MASTER CUSTOMER AGREEMENT

MASTER CUSTOMER AGREEMENT

THIS MASTER CUSTOMER AGREEMENT (“Agreement”) is executed and effective upon quote signature or issuance of Purchase Order, for the associated service, by the duly authorized representatives.

1.     Definitions.

2.    Cloud Services License.

Subject to Customer’s compliance with this Agreement, MSP hereby grants Customer a non-transferable, nonexclusive, revocable, limited, and restricted license to access and use the Cloud Services for Customer’s own internal business purposes only in a manner pursuant to this Agreement for the Term unless earlier terminated. MSP shall use   commercially reasonable efforts to make the Cloud Services available to Customer in accordance with the service levels attached hereto as Exhibit A during the Term unless earlier terminated. Customer may install and use the Cloud Services on any of Customer’s compatible endpoint devices up to the maximum number of permitted Authorized Users and storage limit per Authorized User set forth in the MSP Services Order Form.

3.     Privacy and Confidentiality.

4.     Customer Information.

5.     Ownership.

The Cloud Services and any authorized copies thereof made by Customer are the intellectual property of and are owned by MSP, its Affiliates and their licensors, and constitute the Confidential Information of MSP. MSP and its Affiliates retain title to and ownership of all right, title and interest in the Cloud Services and the Documentation, including all intellectual property and other proprietary rights therein, subject to the applicable limited licenses expressly granted by MSP to Customer in Section 2. Customer does not have any right, title, or interest in the Cloud Services or the Documentation.

6.     Restrictions and Requirements.

7.     Limited Warranty.

8.     Indemnification.

9.     Limitation of Liability.

EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OBLIGATIONS RELATING TO CONFIDENTIAL INFORMATION UNDER SECTION 3(B), GROSS NEGLIGENCE OR WILFUL MISCONDUCT, AND CUSTOMER’S MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF BUSINESS, GOODWILL, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, OR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF CUSTOMER DATA) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE CLOUD SERVICES, OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUSIONS SET FORTH IN THE PRECEDING SENTENCE, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE CLOUD SERVICES FOR THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

No claim against MSP may be brought more than one year after the facts giving rise to such claim have arisen. The limitations of liability and exclusions of damages in this Section 9 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.

10.   Insurance.

During the Term, MSP shall maintain, at its expense, workers’ compensation insurance as required by applicable law, and commercial general liability insurance, errors and omissions liability insurance, cyber security insurance, and umbrella liability insurance from financially sound insurance companies having coverages and limits of liability that are commercially reasonable and consistent with industry standards.

11.   Suspension

12.   Term and Termination.

13.  Provisions Applicable to Direct Customers.

Additional terms applicable to Customers purchasing directly from MSP are set forth on Exhibit B and are hereby incorporated into this Agreement.

14.   General.

If Customer is domiciled in:Customer is contracting with:The governing law is:The      courts      having exclusivejurisdiction are:
A country in North America or South AmericaMSPMassachusetts     and controlling United                  Statesfederal lawBoston, Massachusetts, U.S.A.

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY. This Agreement shall not be governed by the conflict of law rules of any jurisdiction, the United Nations Convention on Contracts for the International Sale of Goods, or the Uniform Computer Information Transactions Act, the application of which is expressly excluded. If any action is pursued to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs and any other relief to which such party may be entitled.

Exhibit A

Service Level Objective (SLO)

Cloud Services Availability

The Cloud Services will be available 24 hours per day, 7 days per week, excluding any scheduled maintenance as described below.

Category 1 – Scheduled Maintenance.

Category 2 – Unscheduled Maintenance. Unscheduled maintenance may be required to resolve issues that are critical for Customer and/or performance of the Cloud Services. MSP will use its commercially reasonable efforts to notify Customer at least six (6) hours prior to the unscheduled maintenance.

Exhibit B

Additional Terms Applicable to Customers

  1. Definitions.
    • “Indirect Tax” means without limitation, value-added tax, goods and services tax, sales and use and similar transaction taxes, and gross receipts tax, as the case may be.
    • “Taxes” means taxes, levies, duties or similar national, federal, state, provincial, or local governmental assessments of any nature, including Indirect Tax, that are assessable by any jurisdiction under applicable law.
  2. Payment Terms.
    • Fees. Customer shall pay MSP the subscription fees and other amounts for MSP’s products and services ordered by Customer, in the currency specified in the MSP Services Order Form or Quote (collectively, the “Fees”). All payment obligations are non-cancellable, and all Fees paid to MSP are non-refundable except as expressly set forth in this Agreement.
    • Payment Terms. All Fees will be invoiced in advance in accordance with the MSP Services Order Unless otherwise set forth in the MSP Services Order Form, all Fees are due and payable Net 30 days after the date of the applicable invoice. All invoices that are not paid within Net 30 days, and all credit accounts that are delinquent, shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the invoice is not paid, or the account is delinquent.
    • Taxes. With respect to the transactions and payments contemplated in this Agreement, each party shall be solely responsible to pay all Taxes and governmental fees and charges (and, any penalties, interest, and other additions thereto) that each party is liable to pay under applicable law or otherwise under this Agreement. All Fees payable under this Agreement are exclusive of applicable Taxes. If either party has an obligation under applicable law or this Agreement to pay or collect Indirect Tax for which the other party is legally liable or responsible under this section, then the paying or collecting party will invoice the other party for such Indirect Tax, which the invoiced party will pay. The invoice will satisfy requirements under applicable law for a valid tax invoice. Each party will provide the other party with such information as is reasonably required to determine whether there is an obligation to pay or collect Indirect Tax. Neither party shall pay or collect any Indirect Tax from or on behalf of the other party for which, under applicable law, (i) the other party has previously provided to the paying or collecting party a properly completed and valid exemption certificate, or (ii) the parties may otherwise claim an available, valid exemption from such Indirect Tax.
  1. Fees Upon Expiration or Termination. Upon expiration of this Agreement, Customer will pay MSP any unpaid amounts that are owed to MSP for the Term. Upon termination of this Agreement based on Customer’s breach (following any applicable cure period), Customer will pay MSP any unpaid amounts that would have been owed to MSP for the remainder of the then current Term as well as any other amounts owed to MSP under this Agreement, without limiting MSP’s other rights and remedies. Upon termination of this Agreement based on MSP’s breach (following any applicable cure period), MSP will refund Customer any amounts pre-paid under this Agreement for the remaining full calendar month in the then-current Term.
  2. Term of SubscriptionsThe term of each subscription is set forth in the applicable MSP Services Order Form. Except as otherwise specified in an MSP Services Order Form or Quote, any subscription will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter, but in no event less than one year), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Notwithstanding the foregoing, any promotional or one-time priced subscription will not be subject to auto-renewal. The per-unit pricing during any automatic renewal term may be increased by up to 5% from the prior term.
  3. Conflict. In the event of any conflict or inconsistency between the following documents, the order of precedence shall be: (1) the MSP Services Order Form, and (2) this Agreement. The parties agree that any term or condition in Customer’s purchase order is void and of no effect.