Storm7 Labs Master Services Agreement
1. SUBSCRIPTION SERVICE
Subject to the terms and conditions of this Agreement (including payment of all applicable fees) and during the Service Term, the Solution shall be available to Customer, to be used by Customer’s users solely for internal use of Customer or such Affiliates during the Service Term. The terms of this Agreement apply to the Solution, as well as to updates, and upgrades subsequently provided by Storm7 Labs to Customer for Storm7 Labs’ Solutions. Storm7 Labs shall provide the Services and may update the functionality, user interface, usability and other user documentation, training and educational information of, relating to the Solution, from time to time, in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Solution and customers’ use of the Solution.
Customer’s Order will specify the authorized scope of use for the Solution, which may include but not limited to: (a) the bandwidth volume per site; (b) the number of sites; (c) the number of devices covered; (d) the services monitored or other restrictions (as applicable, the “Scope of Use”).
3. CUSTOMER OBLIGATIONS AND LIMITATIONS
3.1. Customer will designate the Authorized Users, including the creation of usernames and passwords for such Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users and for all the activity of such Authorized Users and their use of the Account. Customer and its Authorized Users will maintain the confidentiality of all usernames, passwords, access, and account information under their control. Except to the extent caused by Storm7 Labs’ breach of this Agreement, including its obligations under Section 6 (Confidential Information), Storm7 Labs is not responsible for unauthorized access to the Account. Customer will contact Storm7 Labs promptly if (i) Account information is lost, stolen, or disclosed to an unauthorized person; (ii) Customer reasonably believes that the Account has been compromised, including any unauthorized access, use, or disclosure of account information; or (iii) any other breach of security in relation to its passwords, usernames, access information, or Storm7 Labs’ Solution that may have occurred or is reasonably likely to occur.
3.2. Customer shall not (and shall not allow any third party to) (i) copy, reproduce, sell, license (or sub-license), lease, loan, assign, transfer, or pledge the Solutions or any part thereof, or otherwise permit any third party to do any of the foregoing; (ii) modify, copy, display, disassemble, decompile, reverse engineer, revise or enhance or republish or create any derivative works or otherwise merge or utilize all or any part of the Solutions with or into any third party materials or components or attempt to access or discover the Service’s source code; (iii) place the Solution onto a server so that it is accessible via a public network or use the Solution for timesharing or for service bureau purposes; (iv) ship, transfer, or export the Solution or any component thereof or use the Solution in any manner prohibited by law, including without limitation to, sell, distribute, export or download Solutions into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, or otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list; (v) contest Storm7 Labs’ Intellectual Property Rights to the Storm7 Labs IP; (vi) use the Service that is installed on or embedded or included in any Hardware on any server or hardware other than the Hardware as delivered by Storm7 Labs; (vii) remove or add any labels, notices or logos to the Solutions, (viii) perform any act or be responsible to any omission that is illegal, including, without limitation, those enforcing censorship, privacy, government authority restrictions, or by accessing any blocked services, or in Storm7 Labs’ discretion otherwise jeopardizes, destabilizes, interrupts or encumbers the Solution and/or has a detrimental impact on Storm7 Labs and/or Storm7 Labs IP; (ix) transmit or upload any spam, viruses, spyware or other harmful, infringing, obscene, threatening, libelous, illegal, disruptive or destructive content, messages or files, or send or store worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (x) access any Solution and/or its servers through or use with the Solutions any unauthorized means, services or tools, including, without limitation, any data mining, robots, or similar automated means or data gathering and extraction tools, including, without limitation, in order to extract for re-utilization of any parts of the Solutions; (xi) use the Solution for any purpose other than as permitted by this Agreement, including all Orders; (xii) directly or indirectly conduct any penetration testing (including to users’ systems, network and/or servers) through or using the Solutions and/or their respective connectivity or networks, unless (a) Customer performs such testing to their own systems and applications through no use of the Solution; (b) Customer notifies Storm7 Labs about it 30 days in advance and in writing and (c) it is done solely as part of its legal and obligatory auditing processes to assure the operation of the Solution, or for its internal security verification requirements. Whether Customer has violated any of the limitations set forth in this Section 3 shall reside within Storm7 Labs’ sole discretion. If Storm7 Labs determines a violation has occurred, Storm7 Labs shall notify Customer of the violation and Customer shall be required to cease the violation immediately. Storm7 Labs may also determine in its sole discretion whether to suspend or block the Customer Account. Storm7 Labs shall use such remedy if and when such violation represents an imminent threat to Storm7 Labs or if so directed by a court of competent authority. In such cases Storm7 Labs will: (i) suspend the Account only to the extent reasonably necessary to prevent any harm to Storm7 Labs; (ii) use its reasonable efforts to promptly contact Customer and give Customer the opportunity to promptly change the configuration of its device(s) accordingly and/or work with Customer to promptly resolve the issues causing the suspension of the Account; and (iii) reinstate any suspended part of the Account immediately after any issue as above-mentioned has been resolved, provided if Storm7 Labs determines that any such violation was willful or is unable to be adequately remedied, it may immediately terminate this Agreement and/or any impacted Order without penalty upon notice to Customer.
3.3. Customer is solely responsible for acquiring and maintaining all of the hardware, software and services necessary to access and make use of the Solutions, including paying all fees and other costs related to internet access. Customer shall use the Solutions in accordance with the Storm7 Labs’ Solution documentation made available and/or provided by Storm7 Labs, and as may be updated form time to time, and in compliance with the applicable operating instructions and all applicable laws and regulations and for no purpose other than as specifically authorized in the Solution documentation, including without limitation, Customer shall not use the Solution for the purpose of circumvention of government censorship, laws or regulations.
3.4. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data. Customer will enable and permit Storm7 Labs (and/or its third-party contractors) to process Customer Data, which includes network traffic including traffic data and URL(s), IP address(es) used in connection therewith to support the Services.
3.5. Customer will comply with all applicable privacy laws and regulations (including all registration and notice requirements), and Customer will obtain all applicable consents required by law for data processing by Storm7 Labs of personal information submitted by Customer, if any.
4. IP OWNERSHIP
Notwithstanding any other provision to the contrary, all Storm7 Labs Confidential Information, Trademarks, Feedback, the Service and the Intellectual Property Rights in the Hardware or Software and all improvements, enhancements and derivatives thereof and all Intellectual Property Rights thereto (“Storm7 Labs IP“) are exclusively owned by Storm7 Labs and/or its licensors. This MSA does not convey to the Customer any right, title or interest in the Storm7 Labs IP. Customer Confidential Information, Customer Trademarks, and other Customer proprietary information, including all Customer Data, shall be the sole property of Customer, and Storm7 Labs shall only have such rights to use such information as expressly provided in this Agreement and to provide the Storm7 Labs Solution.
5. FEES, PAYMENT TERMS AND TAXES
All fees payable shall be paid within thirty (30) days from the date of invoice, in U.S. dollars; all fees are non-refundable, non-cancelable and non-creditable. Any amount not paid when due shall bear a late payment charge, until paid, in an amount equal to 1.5% per month or, if lower, the maximum rate allowed by law. Customer shall be responsible for all costs of collection, including attorneys’ fees. Any fees and other charges payable under this Order are exclusive of levies, duties or taxes, including without limitation, withholding taxes, which shall be payable by the Customer without reduction of amounts owed to Storm7 Labs, at the rate and in the manner prescribed by law.
6. CONFIDENTIAL INFORMATION
6.1. The Recipient agrees and acknowledges that all Confidential Information it obtains from the Disclosing Party constitutes the confidential property of the Disclosing Party if it is identified as confidential at the time of disclosure or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Storm7 Labs Solutions, pricing, technical information and other code, data, business or financial information of any type (including, without limitation, Storm7 Labs’ plans for new or enhanced products and services) provided by Storm7 Labs will be deemed trade secret and Confidential Information of Storm7 Labs without any marking or further designation.
6.2. The Receiving Party may use or make copies of the Confidential Information of the Disclosing Party only to the extent reasonably necessary for purposes of this Agreement. The sharing of Confidential Information hereunder shall be “as is” without warranty and conveys to the Receiving Party no rights in or to such Confidential Information. The Receiving Party will protect the confidentiality of the Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own similar information, but in no event using less than a reasonable standard of care.
6.3. The Receiving Party will restrict access in the Confidential Information to those of its personnel (including such personnel employed by its Affiliates, contractors, agents and legal and financial professionals) and subcontractors engaged in the performance, management, receipt or use of the Solution under this Agreement, or otherwise necessary in connection with its performance of all obligations under this Agreement, provided that such parties are bound by obligations of confidentiality at least as restrictive as the terms of this Agreement. The Receiving Party will return or destroy the Disclosing Party’s Confidential Information in its possession upon request by the Disclosing Party, and upon the expiration or other termination of this Agreement, provided the Receiving Party may retain the Confidential Information of the Disclosing Party by agreement or if required under applicable law. Each party may retain copies of the other party’s Confidential Information required for compliance with its recordkeeping or quality assurance requirements (subject to the terms of this Agreement and all confidentiality requirements herein for the length of such retention).
6.4. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm to the Disclosing Party that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by the Recipient will be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
7.1. This MSA shall be effective on the latter of Customer or Storm7 signature of this MSA.
7.2. Service(s) shall be provided for the term specified in the Sales Order (the “Initial Service Term”), with the Initial Service Term commencing as of the Service Activation Date of the Service(s). Any Services subsequently added through means other than a signed Sales Order (i.e. ticket or email) will be coterminous with the Initial Service Term. Unless one of the Parties provides written or electronic notice of termination to the other Party on or before sixty (60) days prior to the expiration of the Initial Service Term of any Service(s), such Service(s) shall automatically continue in full force for one or more renewal term(s) (“Renewal Service Term(s)”), equal in length to the Initial Service Term of such Service, until a Party provides sixty (60) days’ written or electronic notice of termination of Service(s) prior to the expiration of the then current Renewal Service Term, or otherwise terminates Service(s) pursuant to the terms of the Agreement. The Initial Service Term together with any such Renewal Service Term(s) shall be referred to collectively as the “Service Term.”
7.3. Following the Effective Date of the Sales Order, Storm7 Labs will commence the deployment of all Services detailed in the Sales Order. Once Storm7 Labs has made a Service available for Customer's use, or Storm7 Labs has activated a Service on Customer's behalf (for 3rd party licensing services, including but not limited to Office 365), Storm7 Labs will begin billing customer for the Services. Once the deployment of services is complete this will constitute the "Service Activation Date" and the Sales Order term will commence.
7.4. Any failure of performance or delay attributable to Customer or Customer’s agents, representatives, or other contractors, or any failure, incompatibility, or unavailability on the part of Customer’s equipment or network, facilities, or systems provided by Customer’s other contractors (“Third Party Equipment”), shall not serve to delay the Service Activation Date or otherwise excuse Customer from being required to make payment for the Service at such time as Storm7 Labs would be ready to provide the Service, regardless of whether Customer is ready to use the Service.
7.5. Should any additional Order Form be submitted by Customer for additional Services during any existing Service Term or renewal Service Term, the initial Service Term of such Additional Order shall be pro-rated to concur with the existing Service Term or renewal Service Term so that the termination of all current Service Terms and all subsequent renewal Service Terms shall coincide to take effect on the same date. Applicable fees shall be pro-rated in accordance with any pro-rated Service Term or renewal Service Term.
8.1. If Customer cancels in whole or in part any Service, for convenience and without cause, before the Service Activation Date for such Service, Customer will pay the aggregate fees, charges, expenses, and taxes payable by Storm7 Labs (including, but not limited to, early cancellation, liquidated damages, or termination charges payable to third parties) in connection with the cancellation of the Service(s).
8.2. Storm7 Labs may terminate the MSA, cancel or terminate any and all Services, or suspend Services without any liability at any time upon: (i) any failure of Customer to timely pay any and all undisputed amounts due hereunder that is not cured within thirty (30) business days following written or electronic notice thereof; (ii) any other breach by Customer of any provision of the MSA that is not cured within thirty (30) days following written or electronic notice thereof; (iii) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or similar event with respect to Customer; (iv) any governmental prohibition or required alteration of the Service provided hereunder necessitating such termination.
8.3. Except as otherwise expressly provided for in Subsection 8.1 above (relating to cancellations by Customer prior to the Service Activation Date of a particular Service), if (i) Customer cancels or terminates a Service prior to the end of the Service Term for any reason Customer shall pay Storm7 Labs early termination charges (“Early Termination Charges”) (as liquidated damages and not as a penalty) equal to all MRCs and usage charges for the remaining balance of the Service Term. For the purpose of this calculation, Storm7 Labs will determine the charges by taking the quantity of cancelled or terminated Services billed on Customer’s account (averaged over the three (3) month period prior to the notice of cancellation or termination) multiplied by the MRC and/or usage rate for those Services, then will multiply that figure by the number of months remaining in the Service Term.
9. LIMITATIONS OF LIABILITY
NEITHER CUSTOMER NOR STORM7 LABS NOR STORM7 LABS’ AFFILIATES, LICENSORS, SUPPLIERS, REPRESENTATIVES OR SHAREHOLDERS, MANAGERS, DIRECTORS, OFFICERS, AFFILIATES AND EMPLOYEES, RESPECTIVELY, SHALL BE LIABLE UNDER THIS AGREEMENT UNDER ANY LEGAL THEORY WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF DATA INCLUDING ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOLUTION OR OTHER PECUNIARY LOSS EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION ON LIABILITY SHALL NOT APPLY TO CUSTOMER’S LIABILITY FOR FAILURE TO PAY ALL FEES UNDER EACH APPLICABLE ORDER. THE SOLE LIABILITY OF STORM7 LABS, IT’S AFFILIATE’S, AND LICENSORS, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT, BY STATUTE OR OTHERWISE, FOR ANY AND ALL CLAIMS IN ANY MANNER RELATED TO THIS AGREEMENT, WILL BE THE PAYMENT OF DIRECT DAMAGES NOT TO EXCEED IN THE AGGREGATE THE TOTAL SUBSCRIPTION FEES PAID BY CUSTOMER TO STORM7 LABS FOR THE SOLUTION DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
10. DISCLAIMER OF WARRANTY
STORM7 LABS MAKES NO WARRANTY REGARDING THE SOLUTION AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, INTERFERENCE WITH ENJOYMENT OR OTHERWISE. STORM7 LABS DOES NOT WARRANT THAT (I) THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, OR (II) THE SOLUTION WILL PERFORM IN ACCORDANCE WITH CUSTOMER’S EXPECTATIONS OR ACHIEVE CUSTOMER’S DESIRED RESULT.
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN CONNECTION WITH ITS USE OF THE SOLUTION HEREUNDER SHALL BE THOSE REMEDIES SET FORTH IN EACH SPECIFIC SALES ORDER.
11.1. This Agreement is the entire agreement between the parties regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications whether written or verbal, regarding the subject matter of this Agreement. Unless otherwise expressly provided, no provisions of this MSA are intended or shall be construed to confer upon or give to any person or entity other than Customer and Storm7 Labs, its Affiliates and successors or assignees any rights, remedies or other benefits under or by reason of the MSA; The terms and conditions of this MSA shall apply to all Order Form(s), orders and any additional or inconsistent terms appearing on purchase orders generated by Customer, if applicable, are not incorporated into this MSA and are not otherwise binding on Storm7 Labs.
11.2. Storm7 Labs may make necessary technical or other changes to the Solution and the provision of the Solution on an as-needed basis. Where any such change would adversely and materially affect Customer, Storm7 Labs shall notify Customer, through Storm7 Labs management system of the Solution to Customer’s administrator, and if such change is unique to the Customer via a ticket made available to Customer’s administrator of the Solution on the Customer Portal (the details of the Customer administrator should be inserted by the Customer in Storm7 Labs management system and should remain subscribed for Storm7 Labs’ notifications) and the change shall only take effect upon renewal of Customer’s then current Subscription Term of the Solution or upgrade, or additional Solution subscribed for from Storm7 Labs.
11.3. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither this MSA, nor any rights or obligations under this MSA, is assignable by Customer, without the prior written consent by Storm7 Labs. Storm7 Labs may assign this Agreement to any party without the consent of Customer. Any unauthorized assignment will be void and of no force or effect.
11.4. In case any provision of this MSA shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
11.5. Customer may reduce the quantity of any Service(s) ordered on a signed Sales Order or through means other than a signed Sales Order (i.e. ticket or email) ("Ordered Services") by up to twenty five percent (25%) over the course of the then-current Service Term. This term will only apply to products or services that are not contractually obligated to Storm7 Lab’s upstream providers or partners. If Storm7 Labs is contractually obligated for services on customer’s behalf, customer will be responsible for all early termination fees charged by that upstream vendor or partner.
11.6. Storm7 Labs may refer to Customer as a then current Customer in sales presentations, marketing materials and activities.
11.7. When Customer subscribes for the Storm7 Labs Solution directly from Storm7 Labs, this MSA is governed by the laws and courts of the State of Ohio.