MASTER SERVICE AGREEMENT
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
- DEFINITIONS. Capitalized terms have the meaning given to them the Schedule A (Definitions) or are defined in
- SERVICES. Liberation Technology offers a range of services, as described in one or more Addenda attached to this MSA and signed by the Parties. To implement such services and tailor them to Customer’s particular requirements, the Parties shall enter into a specific Statement of Work in connection with the applicable Addendum (each an “SOW”). Among other terms, each SOW will (i) describe the specific services to be performed by Liberation Technology (the “Services”); (ii) specify any Deliverables Liberation Technology is to provide in connection with the Services; (iii) set forth the prices and fees for which Customer is responsible; (iv) specify the duration of the applicable Services; and (v) set out the timeline for service activiation. Depending on current availability, Liberation Technology’s Services may include one or more of the following, all as further described in the applicable Addendum (as such may be available):
- “Infrastructure Storage Services,” which provide a storage platform and storage capacity via shared servers and/or virtual machines at one or more Data Centers, with physical, technical, and administrative security for such servers and Data Centers and, where requested, specific Customer Space within the Data Center(s);
- “Private Infrastructure Services,” consisting of Infrastructure Storage Services in an environment dedicated to a single customer;
- “Internet Connection Services,” which provide bandwidth for network access from the LTS Infrastructure to the Internet, via Liberation’s upstream transit Internet service provi ders;
- “Managed Services,” consisting of data backup and recovery services for Customer Data, the Customer Platform, Platform Content, or some combination or all of such items;
- “Support Services,” consisting of helpdesk support for Customer and Remote Hands services with respect to Customer Space and other applicable Services features; and
- “Professional Services,” which Liberation Technology offers in addition to, or as an alternative for its standard services under an Addendum.
3. CUSTOMER PLATFORM AND PLATFORM
CONTENT. Subject to its compliance with the terms and conditions of this Agreement, Customer shall be entitled to use and rely on the Services for the hosting and operation of the Customer Platform.
- Responsibility for Platform Content. Customer shall be solely responsible for Platform Content and Customer Data, and will have full autonomy to manage the Customer Platform, Platform Content, and Customer Data, subject only to the prohibitions set out in Section 3.5 (Prohibitions on Use).
- Zero Trust Architecture and Zero-Knowledge Service Provider. Liberation Technology shall provide the LTS infrastructure in a zero trust In addition, Liberation Technology shall act as a “zero-knowledge” service provider and shall not police, censor, filter, or otherwise restrict access to Platform Content, Customer Data, or the Customer Platform itself, subject only to Section 3.5 (Prohibitions on Use) diligence and enforcement. Customer acknowledges that Liberation Technology’s monitoring of traffic-related and performance- related metrics such as Jitter, Latency, and Packet Loss with respect to the LTS Infrastructure does not alter Liberation Technology’s status as a zero-knowledgeservice provider.
- Responsibility for Customer Platform and Customer Equipment. Customer shall provide and besolely responsible for the installation, maintenance, configuration, connectivity, and all other support and maintenance tasks (including End User support) with respect to the Customer Platform and Customer Equipment, unless otherwise provided in an applicableAddendum.
- Data Access. Customer manages and controls access to Customer’s account (through Customer’s use of access controls) and the use and processing of Customer Data. Liberation Technology will not access Customer Data except as necessary (by authorized personnel) to identify, investigate, or resolve technical problems with the LTS Infrastructure, to deliver Support Services, or to verify Customer’s compliance with the terms of this Agreement.
- Prohibitions on Use. Customer and End Users shall not use the Services (i) to attempt to gain or to gain unauthorized access to or disrupt any Liberation Technology or third party service, device, data, account or network; (ii) to distribute spam or malware; (iii) in a way that materially harms or threatens to materially harm (as determined by Liberation Technology in its discretion) the functionality, performance, or security of the Services or the LTS Infrastructure; or (iv) in a manner that exposes or threatens to expose Liberation Technology to criminal or civil liability.
- No Resale of Services. Customer shall not lease to third parties, or permit third parties to use, Customer Space, and shall not resell or seek to resell any Services to a third party.
- Authorized Users and Access. Customer agrees that its access to the LTS Infrastructure shall only be through its Authorized Users, and that Customer’s license to access and use the Services and LTS Infrastructure may be further limited by applicable Addenda. Where specified in an applicable Addenda, each Authorized User must have a unique username and associated Access credentials for an Authorized User may not be used by anyone other than such Authorized User. Customer shall inform each Authorized User of this Agreement’s terms and restrictions, and shall notify Liberation Technology if Customer becomes aware of an Authorized User’s failure to adhere to this Agreement. Customer shall be (i) responsible for properly configuring access controls concerning Customer’s Authorized Users and for maintaining the security of Authorized Users’ passwords, and (ii) liable for the acts or omissions of its Authorized Users in breach of this Agreement.
4. LIBERATION TECHNOLOGY INFRASTRUCTURE.
- Data Center. Liberation Technology shall provide its Services via Tier III or higher data center
- Service Levels. Service levels and other performance standards for the Services and associated LTS Infrastructure are set out in applicable Addenda.
- Information Security Controls. Liberation Technology (itself and through its service providers) shall maintain, consistent with accepted industry practice, administrative, physical, and technical safeguards reasonably designed to protect all elements of the LTS Infrastructure (and Customer Space, as applicable) that host or support the Customer Platform against accidental, unauthorized, or unlawful access.
- Security Incidents as to LTS Infrastructure. Liberation Technology shall notify Customer of any unauthorized third party access to the LTS Infrastructure (or Customer Space as applicable) as soon as practicable after Liberation Technology becomes aware of such authorized access (and in any event within the time period set by applicable law), and promptly implement an incident response plan consistent with accepted industry practice. Liberation Technology and Customer will coordinate to further investigate the incident. To the extent the security incident, as determined by Liberation Technology, was caused by the Customer Platform, the Customer shall take primary responsibility for the incident; similarly, to the extent the security incident was caused by the LTS Infrastructure, as determined by Liberation Technology, Liberation Technology shall bear primary responsibility for theincident. Each Party shall fully cooperate with the other as reasonably required to comply with applicable Law, and each Party shall take, at its own expense, steps reasonably designed to timely remedy any security breach to the extent it is responsible, and prevent any further security breaches in accordance with applicable Law and this Agreement.
- Security Incidents as to Customer Platform. Liberation Technology does not provide any service to detect or identify a security breach or other security incident with respect to the Customer Platform or Customer Equipment, except as may be specified in an Addendum. Unless otherwise specified in such Addendum, Liberation Technology shall not be liable for any unauthorized access to or use of the Customer Platform, or the alteration, corruption, deletion, destruction or loss of any Customer Data or Platform Content while stored, processed, displayed, or made available via the Customer Platform, except to the extent caused by material defects in the LTS
- Data Integrity. Unless otherwise provided in an Applicable Addendum, Customer is responsible for the adequate backup and restoration of Customer Data and Platform Content. In addition, Customer is responsible for implementing security features for transmissions via the Customer Platform of Platform Content or Customer Data over the Internet or other public Any files that were corrupted, for any reason, when transmitted to the LTS Infrastructure will be restored (if Customer is received applicable Managed Services) in the same condition in which they were transmitted and therefore may not be usable due to such corruption.
- LTS-Provided Equipment. Where specified in an applicable Addendum, Liberation Technology will supply LTS-Provided Equipment to Customer. LTS-Provided Equipment shall remain at all times the property of Liberation Technology and shall not be considered a Customer shall maintain LTS-Provided Equipment in good condition, less normal wear and tear. Liberation Technology shall be responsible for the maintenance and repair of the LTS-Provided Equipment unless it is damaged as a result of the action or inaction of Customer or its representatives, in which case Customer shall reimburse Liberation Technology for the cost of any necessary repairs or replacements. Customer shall provide Liberation Technology reasonable access to LTS-ProvidedEquipment for purposes of repair, maintenance, removal or other applicable tasks.
- PRIVACY. Liberation Technology does not collect or use End Users’ personal To the extent Liberation Technology is exposed to End Users’ personal information in connection with its performance under Section 3.4 (Data Access), Liberation Technology will protect such personal information as Confidential Information of Customer. Liberation Technology collects business contact information from Customer employees (or other Customer representatives) as needed to provide the Services and, to the extent such business contact information constitutes personal information, Liberation Technology shall protect and use such information in accordance with applicable Law.
6. ACCEPTANCE OF DELIVERABLES.
- Acceptance Process. Liberation Technology shall provide the Deliverables specified in an SOW in a form ready for review and testing (as applicable). Upon receipt of a Deliverable, Customer shall promptly examine the Deliverable and, if the Deliverable materially complies with the applicable SOW (the “Acceptance Criteria”), Customer shall notify Liberation Technology of Customer’s acceptance of the Deliverable. If the Deliverable fails to meet Acceptance Criteria, then Customer shall notify Liberation Technology of the non-compliance and identify the portion (or portions) of such Deliverable that fails to meet the Acceptance Criteria. If Customer proceeds with a later stage of the project that depends on the Deliverable at issue without providing Liberation Technology a notice of acceptance or a notice of non-compliance, then the Deliverable will be deemed accepted.
- Cure by Liberation Technology. Upon receipt of a notice of non-compliance under Section 1 (Acceptance Process), Liberation Technology shall cure the identified deviations in a timely manner, at a mutually agreed-upon cost.
- Treatment of Associated Fees and Expenses. If, following the re-submittal of corrected Deliverables or re- performance of the non-compliant Service as set out in Section 6.2 (Cure by Liberation Technology), the Deliverables or Service again fail to comply with Acceptance Criteria, then Liberation Technology shall promptly refund those fees and expenses paid by Customer or waive the remaining fees and expenses with respect to such Deliverable or Service.
7. FEES AND PAYMENT.
- Commencement of Payment Obligations. Customer shall pay Liberation Technology the fees and charges specified on the Applicable Addendum, including any specified monthly recurring charges Unless otherwise provided in such Addendum, fees and charges for Services will accrue commencing on the Start Date.
- Payment Terms. Customer shall be invoiced monthly for all Services with fixed recurring charges invoiced in advance and all other charges invoiced in arrears unless specified otherwise in the applicable Addendum. Customer will pay each invoice in full within thirty (30) days of receipt. Customer will notify Liberation Technology in writing of any invoice dispute within such thirty (30) day period, and shall make timely payment of any undisputed amounts. If Customer does not follow this dispute process, the dispute shall be deemed waived.
- Taxes. Customers shall be responsible for all federal, state, local and foreign taxes, duties, tariffs, levies, surcharges, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes) that apply to the sale or use of Services, as such may change over time, and regardless of whether such charges are identified in the applicable Addendum.
- Ability to Pay, Security Deposit. Upon request by Liberation Technology, Customer shall provide information reasonably requested to determine Customer’s credit worthiness. Liberation Technology may require Customer to submit an initial security deposit, advance payment, or both (collectively, a “Security Deposit”), and to submit an additional Security Deposit if (i) Customer increases Services, (ii) Customer is late on payment, (iii) or Customer’s credit rating changes disadvantageously (each a “Security Deposit Trigger”). Liberation Technology will refund to Customer, by means of a credit against service fees, such Security Deposit in equal installments over the following twelve (12) month period; provided, however, that Liberation Technology shall be entitled to adjust such credits to address any later Security Deposit Trigger or Triggers. To the extend a Security Deposit amount remains upon termination of this Agreement, Liberation Technology will refund such remainder to Customer, except that Liberation Technology at its discretion may apply the remaining Security Deposit to any amount due and unpaid by Customer as of termination, including any unpaid Early Termination Fee.
- Late Payments. Any undisputed payment not received by Liberation Technology within thirty (30) days of the invoice date shall be considered late and will accrue interest at the lesser of a rate of five percent (5%) per month compounded daily, or the highest rate allowed by applicable law.
- Fee Increases. After the first anniversary of the Start Date, Liberation Technology reserves the right to increase fees and charges for Services on thirty (30) days’
8. REPRESENTATIONS AND WARRANTIES.
- Mutual Representations and Warranties. Each Party represents, warrants and covenants that: (i) it has and will maintain the legal right to use, operate and locate its equipment in conjunction with the Services; (ii) the performance of its obligations hereunder will not violate any applicable Laws; (iii) neither the execution of this Agreement nor the performance of its obligations hereunder will constitute a breach by it of any agreements to which it is a party or by which it is bound; (iv) it has duly authorized, executed and delivered this Agreement and this Agreement constitutes a legal and binding obligation of such Party and shall be enforceable against such party in accordance with its terms.
- Liberation Technology Representations and Warranties. Liberation Technology represents and warrants to the Customer (i) that the Services will be performed in accordance with accepted industry practice and by qualified individuals; (ii) that the Services will substantially conform to the applicable Addenda; and (iii) that software components of the LTS Infrastructure will be scan using commercially available virus scanning and removal software in accordance with accepted industrypractice.
- Customer Representations and Warranties. Customer represents and warrants that it owns, or holds sufficient rights to the Customer Platform, Customer Data, and Platform Data necessary to permit the Parties to fulfill their obligations under this Agreement.
- No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8 (Representations and Warranties), THE SERVICES (INCLUDING ANY DELIVERABLES) ARE PROVIDED “AS IS”, CUSTOMER’S USE OF THE SERVICES AND DELIVERABLES IS AT ITS OWN RISK, AND LIBERATION TECHNOLOGY DOES NOT MAKE, AND DISCLAIMS, ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WHETHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, MARKETABILITY, FITNESS FOR A PARTICULAR USE, SUITABILITY, NON-INFRINGEMENT, OR TITLE.
- Each Party agrees to keep in full force and effect during the Term: (i) commercial general liability insurance with a combined single limit in an amount no less than $1,000,000 per occurrence, and $2,000,000aggregate or no less than $3,000,000 “umbrella” coverage,including broad form premises and operations, independent contractors, products and completed operations, personal injury, contractual, and broad form property damage liability coverage: and (ii) workers’ compensation insurance covering such party’s employees in an amount required by Law. Liberation Technology shall maintain all risks (or special form-causes of loss) property insurance covering LTS Infrastructure. Customer shall maintain all risks property insurance covering the Customer Space and Customer Equipment. Customer agrees that it will insure and be solely responsible for insuring the injuries to and claims of its employees and representatives. Customer’s policies in (i) above will name Liberation Technology as an additional insured. Customer’s workers’ compensation policy will include a waiver of subrogation for the benefit of Liberation Technology. All such policies shall be written by insurance carriers rated A or better by A.M. Best. The Parties agree that upon request, they will deliver to each other certificates of insurance naming the other party as a certificate holder. Each Party will cause and ensure that each all-risk property (or special form-causes of loss) insurance policy of such Party required under this Agreement will provide that the underwriters waive all claims and rights of recovery by subrogation against the other Parties in connection with any liability or damage covered by the insurance policies.
- CONFIDENTIALITY. This Section governs the protections for Confidential Information that one Party (the “Disclosing Party”) provides to the other (the “Receiving Party”) under this Agreement.
- Scope. Subject to Section 10.2 (Exceptions), the term “Confidential Information” means information the Disclosing Party provides to, or that the Receiving Party accesses from the Disclosing Party, that meets one of the following two criteria: the Information either (i) is identified by a “CONFIDENTIAL” legend or similar legend of the Disclosing Party, or (ii) is obtained under circumstances such that the Receiving Party knew or reasonably should have known that the Information should be treated as confidential to the Disclosing Subject to Section 10.2 (Exceptions), “Confidential Information” includes non-public inventions, know-how, data, formulas, patterns, devices, methods, software, security configurations, financial and business plans, names of actual or potential customers or suppliers, and Data Center configurations.
- Exceptions. The Parties’ obligations of confidentiality and non-use shall not apply where the Receiving Party shows that the information (that would otherwise qualify as Confidential Information): (i) is or after the Effective Date becomes publicly available or part of the public domain through no wrongful act, fault or negligence on the part of the Receiving Party; (ii) was in the possession of the Receiving Party at the time of the Receiving Party’s receipt of the Confidential Information, and was not otherwise subject to an existing agreement of confidentiality; (iii) is received from a Third Party without restriction and without breach of any obligation of confidentiality to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reliance on the Disclosing Party’s Confidential
- Non-Use and Non-Disclosure. The Receiving Party shall not access, use or disclose any of the Disclosing Party’s Confidential Information except as expressly permitted under this The Receiving Party shall protect the Disclosing Party’s Confidential Information with the same level of care it uses for its own Confidential Information of like nature; provided, however, that the Receiving Party shall at a minimum use reasonable care to protect the Disclosing Party’s Confidential Information. A Receiving Party shall be entitled to disclose the Disclosing Party’s Confidential Information to its employees and service providers for purposes of providing or receiving the services; provided that each recipient (i) has a need to know the Confidential Information for the purposes of this Agreement and (ii) is bound to protect the confidentiality of the Confidential Information under safeguards no less protective that those set out in this Section 10 (Confidentiality). Each Party shall be responsible for any breach of confidentiality by its employees and (where applicable) its service providers.
- Compelled Disclosure. Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, however, that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in protecting against or minimizing such disclosure, or in obtaining a protective order.
11. INTELLECTUAL PROPERTY RIGHTS.
- Grant of Rights. Subject to the terms and conditions of this Agreement, Liberation Technology hereby grants to Customer, during the Term and under its Intellectual Property Rights, a non-exclusive, non- sublicensable, paid-up license to access and use the Services. Similarly, subject to the terms and conditions of this Agreement, Customer hereby grants to Liberation Technology, during the Term and under its Intellectual Property Rights, a non-exclusive, sublicensable, paid-up license to internally copy and use Customer Data (including Confidential Information contained therein), and host the Customer Platform and Platform Content solely for purposes of providing the Services.
- Other than the limited license each Party grants to the other under Section 11.1 (Grant of Rights), (i) Liberation Technology shall own and retain all right, title and interest in the Services and the Intellectual Property embodied therein (and any modifications thereto), and Liberation Technology reserves all rights not specifically granted to Customer in this Agreement; and (ii) Customer shall own and retain all right, title and interest in the Customer Platform, Platform Content, and Customer Data and the Intellectual Property embodied therein (and any modifications thereto), and Customer reserves all rights not specifically granted to Liberation Technology in this Agreement.
- Volunteered Feedback. The term “Feedback” means suggestions, ideas, feature requests, and recommendations by Customer relating to the Services or other elements of Liberation Technology’s To the extent Customer chooses to provide Feedback, Customer hereby grants to Liberation Technology nonexclusive, perpetual, irrevocable, paid-up license to copy, modify, distribute, and otherwise use and commercialize such Feedback.
- Non-Solicitation. Customer agrees that during the Term, and for one year thereafter, Customer will not directly or indirectly solicit or encourage (i) any employee to terminate their employment with Liberation Technology, (ii) any Liberation Technology contractor to cease rendering services to Liberation Technology or to replicate any Liberation Technology Service.
- No Reverse Engineering; No Circumvention. Customer may not access or use the Services other than as authorized in this Agreement. Customer may not (and may not assist a third party to): (i) decompile, disassemble, or reverse engineer any components of the LTS Infrastructure of LTS-Provided Equipment, or attempt to derive associated source code (except as permitted by law); (ii) attempt to bypass, delete or disable any security features of the Infrastructure Storage Service, or permit or gain unauthorized access to the LTS Infrastructure; or (iii) introduce or propagate any virus, unauthorized data, or other harmful or malicious code or information into the LTS
- INDEMNIFICATION. Customer shall defend Liberation Technology from and against any demand, suit, action or other claim by a third party (including an End User) that is related to or arises from (i) the Customer Platform (to the extent such claim is not due to a defect in Services), (ii) Customer’s Content, (iii) End User Content, (iii) Customer’s use of the Services in a manner not expressly permitted in this Agreement, (iv) a security incident to the extent caused by Customer, or (v) failure by Customer to comply with Section 9 (Insurance) (each a “Customer-Related Claim”). Customer shall hold harmless and indemnify and Liberation Technology for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded or arising out of any such Customer-Related Claim. Liberation Technology shall provide Customer with timely written notice of Customer-Related Claims and shall provide reasonable cooperation, information, and assistance in connection therewith (at Customer’s expense) and Customer shall have sole control and authority to defend, settle or compromise such claim. Liberation Technology may participate in the defense at its sole cost and expense. Customer will not enter into any settlement that adversely affects Liberation Technology’s rights or interest without its prior written approval, not to be unreasonably withheld.
13. LIMITATIONS OF LIABILITY.
- Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF DATA, CORRUPTION OF DATA, LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ARISING UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
- Limitation Of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN THE EVENT OF ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT, LIBERATION TECHNOLOGY’S MAXIMUM LIABILITY TO CUSTOMER, REGARDLESS OF THE AMOUNT OF LOSS CUSTOMER MAY HAVE SUFFERED, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO LIBERATION TECHNOLOGY FOR THE SERVICE AT ISSUE WITHIN THE YEAR PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
- The Basis of the Bargain. The Parties acknowledge that prices have been set, and the Agreement is entered into in reliance upon the limitations of liability set out in this Section 13 (Limitations of Liability) and that such limitations form the basis of the bargain between the
14. ASSIGNMENT
- Assignment by Customer. Customer may not assign or transfer any of its rights and obligations under this Agreement, without the written consent of Liberation Technology, which shall not be unreasonably withheld. If Customer is a corporation, partnership, limited liability company or other entity, the transfer of more than fifty percent (50%) of the ownership interests of Customer or the transfer of a lesser percentage which results in a transfer of control of Customer, whether in one transaction or a series of related transactions, shall constitute an assignment for purposes of this Agreement. As a condition to granting consent, Liberation Technology may require any proposed assignee or transferee to execute documentation acceptable to Liberation Technology in connection with the applicable transfer or assignment, including, without limitation, an assumption agreement whereby the transferee assumes all of Customer’s liabilities, duties and obligations under this Agreement.
- Assignment by Liberation Technology. Liberation Technology may assign or transfer part or all of its respective rights and obligations under this Agreement without notice to Customer, including without limitation, to any entity that is a subsidiary or affiliate of Liberation Technology or to any entity that is the survivor of a mergerwith Liberation Technology and any entity that acquires all or substantially all of the assets of Liberation Technology, or to any bank, lender or other financier of Liberation Technology as collateral security. In the event of any transfer or termination of Liberation Technology Service’s interest in the Data Center by sale, assignment, transfer, foreclosure, deed-in-lieu of foreclosure or otherwise whether voluntary or involuntary, Liberation Technology shall be automatically relieved of any and all obligations and liabilities on the part of Liberation Technology from and after the date of such transfer or termination, and any subsequent owner of the Data Center shall only be responsible for such obligations and liabilities under this Agreement which accrue from and after the date such transferee or assignee acquires Liberation Technology ’s interest as licensor under this Agreement. Customer agrees to attorn to the transferee upon any such transfer and to recognize such transferee as the licensor under this Agreement.
- General. This Agreement shall apply to, bind, and inure to the benefit of, any permitted transferees, assignees or successors.
- This Agreement shall take effect on the Effective Date and, unless terminated earlier in accordance with Section 16 (Termination), shall continue in force for two
(2) years (the “Initial Term”). Thereafter, this Agreement will automatically renew for one (1) year periods (each a “Renewal Term”) unless one Party, on notice given not less than thirty (30) days before expiration of the Initial Term or the then-current Renewal Term, informs the other of its intent not to renew; provided, however, that the Initial Term and any Renewal Terms shall be extended for the duration of any pending SOWs. The Initial Term and Renewal Terms, as extended by such SOWs, are collectively referred to as the “Term.”
16. TERMINATION.
- Customer Termination for Convenience. Customer shall be entitled to terminate this Agreement or specific Services for convenience, upon Customer’s fulfillment of its obligation to pay Early Termination Fees under Section 16.6 (Early Termination Fee).
- Termination for Cause. Either Party shall be entitled to terminate this Agreement for material breach by the other, upon providing notice to the other Party (a “Notice of Breach”) and a thirty (30) day period to cure, commencing on such Party’s receipt of this notice (the “Cure Period”). In the event the Party in breach does not effect a cure within the Cure Period, this Agreement shall be deemed terminated as of the date of the Notice of
- Termination or Suspension for Security Purposes; Illegality. Liberation Technology shall be entitled, immediately and without providing a Cure Period, to terminate or suspend its performance of this Agreement or specific Services if it determines, in its sole judgment, that Customer or an End User is in breach of Section 3.5 (Prohibitions on Use). Liberation Technology will timely notify Customer of a termination or suspension under this Section 16.3 (Termination for Security Purposes; Illegality).
- Suspension of Services for Non-Payment.Upon ten (10) days written notice and opportunity to cure, Liberation Technology shall be entitled to suspend its performance of some or all Services to Customer if Customer fails to pay fees or charges in accordance with Section 7 (Fees and Payments).
- Reconnect Fees. If Liberation Technology suspends Services pursuant to Section 16.3 (Termination or Suspension for Security Purposes; Illegality) or Section 16.4 (Suspension of Services for Non-Payment) and Liberation Technology subsequently reconnects the suspended Services, Customer agrees to pay (in addition to any other fees or sums owing under this Agreement) the Reconnection Fee. Unless otherwise provided in the applicable Addendum, the Reconnect Fee shall be an amount equal to two (2) times the then-current monthly service fees.
- Early Termination Fee. Early Termination Fee. Pursuant to Section 6, Customer shall pay Liberation Technology Services an early termination fee , as liquidated damages, not as penalty, based on the applicable then-current Service Term, calculated as follows: (i) 100% of the outstanding services under a MDC or Professional Services Contract (ii) 100% of the remaining monthly recurring charges for each terminated Service or portion thereof for months 1 through 12; plus (iii) 90% of the remaining monthly recurring charges for each terminated Service or portion thereof for months 13 through 24, if any; plus (iv) 80% of the remaining monthly recurring charges for each terminated Service or portion thereof for months 25 through the end of the Service Term, if any; plus (v) any installation or other fees identified on the Quote for the terminated Service or portion thereof as having been previously waived; plus (vi) the unamortized portion of any applicable commissions paid by Liberation to any broker, agent or other authorized representative of Customer; plus (vii) all reasonable costs and expenses incurred by Liberation as a result of collecting such early termination fee. Such amount will be billed to Customer in one lump sum. The parties agree that the above formula represents a reasonable estimate of Liberation’s anticipated damages from an early termination, which are difficult to calculate with precision. Customer shall not be liable for the early termination fee if Customer terminates this MSA pursuant to Section 6 or any other Section that permits termination by Customer “without liability”..
- Insolvency. Either Party shall be entitled to terminate this Agreement immediately upon written notice, if the other Party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other such a proceeding is instituted against the other Party and is not dismissed within 90 days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
17. EFFECT OF TERMINATION OR EXPIRATION.
- Cessation of Services. Upon termination or expiration of this Agreement, Liberation Technology shall cease providing all Services to Customer; upon termination of a specific Service, Liberation Technology shall cease providing that Service, and continue to provide any remaining Services in accordance with the terms and conditions of this Agreement.
- Destruction of Confidential Information. Unless otherwise expressly permitted under this Agreement, promptly after termination or expiration of this Agreement, each Party shall (i) either (a) return the other Party’s Confidential Information, or (b) permanently destroy such Confidential Information, and erase it from storage media. Upon request, a Party shall certify in writing to the destruction of such Confidential Information and Derived
- Removal of Customer Platform and Customer Content. Within ten (10) days of the termination or expiration of this Agreement, and upon Liberation Technology’s receipt of all sums due (including Early Termination Fees) Customer shall be entitled to remove the Customer Platform, Customer Data, and all Platform Content from the LTS Infrastructure and remove all Customer Equipment from Customer Space, or other Data Center location. If Customer does not remit the sums payable and/or does not remove such items within this 10 day period, Liberation Technology will have the right (i) to erase Customer Platform, Customer Data, and Platform Content, re-claim and re-license the Infrastructure Storage Service, and (ii) to remove and store, at Customer’s expense, such Customer Equipment.
- No Effect on Prior Obligations or Other Remedies. Expiration or termination of this Agreement shall not affect any obligation which accrued prior to such expiration or termination, and Customer shall promptly remit to Liberation Technology all unpaid fees and charges according to the terms of this Agreement.
- Survival. The terms of this Agreement that by their sense and context are intended to survive termination or expiration of this Agreement shall so survive termination or expiration, including without limitation, provisions for indemnification and the making of any payments.
18. MISCELLANEOUS.
- Order of Precedence. For any inconsistency or conflict in language between this MSA, an Addendum, or Liberation Technology Services Confidential MSA version 3.3 Party’s property, or the other Party seeks protection unPdaegre 8 of 14 any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or an SOW, the order of precedence shall be as follows: (i) the language of the SOW shall control the conflicting language of Addendum and the MSA, and (ii) the language of the Addendum shall control the conflicting language of the MSA; provided, however, that SOWs and Addenda will not control a legal term in this MSA unless the SOW or Addendum it identifies the legal term by section number.
- Independent Contractors. Liberation Technology and Customer are independent contractorsand this Agreement will not establish any relationship of partnership, employment, franchise or agency for any
- Force Majeure. Neither Party shall be liable to the other for any failure of performance or equipment due to causes beyond such party’s reasonable control, including but not limited to: acts of God, fire, explosion, emergencies, civil unrest, wars, third party services or materials, strikes, lock-outs, work stoppages, labor shortages, pandemic, cyber-attacks, natural disaster, or other events of a type or severity for which industry precautions are generally not taken (“Force Majeure Events”). If Liberation Technology is unable to deliver a Service for thirty (30) consecutive days due to Force Majeure Events, Customer shall have the right to terminate the affected Service, for convenience under Section 16.1 (Customer Termination for Convenience), and without obligation to pay Early Termination Fees.
- Regulatory Changes. In the event that a new tariff is filed or and existing tariff is increased, there is a change in law, rule or regulation, or circumstance that increases the costs or other terms of delivery of Services, or if the cost of delivery of Services is increased due to Force Majeure Events or use of generator power, Liberation Technology may notify Customer and will have the right to modify Customer’s payment terms hereunder so that such increase in cost is paid by Customer. Customer agrees to pay such an increase in cost upon receipt of invoice
- Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, courier, sent by email (with verifiable deliver and read receipts), confirmed delivery facsimile, registered S. Mail with certified return receipt requested and postage prepaid, in each case to the address set forth below or to such other address as may hereafter be furnished in writing by either party to the other party in accordance with this section. Notices will be deemed to have been duly given (i) when received, if personally delivered; (ii) when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; (iii) the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
To Liberation Technology at:
Liberation Technology Services
10530 72nd St. Largo, FL 33777
Email:
- Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement. This Agreement, as executed, may be delivered by facsimile transmission, by electronic mail, or by other electronic transmission, and may be transmitted in portable document format (.pdf) or other electronic or facsimile format. Each such executed facsimile, .pdf, or other electronic record shall be considered an original executed counterpart for purposes of this Each party to this Agreement (i) agrees that it will be bound by its own Electronic Signature (as such term is defined immediately below), (ii) accepts the Electronic Signature of each other party to this Agreement, and (iii) agrees that such Electronic Signatures shall be the legal equivalent of manual signatures. The term “Electronic Signature” means (a) the signing party’s manual signature on a signature page, converted by the signing party to facsimile or digital form (such as a .pdf file) and received from the signing party’s customary email address, customary facsimile number, or other mutually agreed-upon authenticated source; or (b) the signing party’s digital signature executed using a mutually agreed-upon digital signature service provider and digital signature process.
- Modification, Severability. This Agreement may be changed only by a written document signed by authorized representatives of Liberation Technology and Customer. If any provision of this Agreement, as applied to either party or to any circumstance, is adjudged by a court or arbitrator to be invalid, illegal or unenforceable, the same will not affect the validity, legality, or enforceability of any other provision of this Agreement and the affected term or provision shall be modified to the minimum extent permitted by law so as most fully to achieve the intention of this Agreement. All terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law.
- No Waiver; All Rights Cumulative. The failure by either party to enforce any rights hereunder shall not constitute a waiver of such right(s) or of any other or further rights The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default.
- Third Party Beneficiaries. The provisions of this Agreement and the rights and obligations created hereunder are intended for the sole benefit of Liberation Technology and Customer and their permitted assignees and transferees, and do not create any right, claim orbenefit on the part of any person not a party to this Agreement. The Parties do not intend any provision of thisAgreement to be enforceable by or to benefit any third party.
- Publicity. Neither Party shall issue any publication relating to this Agreement without the consent of the other party.
- Remedies. Unless otherwise provided in this Agreement, no remedy is exclusive, and a Party shall be entitled to assert all available rights in remedies.
- Attorney’s Fees. If either Party retains an attorney to enforce the terms of this Agreement or to collect money due hereunder, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, court costs and other related expenses incurred in connection
- Estoppel Certificate. Customer shall, within ten (10) days’ prior written notice from Liberation Technology (but only in connection with a sale, financing, transfer, or similar transaction involving the Data Center), deliver to Liberation Technology’ designee a signed statement certifying the following information (but not limited to the following information in the event further information is reasonably required by Liberation Technology): (i) that this Agreement is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Agreement, as modified is in full force and effect); (ii) the dates to which the fees and other charges due under this Agreement are paid in advance, if any; (iii) the amount of Customer’s security deposit, if any; and (iv) acknowledging that there are not any uncured defaults or breaches on the part of Liberation Technology under this Agreement (including, without limitation, all Addenda), and no events or conditions then in existence which, with the passage of time or notice or both, would constitute a default or breach on the part of Liberation Technology under this Agreement (including, without limitation, all Addenda), or specifying such defaults events or conditions, if any are claimed. It is expressly understood and agreed that any such statement may be relied upon by a prospective purchaser or encumbrance of all or any portion of the Data Center. Customer’s failure to deliver such a statement within such a ten (10) day period shall constitute an admission by the Customer that all statements there are true and correct.
- Subordination; Agreement as License. Customer accepts this Agreement subject and subordinate to any mortgage, deed of trust, deed to secure debt, ground lease or master lease of Liberation Technology and to any renewals, modifications, consolidation, refinancing and extensions thereof. It is understood that Liberation Technology’ interest in the Customer Space and Data Center may be that of ground lessee or licensee, rather than owner. This provision is hereby declared to be self- operative and no further instrument shall be required to affect such subordination of this Agreement; provided, however, Customer shall, within ten (10) days after Liberation Technology written request therefore, execute, acknowledge and deliver any documents reasonably requested by Liberation Technology to assure the subordination of this Agreement to any of the same. Notwithstanding the foregoing, if the lessor under any such lease or the holder of any such deed to secure debt advises Liberation Technology that they desire to require this Agreement to be prior and superior thereto, upon written request of Liberation Technology to Customer, Customer agrees to promptly execute, acknowledge and deliver any documents which Liberation Technology or such lessor, holder or holders reasonably deem necessary for purposes thereof. Notwithstanding any interpretation that may be placed in this Agreement by Customer, or any court or governmental body, this Agreement, each Addendum and each SOW collectively represent an agreement for and license to use Services. As such the rights of Customer under this Agreement constitute general intangibles under Article 9 of the Uniform Commercial Code, and do not constitute an interest in real estate or a lease of real property.
- Substitution. Customer acknowledges and agrees that Liberation Technology may utilize 3rd party network providers to fulfill its network services obligations, and that Liberation Technology may, at its sole discretion, replace or substitute 3rd party providers with similar services from time to time for the sustenance or betterment of the
- Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties related to the subject matter hereof and supersedes and replaces any and all prior or contemporaneous discussions, agreements and understandings regarding such subject matter. Each AFS and Addendum includes terms which are in addition to, and not in lieu of the Agreement, and shall be deemed to be part of this Agreement. Unless expressly provided for in the Agreement, Customer agrees not to claim any reliance on any other opinion, advice, recommendation, statement, representation, warranty of Liberation Technology regarding the suitability, fitness, quality, merchantability, or the compatibility or functionality of any equipment or software. Any additional or different terms in any purchase order or other response made by Customer shall be deemed objected to by Liberation Technology without need of further notice of objection and shall be of no effect or in any way binding upon Liberation Technology.
- Arbitration. Any dispute, controversy, or claim arising out of or in connection with or relating to this Agreement or any breach or alleged breach thereof (each a “Dispute”) shall be submitted to a single arbitrator andsettled exclusively by confidential binding arbitration pursuant to the Commercial Rules then in effect of the American Arbitration Association. The arbitration proceeding shall be held in Tampa, Florida or other location mutually agreed upon by the Parties. Theprevailing party (as determined by the arbitrator) shall be entitled to its reasonable attorney’s fees, costs and expenses related to the arbitration. Judgment upon the award may be entered in any court of competentjurisdiction. To the fullest extent permitted by Law, each Party irrevocably waives all rights (i) to a trial by jury, (ii) tobring a Dispute as a class action or as private attorney general, and (iii) to act as a class representative or to participate as a member of a class of claimants.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Florida, except its conflicts of law principles. Exclusive jurisdiction and venue for actions related to this Agreement (other than those governed by Section 18.17 (Arbitration) will be the state or federal courts located in Florida in the judicial district in which Liberation Technology resides, and both Parties consent to the jurisdiction of such courts and the laying of venue in such judicial district with respect to any such action.
SCHEDULE A
DEFINITIONS
- “Addendum” means an addendum to this Agreement stating additional terms and conditions applicable to the specific Service at Unless otherwise specified, the term “Addendum” includes any SOWs associated with such Addendum.
- “Agreement” means (i) this MSA; (ii) Schedules to this MSA; (iii) any Addenda to this MSA, and (iv) SOWs to such Addenda, all as may be modified in accordance with the terms of this MSA.
- “Authorized User” means a person or entity to which Customer, in accordance with this Agreement, has granted permission to access LTS Infrastructure or Customer Space.
- “Committed Information Rate” means Customer’s agreement to pay for a minimum amount of bandwidth per month (expressed in Megabits per second (Mbps)), as set forth in an SOW.
- “Committed Volume Tier” means the amount of storage committed by the Customer that determines space allocated and price charged for Infrastructure Storage Services or Private Infrastructure Services.
- “Confidential Information” has the meaning set out in Section 1 (Scope).
- “Content” means data, software, and information of any nature and in any form (including written, audio, video, programming code, or other form, now known or hereafter invented).
- “Customer Data” means the data that Customer stores or processes via the Customer Platform for Customer’s internal purposes.
- “Customer Demarcation Point” means the first point where Customer receives telecommunications or internet access into Customer Premises or Customer Space.
- “Customer Content” means any Content that Customer makes available to End Users via the Customer
- “Customer Equipment” means hardware, software, connectivity, and all other computing resources owned or operated by Customer or by a third party on Customer’s behalf in connection with the Customer Platform (whether located in Customer Space, at Customer Premises, or elsewhere) other than (i) the LTS Infrastructure and (ii) LTS- Provided Equipment.
- “Customer Premises” means the location or locations of Customer’s (or Customer’s employees’) place of business or operations, at which Customer receives Services.
- “Customer Platform” means the websites, platforms, databases, or other solutions that Customer hosts or operates via the Services.
- “Customer Space” means the portion of the Data Center(s) and associated power which Liberation Technology licenses or otherwise provides to Customer.
- “Deliverables” means documentation, software code or configurations, work product, or other tangible materials that Liberation Technology is to deliver to Customer under an Addendum.
- “Data Center” means the buildings and facilities owned or leased by Liberation Technology from which Services are provided.
- “Early Termination Fee” has the meaning set out in Section 6 (Early Termination Fee).
- “End User” means a person or entity that accesses the Customer
- “End User Content” means Content that an End User submits to, processes by, or transmits by means of, the Customer
- “Infrastructure Administrator” means one or more Customer representatives or Liberation Technology employees designated by the Customer as having the right to access the self-service features of the Liberation Technology Infrastructure .
- “Intellectual Property” or “Intellectual Property Rights” means, in any jurisdiction, rights under patent law, trademark law, and copyright law; rights in trade secrets and confidential information; rights in mask works; and other similar rights to exclude another from the use or enjoyment of an asset or process.
- “Jitter” means the average variation in latency between successive packets sent between the same network endpoints throughout a given month.
- “Latency” means the maximum round-trip time required for a data packet to traverse the Liberation Technology Network between any two specific endpoints during any five-minute sample period, as averaged throughout a given
- “Law” means rules, regulations, statutes, ordinances, orders and rulings of a government, administrative, and regulatory authorities.
- “Losses” means claims, demands, actions, suits, proceedings, and all damages, judgments, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and court costs).
- “LTS Infrastructure” means the network infrastructure and equipment operated by Liberation Technology or its service providers for purposes of delivering the Customer’s Services. For the avoidance of doubt, the term “LTS Infrastructure” includes applicable Data Centers and LTS-Provided Equipment, and excludes Customer Equipment and the Customer Platform.
- “LTS-Provided Equipment” means any hardware, software, network equipment, telecommunications equipment, or other equipment or device installed by Liberation Technology in Customer Space (or elsewhere at Customer’s request) that is not the subject of a sale to Customer.
- “Packet Loss” means the ability to successfully deliver some but not all packets between two specific endpoints during a five-minute sample period. Packet Loss is measured as the percentage of packets which could not be successfully delivered relative to the total number of packets for which delivery was attempted, as averaged throughout a given month.
- “Platform Content” means (i) Customer Content and (ii) End User
- “Reconnection Fee” means the fee specified in an applicable SOW for reconnecting Services provided to the
- “Remote Hands” means general Customer directed actions such as power cycling equipment, basic power or data cabling support, packing and/or unpacking of Customer Equipment, and simple keystroke commands to reboot or configure equipment.
- “Reservation” means Customer has requested that Liberation Technology make available to Customer a set amount of Service that Customer can at its sole discretion Reserved services typically have a unit-based rate.
- “Services” has the meaning set out in Section 2 (Services).
- “Service Affecting Event” means where a Service or Services are in a degraded condition as to render them materially unusable to or unavailable to Customer.
- “Service Affecting Incident” means a grouping of one or more related Service Affecting Events. Liberation Technology has final authority in declaring when a Service Affecting Incident is over which can include multiple Service Affecting Events.
- “SOW” has the meaning provided in Section 2 (Services).
- “Speed of Light Distance” means the speed of light (186,000 miles per second) multiplied by the optical route distance between the end points.
- “Start Date” means the start date for Services set forth in the applicable Addendum. If no start date is specified, then the term “Start Date” means the date on which Liberation Technology provides notice to Customer that provisioning is complete, and Services shall begin.
- “Target Date” the date, as agreed upon by Customer and Liberation Technology by which the Services or Customer Space will be ready for use/occupancy.
- “Term” has the meaning set out in Section 15 (Term).
- “Uplift” means the factor (which includes cost to distribute and cool power to Customer Space) by which Wholesale Power is multiplied to determine the final power bill.
- “Virtual Cross Connect” means an ethernet network connection from a port on the Liberation Technology Network to a port on an Infrastructure Provider network with the purpose of enabling communications to the Infrastructure Provider.
- “Wholesale Operating Expense” means the expenses for Data Center, Data Center grounds and Data Center common area maintenance apportioned to Customer who has engaged in a space license where power is billed on a Wholesale Power basis.
- “Wholesale Power” means Customer shall pay for actual usage of power on a monthly basis at the utility rate multiplied by the Uplift
Contact Information
If you have questions about this Agreement, please contact us by email or regular mail at the following address:
Liberation Technology Services Legal Department
10530 72nd St.
Largo, FL 33777
[email protected]