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MASTER SERVICES AGREEMENT

This Master Services Agreement sets out the terms on which Markley Cloud Services (“MCS”) offers you access to and use of our sites, applications, tools and services (collectively "Services"). You agree to comply with all of the terms of this Master Services Agreement when accessing or using our Services.

This Agreement, along with any Service Order placed by you is the complete and exclusive agreement between you and MCS regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.

By clicking on "Accept Terms," accepting the terms of any Service Order, and/or using any of the Services provided by MCS, you irrevocably accept the terms and conditions of this Agreement.  

Please be advised that this Master Services Agreement contains provisions that govern how claims you and we have against each other are resolved (see Limitation of Damages and Indemnification provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against MCS or MCS’s agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate. Unless you opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis. 

1. SERVICE ORDERS. All Service Order(s) and purchase orders are subject to MCS's acceptance and will not be binding upon MCS or its affiliates or agents until MCS delivers such acceptance.  Each Service Order shall constitute a separate and enforceable agreement incorporating all the terms of this Master Services Agreement (each Service Order, together with this Master Services Agreement as it relates to such Service Order, is referred to herein as an “Agreement”). If any term of a Service Order conflicts or is inconsistent with any term of this Master Services Agreement, the terms of such Service Order shall govern.

2. MCS'S OBLIGATIONS. MCS agrees to provide to you the Services referenced in any Service Order agreed to by both you and MCS and to otherwise comply with the terms of this Agreement. 

3. YOUR OBLIGATIONS. You agree to do each of the following: (i) comply with applicable law and the terms of this Agreement (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) promptly cooperate with MCS to address and resolve all issues, problems, administrative procedures, End User complaints, regulatory investigations or inquiries or any other circumstances arising from your use of the Services and/or Equipment hereunder, reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date and (vi) immediately notify MCS of any unauthorized use of your account or any other breach of security. 

4. YOUR DATA. Your Data” means all data, including software, text, sound files and personal identification information (“Personal Information”) and other content that are stored or otherwise processed by you or End Users (or both) through use of the Services. End Users” means your own customers and other end-users who utilize or access the Services or the MCS network via the Services provided hereunder. You are solely responsible for the content of YOUR Data and for determining the suitability of the Services.  MCS is only responsible for maintaining a backup of Your Data if you specifically order backup services.  You represent and warrant that (i) if you are not utilizing MCS specifically for backup services, then you currently maintain, and at all times during the term of this Agreement will continue to maintain, a separate backup of Your Data; and (ii) you will secure and maintain all rights in Your Data necessary for MCS to provide the Services without violating the rights of any third party or otherwise obligating MCS to you or to any third party. As between the parties, Your Data is and at all times shall remain the sole and exclusive property of you.  MCS acquires no rights in Your Data, other than the right to host Your Data within the Services, including the right to use and reproduce Your Data solely as necessary to provide the Services.  MCS acknowledges and agrees that Your Data constitutes Confidential Information under this Agreement.

5. PRIVACY POLICY. “Personal Information” is information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. To the extent that MCS has access to Personal Information in connection with providing the Services, MCS shall allow access to the Personal Information exclusively to those employees, representatives, agents and subcontractors of MCS who have a need to access it pursuant to this Agreement.  MCS shall use the Personal Information solely to the extent necessary to carry out MCS’s express obligations under this Agreement and for providing the Services and for no other purpose.  We respect your right to access, correct, request deletion or request restriction of our usage of your Personal Information as required by applicable law.

6. YOUR SERVICES TO END USERS. You acknowledges and agree that you shall provide all billing, inquiry, and customer service to End Users, if any, and that MCS has no obligations to such End Users pursuant to this Agreement or any Service Order. 

7. SERVICE LEVEL AGREEMENT. The Service Level Agreement(s) listed below are part of this Agreement for those Services you are purchasing.

7.1 Network. MCS guarantees the Monthly Uptime Percentage of MCS’s network as provided to you as part of or in conjunction with the Services will be available at least 99.97% in any given monthly billing period, excluding scheduled maintenance. MCS shall not be held responsible for any connectivity problems caused in other networks outside of MCS’s internal network not within MCS’s control.

7.2 Workload. MCS guarantees the Monthly Uptime Percentage of the your contracted workload will be at least 99.97% in any given monthly billing period, excluding scheduled maintenance. If your workload fails, MCS will work diligently to ensure that it identifies the issue and eliminates the issue in order to provide the least possible interference to your contracted workload.

7.3 Storage. MCS guarantees the Monthly Uptime Percentage of your contracted storage solution (“Storage”) at least 99.97% in any given monthly billing period, excluding scheduled maintenance. If access to your Storage is unavailable, MCS will work diligently to ensure that it identifies and eliminates the issue in order to provide the least possible interference to your access to Your Data.

7.4 Support Services. MCS will use commercially reasonable efforts to ensure that each customer receives excellent support 24 hours a day, 7 days per week. In adherence with this commitment, all work shall be performed in a professional manner consistent with industry standards. 

7.5 Monthly Uptime Percentage. “Monthly Uptime Percentage” is calculated by dividing the number of minutes the Service in question was unavailable by the number of minutes in the monthly billing cycle for that service, then subtracting that number from 100%.

7.6 Credits. If MCS fails to meet a guarantee stated above as it pertains to any of the above referenced items utilized by you as part of the Services, you will be eligible for a credit against future bills issued to you by MCS. Credits will be calculated as a percentage of the fees for the Services adversely affected by the failure for the monthly billing period during which the failure occurred, as follows:

Network, Workload and Storage Services: In the event that any MCS service is not available at least 99.97% of the time, but is available 97.0% to 99.97% of the time in any given monthly billing period, you will receive a credit of 10% of your invoiced amount for said month pertaining to the fees for services affected.

In the event that any MCS service is not available at least 97% of the time, but is available 95.0% to 97% of the time in any given monthly billing period, your will receive a credit of 30% of your invoiced amount for said month pertaining to the fees for services affected.
In the event that any MCS service is not available at least 95% of the time in any given monthly billing period, you will receive a credit of 100% of your invoiced amount for said month pertaining to the fees for services affected.  
 
Support Services: In the event that MCS does not perform Support Services up to industry standards, you will receive a credit one hundred percent (100%) of the fees for support services for any work not performed in a professional manner consistent with industry standards. 
 
Limitations. You are not entitled to a credit if you are in breach of this Agreement (including any payment obligations) until you have cured the breach. You are not entitled to a credit if downtime would not have occurred but for your breach of this Agreement or your misuse of any of the Services. MCS will endeavor to proactively assess and apply any applicable services credits.  In the event that you believe you are entitled to service credits which have not be applied by MCS, you must contact MCS’s account team within sixty (60) days following the end of the downtime or violation of these Service Level Agreements. This Service Level Agreement is your sole and exclusive remedy for Service unavailability, failures or violations. Notwithstanding anything in this Service Level Agreement to the contrary, the maximum total credit for the monthly billing period, including all guarantees, shall not exceed 100% of your total monthly fee for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods. 


8. ACCESS/MAINTENANCE. You acknowledge that the Services and/or equipment utilized for provision of the Services may be subject to maintenance or repair and agree to cooperate in a timely manner and provide reasonable access and assistance as necessary to allow such maintenance or repair. MCS shall use reasonable efforts to provide advance notice of any scheduled maintenance. From time to time circumstances may require emergency maintenance or repairs. Under such circumstances, MCS shall endeavor to provide as much notice as is reasonably practicable, in its sole discretion.

9. TERM. The Term shall commence upon the earlier of (a) your acceptance of the Terms and Conditions of this Agreement and any related Service Order or (b) your acceptance and/or use of the Services. The Term of this Agreement shall expire upon the Term Expiration Date referenced in your Service Order. YOUR ACKNOWLEDGE THAT YOU WILL NOT BE ENTITLED TO ANY REFUND IN THE EVENT THAT THE AGREEMENT IS TERMINATED PRIOR TO THE EXPIRATION OF THE TERM. YOU HEREBY WAIVE ALL RIGHTS TO ANY SUCH REFUND. IN THE EVENT THAT THE AGREEMENT OR ANY SERVICE ORDER IS TERMINATED FOR CAUSE, OR BECAUSE OF YOUR BREACH OF THE AGREEMENT, YOU SHALL BE LIABLE FOR REMAINING FEES THAT WOULD BE PAID UNDER THE AGREEMENT FOR THE REMAINDER OF THE TERM OF ANY SERVICE ORDER.

10. PROOF OF CONCEPT. In the event that MCS has agreed to give you a trial use of the Services (“Proof of Concept”), such Proof of Concept shall be free of charge for thirty (30) days, commencing upon MCS giving notice to you that the Services are available for your use. You may cancel the Services and this Agreement by giving written request to cancel by email to cancel@markleycloud.com. In the event that you do not cancel the Services and/or this Agreement within thirty (30) days after your acceptance of the Terms and Conditions, you will be obligated to pay for the Services commencing on the thirty-first (31st) day after your acceptance of the Terms and Conditions and your credit card will be charged for the first month of Services.

11. FEES. You shall pay to MCS in U.S. Dollars, monthly Service Fees and all such other recurring fees, payable in monthly installments as set forth in all Service Orders. Fees shall be billed in arrears, with invoices generated on or about the fifteenth (15th) of the month for services provided in the previous month. Payment of Fees for each invoice shall be due on or before fifteen (15) calendar days following MCS’s production of such invoice, without any setoff or deduction whatsoever. The fees for the first full month of the Term, along with the entire Set-Up Fees then due and payable shall be due at the time of your acceptance of the Terms and Conditions of this Agreement or upon the first use of the Service. The monthly fees shall commence upon the earlier of the Fee Commencement Date referenced in the applicable Service Order, or upon MCS commencing the services referenced therein.

11.1 Credit Card Payments. If you provide a credit card to MCS for payment, you agree to pay, or authorizes MCS to charge, using your selected payment method, all fees associated with your use of the Services for the account type it has selected. IF YOU PROVIDE A CREDIT CARD FOR PAYMENT, YOU AUTHORIZE MCS TO AUTOMATICALLY CHARGE THE THEN-CURRENT FEES TO THE CREDIT CARD ASSOCIATED WITH YOUR ACCOUNT UPON THE DUE DATE FOR SUCH FEES. Except as otherwise specified herein, (a) fees are quoted and payable in United States dollars, (b) fees are based on the Services purchased and/or actual usage depending on the structure detailed in the Service Order, and (c) payment obligations are non-cancelable and fees paid are non-refundable. 

11.2 Late Payments. Any amounts for which payment is not received on or before the due date of such payment will accrue interest on the unpaid sum at the lesser of (i) the highest legal rate of interest permitted under Massachusetts law or (ii) one and one-half percent (1.5%) per month. MCS may apply any payments received by MCS to any one of your then outstanding charges. Continuing non-payment, including, but not limited to, any interests accrued or any additional charges, for more one (1) calendar month after the due date may result in a 5-day notice of suspension.  All payment failures must be cured within 5 days of notice, including any interests accrued thereon. Your failure to make payment within 5 days of such notice will result in suspension of the Services and a $100 reconnection fee, plus any actual costs incurred by MCS in reinstating the Services. If any amount is overdue by more than thirty (30) days after a suspension notice, the Service Order shall be terminated and any of your data still on MCS’s equipment may be deleted. If MCS brings a legal action to collect, or engages a collection agency, you must also pay MCS's reasonable costs of collection, including attorney fees and court costs.

11.3 Credits. Any credit that MCS may owe to you, such as a credit for a SLA remedy, will be applied to unpaid fees for services or refunded to you, at MCS’s option.

12. FEE INCREASES. MCS may increase your Fees under any Service Order effective as of the first day of any renewal term, but in no event shall Fees be increased under any Service Order until forty-five days after MCS’s written notice of a Fee increase.

13. SUSPENSION. MCS may suspend the Services without liability if: (i) MCS reasonably believes that the Services are being used (or have been or will be used) in violation of the Agreement or violation of law, (ii) MCS discovers that you are, or are affiliated in any manner with, a person who has used similar MCS services abusively in the past; (iii) you do not cooperate with MCS’s reasonable investigation of any suspected violation of the Agreement or violation of law; (iv) MCS reasonably believes that the Services have been accessed or manipulated by a third party without your consent, (v) MCS reasonably believes that suspension of the Services is necessary to protect MCS’s network or MCS’s other customers, (vi) a payment for the Services is more than 30 days overdue and you do not remedy the overdue payment within five (5) days after notice of the delinquency, or (vii) suspension is required by law. MCS will use reasonable efforts to provide advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless MCS determines, in its reasonable judgment, that a suspension on shorter or contemporaneous notice is necessary to protect MCS or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then MCS may continue to charge you the fees for the Services during the suspension, and may charge you a reinstatement fee (not to exceed $100 plus any actual costs incurred by MCS in reinstating the services) upon reinstatement of the Services.

14. TERMINATION UPON EXPIRATION OF TERM / AUTOMATIC RENEWAL. In order to cancel any Service upon the expiration of the term in any applicable Service Order, you must (i) send written notice of cancellation (“Cancellation Notice”) pursuant to Section 25 of this Agreement or email to cancel@markleycloud.com at least forty-five (45) days before the expiration of the then current Term and (ii) if you are cancelling for any reason other than your choice not to renew the Services after expiration of the then current Term, you must contact via telephone a MCS customer service representative to confirm the information set forth on the Cancellation Notice, unless otherwise instructed in writing by MCS to do so otherwise. If you do not cancel any Service as provided in this Section 14, the Term shall renew on a year-to-year basis. You acknowledge and agree that, except in the case of election not to renew Services, Services will not be cancelled and you will continue to be billed for Services unless you confirm via telephone the information provided in the Cancellation Notice as provided in this Section 14.

15. TERMINATION FOR BREACH. MCS may terminate the Agreement for breach on written notice if: (i) MCS discovers that the information you provided to MCS about you or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the order for Services, or if you are an entity or fiduciary, the individual submitting the order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within thirty (30) days of MCS’s written notice, (iv) a credit report indicates you no longer meet MCS’s reasonable credit criteria, provided that if MCS terminates on these grounds, MCS must give you a reasonable opportunity to migrate your environment out of its servers in an orderly fashion, (v) you fail to comply with any provision of the Agreement and does not remedy the failure within thirty (30) days of MCS’s notice to you describing the failure. You may terminate the Agreement for breach on written notice if: (i) MCS materially fails to provide the Services as agreed and does not remedy that failure within thirty (30) days of your written notice describing the failure, or (ii) MCS materially fails to meet any other obligation stated in the Agreement and does not remedy that failure within thirty (30) days of your written notice describing the failure, provided, however, that if MCS has commenced remedying a breach as described in (i) or (ii) in the preceding sentence, and continues to diligently pursue remedying such breach, you may not terminate the Agreement until the sooner of (a) ninety (90) days after your written notice describing the failure or (b) the date on which MCS ceases diligently pursuing such remedy.

16. ACCESS TO MCS BACKUP DATA. You will not have access to any information backed up on the MCS system unless you purchase backup services through a Services Order associated with such information.  You will not have access to Your Data stored on the MCS system during a suspension or following termination. Provided, however, that MCS will cooperate with you to migrate Your Data off of MCS’s equipment upon your request and your payment of any overdue amounts owed.

17. UNAUTHORIZED ACCESS OR USE OF THE SERVICES. You agree to take appropriate measures to protect against misuse or disruption of the Services, including measures to protect against unauthorized access to the Services and any loss or corruption of Your Data.  MCS is not responsible to you for unauthorized access to Your Data or the unauthorized use of the Services when such unauthorized access or use is the result of your actions or lack thereof. You are responsible for the use of the Services by any of your employees, any person to whom you have given 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. You agree to notify MCS immediately of any unauthorized use of the Services or of any other breach of security.

18. DISCLAIMERS. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. MCS has no obligation to provide security other than as stated in any applicable Service Order. MCS disclaims any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the Services chosen. The Services are provided AS IS. Any voluntary services MCS may perform for you at your request and without any additional charge are provided AS IS. 

19. CREDIT REPORT. You authorizes MCS to obtain a credit report at any time during the Term of the Agreement. 

20. EXPORT MATTERS. You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and is not otherwise a person to whom MCS is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.

21. CONFIDENTIAL INFORMATION. “Confidential Information” shall include but is not limited to (a) the trade secrets, engineering specifications, customer identities and locations, customer issues, structural or equipment configurations or malfunctions, costs, financial information, customer information, marketing communication material, SSAE16 or other audit reports and other information related to the business activities of MCS and you, regardless of any restrictive markings, which MCS and you learn or receive from each other; and (b) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by MCS or you which contain, reflect or are based on, in whole or in part, any Confidential Information furnished to Markley or you to each other pursuant hereto. Confidential Information does not include information which: (a) is or becomes generally known through no fault of the receiving party; (b) is known to the receiving party at the time of disclosure, as evidenced by its records; (c) is hereafter furnished to the receiving party by a third party as a matter of right and without restriction on disclosure; (d) is independently developed by the receiving party without use of or reliance on a disclosing party’s Confidential Information; or (e) is disclosed in response to a valid order of a court or other governmental body or is otherwise required by law to be disclosed, provided the receiving party gives sufficient notice to the disclosing party of such order so as to enable the disclosing party to take protective measures. MCS and you agree not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of MCS’s respective legal rights under the Agreement, or as may be required by law. MCS and you agree not to disclose the other's Confidential Information to any third person except as follows: 

  1. To MCS’s respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement.
  2. To law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable criminal law as required by law; or
  3. In response to a subpoena or other compulsory legal process, provided that each MCS and you give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.

22. LIMITATION ON DAMAGES. MCS’s obligations to you are defined by this Agreement. MCS is not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from MCS’s gross negligence or willful misconduct. The credits stated in the Service Level Agreement are your sole and exclusive remedy for breach of the Agreement. Neither you nor MCS (nor any of MCS’s employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.

Notwithstanding anything in the Agreement to the contrary, the maximum aggregate monetary liability of MCS and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim.

23. INDEMNIFICATION. You will indemnify, defend and hold harmless MCS, its affiliates and their respective directors, officers, employees, representatives and agents from and against any and all demands, claims, suits, actions, fines, assessments, damages, liabilities, losses costs and expenses, including reasonable attorneys’ fees and court costs (collectively, “Losses”) resulting from or arising out of (i) the use or resale of the Services, including, without limitation, any violation of the Agreement, except to the extent caused by MCS’s breach of its express obligations under the Agreement or the willful misconduct of MCS; or (ii) any bodily injury to a person (including death) or loss or damage to the real property or tangible personal property of MCS to the extent directly caused by your gross negligence or willful misconduct or that of End Users or their respective employees or contractors. If MCS, its affiliates, or any of its or their respective employees, agents, or suppliers (the "MCS Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the MCS Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. MCS will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you.  You must comply with MCS’s reasonable requests for assistance and cooperation in the defense of the claim. You must pay expenses due under this Section as MCS incur them. For clarity, you shall have no indemnification obligations hereunder to the extent any Losses are attributable to the negligence or other wrongful acts or omissions of MCS or its employees, contractors or representatives.

24. ARBITRATION. You and MCS each agree that any and all disputes or claims that have arisen, or may arise, between you and MCS (including any disputes or claims between you and a third-party agent of MCS) that relate in any way to or arise out of this or previous versions of the Agreement, your use of or access to the Services, the actions of MCS or its agents, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration, rather than in court. 

25. NOTICES. All notices, demands, statements, approvals or other communications (collectively, “Notices”) given or required to be given by either party to the other hereunder or by law shall be in writing and (i) sent by a nationally recognized overnight or two-day courier, (ii) by email, or (iii) delivered personally. Any Notice shall be sent to you or MCS at the addresses provided below, or to such other places as you or MCS may from time to time designate in a Notice. Any Notice will be deemed given upon the earlier of (A) two (2) days after the date it is posted if sent by overnight or two-day carrier, (B) the date the email is sent by the sender, or (C) the date personal delivery is made.


If to You: to the email address or physical address provided by you for such Notices
If to MCS: notice@markleycloud.com
or
Markley Cloud Services
One Summer Street, 5th Floor
Boston, MA 02110
617.451.6464

26. RULES AND REGULATORY COMPLIANCE. You shall comply, and shall cause its End Users to comply, with all Applicable Laws and the the terms of this Agreement or any stated rules or regulations in connection with use MCS’s network and/or the Services.  You are solely responsible for the acts and omissions of your employees, agents and contractors as well as your End Users.  MCS may make reasonable changes to the terms of this Master Services Agreement or to any rules or regulations governing your use of the Services at any time and such change will be effective upon posting to MCS’s website or other notice to you. MCS may suspend the Services or otherwise restrict access to the MCS network with notice to you (as soon as reasonably practicable under the circumstances) if MCS learns of violation of the terms of the Agreement or any rules and regulations that, in its reasonable discretion, is unlawful or is likely to cause substantial and imminent harm to MCS (e.g., significant risk of attack on the integrity of the network or transmission of a virus).

27. NO HIGH RISK USE. You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.

28. OWNERSHIP OF INTELLECTUAL PROPERTY. MCS and you each retains all right, title and interest in and to their respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by MCS during the performance of the Services shall belong to MCS unless MCS has agreed with you in advance in writing that you shall have an interest in the intellectual property.

29. IP ADDRESSES. Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by MCS in connection with Services, including pointing the DNS for your domain name(s) away from MCS Services. You agree that MCS may, as it determines necessary, make modifications to DNS records and zones on MCS managed or operated DNS servers and services.

30. INSURANCE. You shall carry and maintain during the Term of this Agreement, at your own cost and expense, a policy or policies of commercial casualty and general liability insurance, which policy or policies shall insure you against all hazards and risks customarily insured against by persons storing or archiving electronic records and business data/housing third-party equipment and personnel on their premises/operating a computing environment/locating equipment on MCS’s premises/etc.

31. ASSIGNMENT/SUBCONTRACTORS. You may not assign the Agreement without MCS's prior written consent. MCS may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of MCS’s business, and MCS may transfer your Confidential Information as part of any such transaction. MCS may use third party service providers to perform all or any part of the Services, but MCS remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if MCS performed the Services itself.

32. FORCE MAJEURE. Neither MCS nor you will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.

33. GOVERNING LAW, LAWSUITS. The Agreement is governed by the laws of the Commonwealth of Massachusetts. The Exclusive venue for all disputes arising out of the Agreement shall be in arbitration proceedings in the state or federal courts in Suffolk County, Massachusetts, and MCS and you each agree not to bring an action in any other venue.  You waive all objections to this venue and agrees not to dispute personal jurisdiction or venue in the event of any such dispute. You agree that you will not bring or participate in any class action lawsuit against MCS or any of its employees or affiliates. MCS and you both agree that they will not bring a claim under the Agreement more than two years after the time that the claim accrued.

34. COUNTERPARTS. The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.

35. NO VIOLATION. You hereby warrant and represent that neither your acceptance of, nor performance under this Agreement shall cause you to be in violation of any agreement, instrument, contract, Law, rule or regulation by which you are bound, and you shall protect, defend, indemnify and hold MCS harmless from and against any and all Claims arising from your breach of this warranty and representation.

By clicking on "Accept Terms," accepting the terms of any Service Order, and/or utilizing the Services in any way, you irrevocably accept the terms and conditions of this Master Services Agreement.