monitor or grant access to any postings, content, or transmissions unless required by law, valid subpoena, or other required legal compliance. Chair 6 Data may use and disclose such monitoring and postings as required.
6.8 Removal of Data. In the event that Chair 6 Data becomes aware of any content, code, scripts, software, or other data provided or transmitted by You or equipment provided or owned by You, which is being used in violation of any applicable law or regulation, including but not limited to the CAN-SPAM Act and the DMCA (“Infringing Material”), Chair 6 Data reserves the right to remove, destroy, or restrict access to the Infringing Material, solely to comply with applicable law. At which time, Chair 6 Data shall notify You of the removal of the Infringing Material and shall promptly provide you with copies of any documentation related to the removal. You agree that You are solely responsible for any and all use of the Services provided by Chair 6 Data, and that Chair 6 Data may deem it necessary to remove all content or terminate any and all Services to You if you fail to follow any and all applicable laws and regulations. You shall hold Chair 6 Data harmless for any and all good faith efforts by Chair 6 Data to comply with any and all laws and regulations.
SECTION 7 – CLAIMS AND DISPUTES
7.1 Dispute Resolution. The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against Chair 6 Data, its agents, employees, successors, assigns, or affiliates (collectively for purposes of this paragraph, “Chair 6 Data”) arising out of or relating to this Agreement, Chair 6 Data’s advertising, or any related purchase (a “Dispute”) through personal negotiation with individuals fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation, as stipulated in the Chair 6 Data Dispute Policy. The existence or results of any negotiation or mediation will be treated as confidential.
7.2 Service Order Disputes. Other than as stipulated in Sections 2 and 4, any dispute arising under a Service Order shall be considered by Chair 6 Data within fifteen (15) days of receipt of a notice from either Party specifying the nature of the dispute. In the event Chair 6 Data is unable to resolve, or does not anticipate resolving, the dispute within such fifteen (15) day period, then the Dispute will be resolved in accordance with Section 7.1.
7.3 Injunction. Notwithstanding the foregoing, Chair 6 Data will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within thirty (30) days of notice of the Dispute to the other party, the parties shall pursue all remedies available in accordance with Chair 6 Data’s Dispute Policy.
7.4 Disputes and Claims Continued Performance. Except where clearly prevented by the issue in dispute, or in relation to any Dispute arising out of Section 4, both Parties agree to continue performing their respective duties, obligations and responsibilities under this Master Services Agreement and any Service Agreement while the dispute is being resolved in accordance with this Section, unless and until such obligations are lawfully terminated or expire in accordance with the provisions hereof.
SECTION 8 – NON DISCLOSURE AND RESTRICTIONS
8.1 Non disclosure. All Confidential Information shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed 1. to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or 2. as otherwise authorized by this Agreement. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
8.2 Exceptions. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information that: 1. is already known to the receiving party without a pre-existing restriction as to disclosure; 2. is or becomes publicly available without fault of the receiving party; 3. is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; 4. is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or 5. is required to be disclosed by law or regulation. If Service Order calls for physical equipment colocation, Chair 6 Data may disclose, only as required, Your contact information and hardware installation location.
8.3 You agree that You will not violate the license attributed to any Licensed software, which license may restrict Your ability to: 1. copy the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of Chair 6 Data; 2. reverse engineer, decompile, or disassemble the Licensed Software; 3. sell, lease, license, or sublicense the Licensed Software; or 4. create, write, or develop any derivative software or any other software program based on the Licensed Software. If You would like to perform any of the above, and You are unsure of the license restrictions of the Licensed Software, carefully review the applicable license and if necessary, please consult an attorney.
SECTION 9 – LIMITATIONS ON LIABILITY
9.1 Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMITYOUR LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY Chair 6 Data OR FOR EARLY TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF Chair 6 Data AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, DELAY IN THE INSTALLATION OF SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR Chair 6 Data EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT
9.2 IN NO EVENT SHALL Chair 6 Data, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: 1. STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; 2. ANY ACT OR OMISSION BY YOU, YOUR USERS OR THIRD PARTIES; 3. INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY YOU OR THIRD PARTIES; OR 4. LOSS OR DESTRUCTION OF ANY OF YOUR EQUIPMENT, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
9.3 Indemnification. Subject to Section 6, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, “Claims”) relating to: 1. any Claim of any third party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, Chair 6 Data Equipment, and Licensed Software; and 2. any Claim of any third party alleging infringement of a U.S. patent or U.S. copyright arising out of or related to this Agreement, the obligations hereunder, and the use of Services, Chair 6 Data Equipment, and Licensed Software.
9.4 The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Section 9 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
9.5 Remedies. Your sole and exclusive remedies under this Agreement and Chair 6 Data’s entire liability related to the Services shall be repair, replacement or crediting of the Services in accordance with the applicable SLA. To the fullest extent permitted by applicable law, the total aggregate liability of Chair 6 Data under this agreement shall be limited to six months of fees paid by You.
9.6 You acknowledge that Chair 6 Data has leased the Premises from the owner (the “Landlord”). You hereby disclaim, release and waive any and all liability, causes of action, damages, claims at law, in equity or as a third party beneficiary against the Landlord in connection with the Premises, including, but not limited to, the utilities serving the Premises and the Landlord’s exercise of rights and remedies under its lease with Chair 6 Data covering the Premises, and You agrees to look solely to Chair 6 Data in all matters concerning such matters in any way involving the Premises.
SECTION 10 – GENERAL PROVISIONS
10.1 Headings. The headings herein are for convenience only and are not intended to have any substantive significance in interpreting this Agreement.
10.2 Export Laws and Regulations. You acknowledge that any products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. You agree that it will not use, distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by Chair 6 Data, You also agree to sign written assurances and other export-related documents as may be required for Chair 6 Data to comply with U.S. export regulations.
10.3 Relationship of Parties. The parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided in this Agreement.
10.4 Non-Exclusivity. This Agreement is non-exclusive. Nothing herein prevents either party from entering into similar agreements with other entities.
10.5 Severability. If any provision hereunder is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the parties’ original intent.
10.6 Survival. The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the party in whose favor they operate.
10.7 No Waiver. Either party’s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.
10.8 Entire Agreement. This Agreement, together with any Service Orders, SLAs, and Policies, and all applicable tariffs incorporated herein by this reference, sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior agreements, promises, representations, understandings and negotiations between the parties. Nothing herein is intended to confer upon any person other than the Parties any rights or remedies hereunder.
10.9 Third Party Beneficiary Rights. The parties do not intend to create in any other individual or entity the status of third party beneficiary, and this Agreement shall not be construed as to create such status. The rights, duties and obligations contained in this Agreement shall operate only between the parties to this Agreement, and shall inure solely to the benefit of the parties to this Agreement. The provisions of this Agreement are intended only to assist the parties in determining and performing their obligations under this Agreement. The parties to this Agreement intend to expressly agree that only the signatory to this Agreement shall have any legal or equitable right to seek to enforce this Agreement, to seek any remedy arising out of a party’s performance or failure to perform any term or condition of this Agreement, or to bring an action for the breach of this Agreement.
10.10 Excusable Delay. Excluding performance in relation to Section 4, Neither party will be liable for any delay in its performance that arises from causes beyond its control and without its negligence or fault, including but not limited to reliance upon third party providers, products, and services. The delayed party will notify the other promptly of any material delay in performance and will specify in writing the proposed revised performance date or dates as soon as practicable after notice of delay. In the event of any such excusable delay, the dates of performance or of delivery affected by the delay will be extended for a period equal to the time lost by reason of the excusable delay. The delayed party must also describe the cause of the delay and what steps it is taking to remove the cause. The delayed party may not rely on a claim of excusable delay to avoid liability for a delay if the delayed party has not taken commercially reasonable steps to mitigate or avoid the delay.
10.11 Assignment. . This Agreement shall be binding on the parties and their respective successors and assigns. Chair 6 Data may assign this Agreement, without the prior written consent of the Customer.
10.12 Governing Law and Prevailing Party. This Agreement shall be governed by and construed under the substantive laws of the State of Texas. Jurisdiction and venue for purposes of any litigation in connection herewith shall be in County of Bell, Belton, Texas. In the event of litigation between the parties to enforce or interpret this Agreement, the prevailing Party in any such action shall be entitled to recover reasonable costs and expenses of suit, including, without limitation, court costs, attorneys’ fees, and discovery costs.
10.13 Force Majeure. Neither party shall be liable to the other party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of-way, unavailability of services or materials upon which the Services rely, or other causes beyond the party’s reasonable control, except that Your obligations to pay for Services provided shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events.
10.14 Solicitation. During the Term of this Agreement and for a period of one (1) year thereafter, neither Party shall directly solicit any employee(s) of the other Party without such Party’s consent.
10.15 Mitigation. Both parties have a duty to mitigate damages.
10.16 Limitation Period. Neither party may institute any action in any form arising out of this Agreement more than two (2) years after the cause of action has arisen, or in the case of nonpayment, more than two (2) years from the date of last payment.
10.17 Signed in counterparts. This Agreement may be signed in counterparts with the same force and effect as if required signatures were contained in a single, original instrument.
10.18 Insurance. During the Term of this Agreement, each Party will maintain, at its own expense, commercial general liability insurance with policy limits of not less than One Million Dollars (US $1,000,000) per occurrence.
10.19 Data Center Access. Fourty-eight (48) hours prior to each visit to the Premise by You or Your Agents, You shall notify the Chair 6 Data of the time and date that it intends to visit the Premise, and You shall reimburse Chair 6 Data for any out-of-pocket costs incurred by it for escort services outside of Chair 6 Data’s regular business hours for the Premises. Chair 6 Data does not guarantee Customer access to the Premise within a prescribed time frame but will use its commercially reasonable efforts to provide You access to the Premise as soon as practicable after receipt of Your request. This section does not apply if You have received a 24/7 access badge from Chair 6 Data for the purpose of unescorted access.
10.20 Notices. Except as otherwise provided in this Agreement, all notices required or permitted to be given hereunder shall be issued by an Authorized Individual, in writing and shall be valid and sufficient if dispatched by a) registered or certified mail, postage prepaid, in any post office in the United States; b) hand delivery; c) overnight courier; d) facsimile transmission; e) customer web portal; f) ticket service; or g) email upon confirmation of receipt.
If to You: Via the email address or postal mailing address provided by You during the order process.
If to Chair 6 Data:
Chair 6 Data
PO Box 48248
Watauga, TX 76148
Execution of Agreement.
This agreement is made and entered into by Chair 6 Data and Customer when