Subject to Section 6.1 hereof, this Master Services Agreement (this “MSA”) is made between COLOAZ and Customer as of the latter-dated signature below (the “Effective Date”) and consists of the general terms and conditions set forth on the following pages and all current and future schedules attached hereto or which will subsequently be added as provided herein. The general terms below together with the Schedules and all other related Schedules, Order Forms, agreements, amendments and attachments between COLOAZ and Customer collectively are the “Agreement.”
GENERAL TERMS AND CONDITIONS
1. Definitions. Capitalized terms used but not defined elsewhere in this Agreement will have the meanings set forth below:
“Acceptable-Use Policy” means the COLOAZ Acceptable-Use Policy that appears on COLOAZ’s website (incorporated herein by reference and as may be modified occasionally by COLOAZ, in its sole discretion).
“Affiliate” means, as to any Person, any Subsidiary of such Person and any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person and includes each officer or director or general partner of such Person, and each Person who is the beneficial owner of 5% or more of any class of voting Stock of such Person. For the purposes of this definition, “control” means the possession of the power to direct or cause the direction of management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“COLOAZ Software” means software provided by COLOAZ as specified on a Schedule or Order Form and that may be accessed by Customer solely in connection with the use of the Services, but that is not licensed to Customer.
“Customer Software” means any software, other than COLOAZ Software, required to perform the Services. Customer Software includes Third-Party Software.
“Deliverables” means code, documents or other materials created by COLOAZ and required to be delivered to Customer pursuant to a Schedule or Order Form. “Deliverables” does not include Software.
“Fully Implemented Date” means the date on which COLOAZ notifies Customer (including, without limitation, by e-mail) that Customer’s Services and/or application has been implemented.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Hardware” means servers, telecommunications and other equipment that are listed in an exhibit to this Agreement and that are to be supplied either by COLOAZ (“COLOAZ Hardware”) or Customer (“Customer Hardware”), as set forth in such exhibit, for the purpose of rendering the Services.
“Person” means an individual, partnership, corporation (including, without limitation, a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity or a Governmental Authority.
“Professional Services” means Services provided to Customer pursuant to a professional-services Schedule.
“Order Form” means the document describing the Services to be provided by COLOAZ to Customer pursuant to a Schedule under this Agreement, the pricing for such Services and the term during which such Services are to be provided to Customer.
“Schedule” means any attachment to this MSA (including, without limitation, an Order Form) that describes at least (a) the Services to be performed, (b) the Software and Hardware to be provided by each party in connection with the Services, (c) each party’s responsibilities with respect to the Services to be provided and the fees associated with such Services, Software or Hardware.
“Services” means the services (excluding COLOAZ Software and Hardware, unless otherwise set forth in the applicable Schedule) to be provided to Customer by COLOAZ, as described in a Schedule.
“SLA” means a service-level agreement attached to the applicable Schedule setting forth the credits available to Customer for downtime for any Covered Services.
“Software” means COLOAZ Software and Customer Software, including, without limitation, software applications, database software, operating-system software and/or remote access software.
“Stock” means shares of capital stock, beneficial or partnership interests, participations or other equivalents (regardless of how designated) of or in a corporation or equivalent entity, whether voting or non-voting, and includes, without limitation, common stock and preferred stock.
“Subsidiary” means, with respect to any Person, any corporation, partnership or other business entity of which an aggregate of 50% or more of the outstanding Stock having ordinary voting power to elect a majority of the board of directors, managers, trustees or other controlling persons, is, at the time, directly or indirectly, owned or controlled by such Person and/or one or more Subsidiaries of such Person (irrespective of whether, at the time, Stock of any other class or classes of such entity shall have or might have voting power by reason of the happening of any contingency).
“Term” means the term that is set forth in a Schedule, whether such term is entered into as of the Effective Date of this Agreement or subsequently thereto, and that may be amended or extended by subsequent Schedules.
“Third-Party Software” means any Software that is owned by a third party and licensed by Customer either from a third-party vendor or through COLOAZ pursuant to a separate agreement, Schedule or a Software Schedule, as applicable, and excludes COLOAZ Software.
“COLOAZ” means Integrated Endeavors, LLC, an Arizona limited liability company.
2. SERVICES AND LICENSES.
2.1 Scope. COLOAZ will perform the Services, deliver the Deliverables, provide access to the COLOAZ Software and/or distribute, license or sublicense the Third-Party Software acquired through COLOAZ as specified in a Schedule. Other than as expressly set forth in the relevant Schedule, Customer may not (x) resell, lease or sublicense the Services or COLOAZ Software or (y) use the Services or COLOAZ Software in a commercial-service-bureau environment or to process third-party data.
2.2 Access to Facilities and Information. Customer will provide COLOAZ reasonable access to hardware, equipment, tools, supplies, software, utilities, information and facilities of Customer that, in each case, COLOAZ reasonably determines necessary to enable it to perform any Services. Customer agrees to cooperate with COLOAZ and respond in a timely manner to all reasonable requests for access to Customer’s Service environment and/or information to facilitate COLOAZ’s delivery of Services. If Customer fails to cooperate with any such request, COLOAZ shall have no liability for any damage or injury that may arise as a result.
2.3 Change of Scope or Additional Services. Either party may request a change in the scope of the Services or request additional Services by submitting to the other party a written description of same. If the parties agree upon a change or additional Services request, the parties will execute a new Schedule. COLOAZ retains the right to refuse to provide any additional Services for any reason. A Services request will not be binding on either party unless agreed to in writing by both parties.
3. FEES AND PAYMENT.
3.1 Fees and Charges. Customer and COLOAZ shall agree upon the applicable fees and specify them in each Schedule. Customer agrees to pay COLOAZ for the Services and Third-Party Software acquired through COLOAZ in accordance with the applicable Schedule. Customer agrees to pay COLOAZ for the Services in accordance with the payment terms in Section 3.3 below.
3.2 Reimbursement of Expenses. In addition to the payment of applicable fees as specified in each Schedule, Customer shall reimburse COLOAZ for all reasonable out-of-pocket costs advanced and expenses incurred that are directly related to the performance of the Services, including, without limitation, non-standard or recurring expenses incurrec at the written request of Customer (such as airfare, hotel accommodations, business meals, miscellaneous travel expenses, and mileage). Upon request, COLOAZ will provide copies of supporting documentation as may be reasonably appropriate for Customer to confirm the nature and amount of any such expenses.
3.3 Payment. Customer shall pay COLOAZ all fees as specified in any Schedule. All amounts payable under this Agreement and not disputed in writing and in good faith shall, unless otherwise specifically set forth in the applicable Schedule, be payable in full within 30 days of the date of the invoice, in United States dollars, at the COLOAZ address set forth at the beginning of this MSA. Fees for initial set-up and other one-time fees will be billed upon signature of the Schedule. Recurring fees will be billed one month in advance beginning on the Fully Implemented Date of the Services. Failure by Customer to execute its acceptance of the environment within 10 business days after notification by COLOAZ of the Fully Implemented Date (as set forth herein) shall be deemed to be acceptance by Customer of the environment. Acceptance by Customer of the environment may also be deemed to have been communicated to COLOAZ by Customer’s usage of any of the Services (e.g., space, power and bandwidth). If COLOAZ has completed installation of a portion of the Customer environment and COLOAZ’s provision of Services under this Agreement depends on the completion of any further actions by Customer, COLOAZ may, at its discretion, invoice Customer for that portion of the Services already installed and provided by COLOAZ, and Customer shall be obligated to pay such invoice(s) in accordance with this Section. Where cooperation of Customer necessary for completion of the Customer environment is not provided on a timely basis, COLOAZ may, at its discretion, commence billing for the full environment as set forth in the next sentence. With the exception of all initial set-up fees and other one-time fees, which shall be invoiced upon execution of this Agreement, and unless otherwise set forth in a signed Schedule, billing shall commence upon Customer’s acceptance of the environment but not later than 60 days following the date of execution of the signed Schedule, whichever occurs earlier. Except with respect to metered services (i.e., bandwidth, backups and exchange), all fees owed under this Agreement shall be prorated if the Fully Implemented Date is after the first day of the month.
3.4 Late Fees/Interest. COLOAZ reserves the right to charge a late fee of 1.5% per month (18% per annum), or the highest rate allowed by applicable law, whichever is lower, calculated from the date such fee(s) were due, if payment in full is not received within 30 days of the date due. Customer shall pay any costs of collection (including reasonable legal and professional fees) incurred in collecting any amounts due hereunder. Notwithstanding anything in this Agreement to the contrary, if any invoice or portion thereof is past due and not disputed in writing and in good faith by Customer, COLOAZ may, in addition to receiving the above late-fee payments and any other remedies available under this Agreement or applicable law, (a) restrict Customer’s access to the Customer space, Customer Hardware and Customer Software until such past-due invoice is paid in full, (b) refuse to provide any new additional Services requested by Customer until all overdue invoices are paid in full and (c) refuse to provide power services to Customer upon 5 days’ prior written notice. If COLOAZ ceases providing power services to Customer pursuant to this Section, COLOAZ will resume power services within 24 hours of the receipt of payment of all past-due invoices; provided, however, that COLOAZ may charge a reinstatement fee equal to $50.00 multiplied by the number of circuits to be restored.
3.5 Waiver / Acceptance. The acceptance and deposit by COLOAZ of any payment from Customer or its Affiliates, by check, wire transfer or any other means, which payment contains reference of any type that such payment constitutes ‘payment in full’ or ‘in full satisfaction,’ shall not constitute an accord and satisfaction or a waiver by COLOAZ of any rights it possesses, in law or equity, to collect payment in full from Customer for any and all services provided to Customer under this Agreement.
3.6 Taxes. Customer shall pay COLOAZ for any taxes and duties (excluding taxes on COLOAZ’s net income) that are required to be collected or paid by COLOAZ.
3.7 Power Pricing. Pricing for power is subject to review and change on each annual anniversary or renewal of this Agreement. However, pricing for power is subject to a quarterly adjustment based on increases of utility costs of 3% or more realized by COLOAZ in the preceding quarter. COLOAZ will provide notice to Customer in the billing period prior to making the adjustment, but in no case will the notice be less than 20 days prior to the effective date of such adjustment, and COLOAZ will provide Customer with copies of utility invoices demonstrating such utility-rate increase.
3.8 Security Payment. Upon execution of this Agreement, Customer may be required to pay COLOAZ a security payment for Customer’s obligations hereunder, as indicated on a Schedule. COLOAZ shall not be obligated to segregate or to pay any interest on any portion of the Security Payment. Upon termination of this Agreement without renewal, any remaining portion of the Security Payment will, at COLOAZ’s option, either be returned to Customer or applied to its final invoice to the extent that, in each case, the Security Payment has not previously been applied to Customer’s account as a result of any default or breach of this Agreement by Customer.
4. PROPRIETARY RIGHTS/CCONFIDENTIAL INFORMATION.
4.1 Proprietary Rights. COLOAZ and Customer will continue to own or license all copyrights, patents, trademarks, service marks, trade secrets and other proprietary rights that such party owned or licensed immediately prior to this Agreement. COLOAZ owns all right, title and interest in and to all materials, tangible or intangible, developed by COLOAZ, alone or jointly with others, during the term of this Agreement. Upon payment of COLOAZ’s fees for the Services, COLOAZ grants Customer a non-exclusive, perpetual, fully-paid license to use, only in the ordinary course of Customer’s internal business, COLOAZ- owned works that are incorporated into, or embodied within, a Deliverable, provided that Customer is in compliance with its obligations under this Agreement. Customer owns all right, title and interest in and to all data and other information that it stores on COLOAZ systems.
4.2 Trademark Rights. During the term of this Agreement, Customer grants COLOAZ the right (a) to use Customer’s logo and name on COLOAZ’s website in connection with Customer’s use of COLOAZ Services and (b) to issue a press release announcing the Customer relationship and identifying the general type of Services purchased by Customer. Customer shall have the right to require COLOAZ to terminate such use at any time by written notice.
4.3 Indemnification Obligations for Violations of Proprietary Rights. Each party shall hold harmless, indemnify and defend the other against any third-party claim alleging that any Hardware, Software, data or other material provided by the other party (a) pursuant to this Agreement constitutes an infringement or misappropriation of any third party’s copyright, United States patent, trade secret, trademark or similar proprietary right or (b) is not properly licensed for the use contemplated by this Agreement. Pursuant to the foregoing, Customer shall provide such indemnification to COLOAZ for Customer Software and COLOAZ shall provide such indemnification to Customer for COLOAZ Software and Deliverables. All such claims will be handled as follows: The party providing the allegedly infringing material will defend or settle such claim at its sole expense and indemnify the other party against any damages and costs awarded by a court of final jurisdiction in an action relating to such claim or pursuant to a settlement agreement, provided that the other party notifies the indemnifying party promptly in writing of the claim, permits the indemnifying party to control the defense or settlement and cooperates fully with the indemnifying party in such defense and settlement. Neither party will have an obligation for any claim of infringement arising solely by reason of compliance with any written instructions of the other party. Neither party will indemnify the other party or be liable for claims to the extent based upon (y) the use of software, hardware or other technology provided by the indemnifying party with software, hardware, data or other technology supplied by the indemnifying party or (z) modifications to any software, hardware or other technology that were not performed by the indemnifying party.
4.4 Restrictions. Customer agrees that the COLOAZ Software contains trade secrets and other proprietary information owned by COLOAZ and/or its third-party licensors. Customer shall use the COLOAZ Software solely for the purpose of utilizing the Services provided hereunder. COLOAZ agrees that Customer Software contains trade secrets and other proprietary information owned by Customer and/or its third- party licensors. COLOAZ shall use Customer Software solely for the purpose of rendering the Services to Customer in conformity with the applicable Schedules and not for any other purpose.
4.5 Customer Data. All Customer data received, computed, developed, used or stored pursuant to this Agreement shall be the exclusive property of Customer and shall be considered Confidential Information (defined below) owned by Customer. Customer is solely responsible for the adequacy and accuracy of Customer data. COLOAZ may access such data solely for the purpose of delivering the Services. Where applicable, COLOAZ shall perform a data export and provide Customer with a copy of Customer data at Customer’s expense upon request.
4.6 Confidential Information. “Confidential Information” means any information and data, including in tangible, electronic or other form, of COLOAZ or Customer that is identified as confidential or proprietary at the time of disclosure or that should be understood to be confidential by the nature of the information or the circumstances of the disclosure. Confidential Information shall include, without limitation, Services, products, product configurations, Customer data, business plans, strategies, technology, software, documentation, methodologies, know-how, technical information, pricing, pricing mechanisms, financial information, information regarding each party’s operations, business relationships and the terms of this Agreement. Confidential Information shall not include any information that (a) is known to the receiving party prior to receipt hereunder from a source other than one having an obligation of confidentiality to the disclosing party, (b) becomes lawfully known (independently of disclosure by the disclosing party) to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party, (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement, or (d) is independently developed by the receiving party without use of the Confidential Information. The receiving party agrees that it will not use the Confidential Information of the disclosing party in any way, for its own account or the account of any third party, except for the purpose of performing this Agreement, nor will the receiving party disclose the Confidential Information of the disclosing party to any third party except as required by law. The receiving party will take reasonable precautions to protect the confidentiality of such Confidential Information. If either party is required by law to make any disclosure of any Confidential Information by subpoena, judicial or administrative order or otherwise, such party must first give written notice of such requirement to the other party, permit such other party to intervene in any relevant proceedings to protect its interests in the Confidential Information and provide full cooperation and assistance in seeking to obtain such protection, all at the disclosing party’s cost and expense.
4.7 Indemnification Obligations Related to Customer Data. Customer shall hold harmless, indemnify and defend COLOAZ against any third-party claim related to (a) any data provided or stored by Customer on a COLOAZ system or (b) any violations of the Acceptable-Use or Privacy Policies.
5. REPRESENTATIONS, WARRANTIES, DISCLAIMERS AND LIMITATION OF REMEDIES.
5.1 By Customer. Customer represents and warrants to COLOAZ that (a) the execution, delivery and performance by Customer of this Agreement and the consummation of the transactions contemplated hereby (i) are within Customer’s corporate or analogous powers, (ii) have been duly authorized by all necessary corporate or other action, (iii) do not and will not (A) violate any applicable federal, state and local laws, rules and regulations, and all orders, judgments, decrees or other determinations of any Governmental Authority (collectively, “Requirements of Law”) or arbitrator that are applicable to, or binding upon, such Person or any of its property or to which such Person or any of its property is subject, or (B) conflict with or result in the breach of, or constitute a default under, or result in or permit the termination or acceleration of, any contractual obligation of Customer, and (iv) do not require the consent of, authorization by, approval of, notice to, or filing or registration with, any Governmental Authority or any other Person, other than those that have been obtained or made and copies of which have been delivered to COLOAZ, and each of which on the date hereof is in full force and effect; (b) this Agreement has been—and any Schedule to which Customer is a party, upon delivery thereof, will have been—duly executed and delivered by Customer; (c) this Agreement is—and any Schedule to which Customer is or becomes a party, upon delivery thereof, will be—the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; (d) Customer will use the Services and COLOAZ Software in compliance with all Requirements of Law and in accordance with this Agreement and the Acceptable-Use Policy; (e) Customer has the right and authority to provide COLOAZ with the Customer Software, Customer Hardware and other materials supplied by Customer for the purpose of enabling COLOAZ to deliver the Services; and (f) Customer will not market, solicit, enable or sell, or attempt to market, solicit, enable or sell, any service also offered by COLOAZ to any other COLOAZ customers or partners located in any facility in which COLOAZ provides any Services without COLOAZ’s prior written consent.
5.2 By COLOAZ. COLOAZ represents and warrants to Customer that (a) COLOAZ will comply with all applicable laws, rules and regulations in delivering the Services (including, without limitation, any privacy and computer laws), and (b) COLOAZ has the right and authority to use and provide Customer with access to the COLOAZ Software in rendering the Services hereunder.
5.3 Disclaimer. Except as expressly set forth in this Agreement or a Schedule, COLOAZ makes no warranties, express or implied, and COLOAZ expressly disclaims all other warranties, including, without limitation, any implied warranties of merchantability, accuracy, security, fitness for a particular purpose, noninfringement or arising from a course of dealing, usage or trade practice. COLOAZ disclaims all warranties and indemnities with regard to third-party maintenance services. Customer is solely responsible for, and COLOAZ expressly disclaims, all representations, warranties and liabilities of any kind relating to the Customer Software and Customer Hardware. If Customer acquires Third-Party Software through COLOAZ, any representations or warranties applicable to such Software shall be included in a click-wrap, shrink-wrap or similar type of license agreement included with the Third-Party Software or set forth in a Software Schedule. COLOAZ does not and cannot control the flow or complete security of data to or from its network and other portions of the Internet. Such flow and security depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties (including other COLOAZ customers) can impair or disrupt Customer’s connections to the Internet (or portions thereof) or the security of Customer’s data. Although COLOAZ will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, COLOAZ cannot guarantee that such events will not occur. Accordingly, COLOAZ disclaims any and all liability resulting from or related to such events.
5.4 Limitation of Remedies. If COLOAZ breaches its obligations under this Agreement, as Customer’s sole and exclusive remedy, (a) COLOAZ, upon receipt of written notice from Customer specifying the nature of the default in reasonable detail, shall work diligently to cure the default at COLOAZ’s expense as soon as commercially reasonable, and, in any case, COLOAZ shall commence such cure within 5 days of receipt of the default notice from Customer or such lesser time as specified in the SLA or a Professional Services Schedule, (b) Customer shall have the service-credit remedies as specified in the applicable SLA, if any, so long as Customer is in good standing with no past due amount owed to COLOAZ under this Agreement, (c) Customer shall have the indemnification remedies specified in Sections 4.3 and 7.1 of this MSA and (d) Customer shall have the termination rights specified in Section 6.5 of this MSA.
5.5 COLOAZ Hardware or Software. Except with respect to any express warranties for Services related to COLOAZ Hardware or Software, Customer acknowledges and agrees that its use and possession of the COLOAZ Hardware and Software shall be subject to, and controlled by, the terms of any manufacturer’s or, if appropriate, supplier’s warranty, and Customer agrees to look solely to the manufacturer or, if appropriate, supplier with respect to all mechanical, service and other claims, and the right to enforce all warranties made by said manufacturer are hereby, to the extent COLOAZ has the right, assigned to Customer solely during the term of any applicable Schedule.
6.1 Expiration Date. Notwithstanding anything to the contrary herein, Customer shall duly execute a Schedule, agreement, amendment or attachment related hereto no later than the date that is 10 business days (the “Expiration Date”) after the date on which COLOAZ executes such document. COLOAZ reserves the right to withdraw any offer contained therein after the Expiration Date and before Customer executes such document.
6.2 Term. Unless terminated earlier pursuant to the terms hereof, this Agreement shall commence on the Effective Date and continue and/or be in effect so long as there is a Schedule in effect. The term of any Schedule shall commence in the first month of billing for the monthly recurring fees or the Fully Implemented Date, whichever is later, and continue for the period set forth in such Schedule.
6.3 Renewal. All Schedules shall automatically renew for successive terms (each a “Renewal Term”) equal in length to the then-current term. For Schedules that have a term of three months or more, either party may give notice of nonrenewal by providing the other party with written notice 90 days prior to the last day of such term. For Schedules that have a term that is less than three months, either party may give notice of nonrenewal by providing the other party written notice 30 days prior to the last day of such term.
6.4 Month-to-Month Term. Notwithstanding anything to the contrary in this Agreement, if, upon Customer’s notice of termination or nonrenewal of the then-current term, this Agreement continues on a month-to-month term or if Customer specifically requests a month-to-month term, then the monthly recurring fees for all such month-to-month Services shall automatically increase by 20% over the fees immediately prior to such month-to-month term and the payment terms shall be 15 days in advance of each month.
6.5 Termination of this Agreement. Either party may terminate a particular Schedule or this Agreement by written notice to the other party (a) if the other party breaches or fails to observe or perform any material term or condition of such Schedule or this Agreement and does not cure such breach or failure within 30 days after written demand (5 days in the case of late payment of fees) by the nonbreaching party specifying the nature of the breach in reasonable detail and stating such party’s intention to terminate; provided however, that such written demand must be sent within 30 days of the event or such right to terminate shall be deemed waived, unless such breach is continuing, or (b) otherwise as expressly provided in the SLA, Schedule, Acceptable Use Policy or this Agreement.
The failure to pay amounts owed under a Schedule when due shall be considered a material breach.
6.6 Effect of Termination. Upon termination of this Agreement or a Schedule, all rights and obligations of the parties under such terminated Agreement or Schedule shall cease, except for those rights and obligations that, by the terms of this Agreement or the applicable Schedule or the nature of the right or obligation, survive termination. Termination will not relieve either party of any obligations that arose prior to the effective date of the termination. Upon termination of this Agreement, (a) Customer must cease using, and COLOAZ will cease providing, any terminated Services and COLOAZ Software, (b) each party will return to the other party any Confidential Information of the other, (c) each party will make available to the other party any Hardware, Software or other property of such other party in its possession, provided that Customer may not access the Customer Hardware in COLOAZ’s facilities until Customer has fully satisfied its payment obligations to COLOAZ, and provided further that COLOAZ shall store the Customer Hardware in COLOAZ’s secured facilities and at Customer’s sole expense until the date that is the earlier of (i) 60 days after the effective termination date, after which COLOAZ may
(6.6.A) ) sell or otherwise dispose of such Customer Hardware in a manner it deems appropriate and (B) keep any proceeds resulting therefrom, and (ii) 15 days after the date on which Customer has fully satisfied its payment obligations to COLOAZ, and provided further that each party shall release and hold the other party harmless from and against any liability for damage of any kind whatsoever that may be caused by such party’s equipment during such migration, (d) COLOAZ shall remove all copies of Customer data from COLOAZ’s systems and property and (e) COLOAZ will provide, at Customer’s expense, reasonable termination/expiration assistance requested by Customer to facilitate the orderly transfer of Services and migration of Customer’s data and Customer Software to Customer or another third- party provider, for a period not to exceed 30 days, unless otherwise set forth in a separate Schedule executed by the parties.
COLOAZ is not obligated to retain or back up any Customer data following the termination of this Agreement or a Schedule. If Customer utilizes any of COLOAZ’s data-backup Services, Customer has the option to purchase a copy of all of Customer’s data, which copy shall be made after this Agreement has been terminated. In order for this backup to take place, (a) Customer must make a written request 30 days before the end of this Agreement and (b) a Schedule must be executed by Customer and COLOAZ for the performance of the backup Services, which Schedule shall set forth the names and locations of the specific folders to be backed up. Using HP Data Protector or similar software, COLOAZ shall archive such folders to a series of magnetic tapes and send them overnight using a commercial courier service to Customer. COLOAZ shall not be responsible for encrypting such tapes. After such backup has been performed and tested, COLOAZ shall dispose of the Customer data remaining within COLOAZ facilities pursuant to COLOAZ’s standard data-disposal procedures.
Within 10 days of the effective date of any termination of this Agreement or a Schedule, Customer shall pay COLOAZ all amounts owed under the terminated Schedules through such effective date of termination. In addition, and notwithstanding anything to the contrary in this Agreement, if Customer terminates a Schedule or this Agreement other than as expressly permitted hereunder, or if COLOAZ terminates a Schedule or this Agreement as a result of an uncured material breach or default by Customer, that, as just and reasonable compensation, Customer shall be obligated to pay any and all fees arising under such Schedule(s) or this Agreement through the end of the then- current term under the terminated Schedule(s); provided that, with regard to Professional Services, such amount will be based upon the estimated cost of the Professional Services. The parties herein agree that the above-mentioned compensation to COLOAZ, is a fair and actual calculation required to make COLOAZ whole.
7. INDEMNIFICATION AND LIMITATION OF LIABILITY.
7.1 Bodily Injury, Death and Property Damage. Each party agrees to indemnify the other party against any losses, liabilities, damages, costs or expenses (including reasonable attorneys fees) arising from a third-party claim for bodily injury, death or property damage (excluding intellectual-property claims) caused by the gross negligence or willful misconduct of the indemnifying party. To the extent that either party is liable for any damage to, or loss of, property for any reason, such liability will be limited solely to the then-current replacement value of the equipment, excluding lost data or software. The party seeking indemnification shall provide prompt written notice of a claim to the other party, allow the indemnifying party to control the defense and/or settlement of the claim and fully cooperate with the indemnifying party.
If the holder of a lien on any Customer Hardware exercises its right to remove such Hardware, COLOAZ shall be (a) indemnified and held harmless by Customer for any damages that such lienholder claims to have suffered from the improper removal of such hardware, (b) indemnified and held harmless from any and all claims resulting from the interruption or degradation of Services caused, directly or indirectly, by the removal of Customer Hardware and (c) entitled to liquidated damages in accordance with Section 6.6 and to any and all fees then owing.
7.2 LIMITATION OF LIABILITY. Except with respect to Customer’s obligation under Section
4.7 (Indemnification Obligations Related to Customer Data), in no event shall either party be liable for any indirect, consequential, incidental, special or punitive damages—including, without limitation, loss of use, interruption of business, loss of data or loss of profits—arising out of, or in any way connected with, this Agreement, the Services, any COLOAZ- or Customer Software or Third-Party Software even if each party has been advised of the possibility of such damages. Except with respect to each party’s obligations under Section 7.1 (bodily injury, death and property damage) and Customer’s obligations under Section 3.3 (Payment), Section 4.7 (Indemnification Obligations Related to Customer Data), and Section 6.6 (Effect of Termination), in no event will either party have liability in the aggregate under this Agreement, regardless of the form of the action, for any amount in excess of the total amount paid by Customer under the applicable Schedule during the preceding 12 months.
7.3 Basis of the Bargain; Failure of Essential Purpose. The parties acknowledge that (a) COLOAZ has set its prices, and the parties have entered into this Agreement, in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement and (b) the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if this Agreement is found to have failed its essential purpose.
COLOAZ Minimum Levels. COLOAZ agrees to keep in full force and effect during the term of this Agreement (a) commercial general-liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury and property damage and (b) workers’ compensation insurance in an amount not less than that required by applicable law. COLOAZ agrees that it will ensure and be solely responsible for ensuring that its contractors and subcontractors maintain insurance coverage at levels no less than those required by applicable law and customary in COLOAZ’s and its agents’ industries.
8.1 Customer Minimum Levels. To provide customers with physical access to facilities operated by COLOAZ and equipment owned by third parties, COLOAZ’s insurers require COLOAZ to ensure that COLOAZ customers maintain adequate insurance coverage. In furtherance thereof, Customer agrees to keep in full force and effect, during the term of this Agreement, (a) commercial general-liability insurance in an amount not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate for bodily injury and property damage and (b) workers’ compensation insurance in an amount not less than that required by applicable law. Customer agrees that it will ensure, and be solely responsible for ensuring, that its agents (including contractors and subcontractors) maintain insurance coverage at levels no less than those required by applicable law and customary in Customer’s and its agents’ industries.
9.1 Relationship of Parties. Nothing in this Agreement will be construed to imply a joint venture, partnership or agency relationship between the parties, and COLOAZ will be considered an independent contractor when performing Services under this Agreement.
9.2 Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their permitted successors and assigns. Customer shall not have the right to assign this Agreement without the prior written consent of COLOAZ; provided that Customer shall be obligated to assign this Agreement to a successor in interest in the event of a change of control resulting from a merger, sale of stock or sale of all or substantially all of the assets of Customer relating to the Services.
9.3 Affiliates and Contractors. Customer may extend the benefits of this Agreement only to its Affiliates; provided, however, that, in such event, Customer shall be obligated to pay COLOAZ any additional fees based on the number of users, changes to requirements for the hosting environment, as further specified in an SLA, or other changes to requirements that increase the cost of delivery of Services by COLOAZ. Customer shall ensure that its Affiliates and authorized third-party contractors comply with the terms and conditions of this Agreement, and Customer shall be liable for the acts and omissions of such parties. COLOAZ may use subcontractors in delivering the Services.
9.4 Complete Understanding; Modification. This Agreement constitutes the entire agreement between the parties relating to its subject matter, supersedes all prior agreements and understandings between the parties, oral or written, with respect to its subject matter and may not be changed unless mutually agreed upon in writing by both parties.
9.5 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining provisions shall remain in full force and effect.
9.6 Schedules. A Schedule or amendment to this MSA may add new or additional terms and conditions. Except as provided above, in the event of any conflict or inconsistency between the provisions of this MSA and those of a Schedule, the Schedule shall prevail.
9.7 Notices. Except where expressly stated otherwise in this Agreement, all notices, requests and demands expressly contemplated by this Agreement shall be in writing and shall be deemed to have been duly given (a) when hand-delivered to the addressee, (b) when transmitted by confirmed facsimile or e-mail, with a copy provided by another means specified in this Section 9.7, (c) one business day after being given to an overnight courier with a reliable system for tracking delivery or
(d) 3 business days after the day of mailing, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid. All notices shall be sent to the addresses and directed to the attention of the parties set forth on the first page of this MSA. Each party shall promptly notify the other party in writing of a change of address.
9.8 Counterparts; Facsimile and Electronic Signatures. This Agreement may be executed in counterparts. For purposes of this Agreement, a facsimile, PDF or other electronic version of a party’s signature shall be deemed an original signature.
9.9 Headings. Section headings in this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not affect the meaning or interpretation of this Agreement.
9.10 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be deemed to be a contract made under, and shall be construed in accordance with, the laws of the State of Arizona, excluding its conflict-of-law rules. In addition, each party, on behalf of itself and its successors and assigns, agrees that the State of Arizona shall be the exclusive venue (to the extent that subject-matter jurisdiction exists) for all causes of action arising out of this Agreement. This consent shall not be deemed a waiver of the right to remove any litigation to a federal court in Arizona. COLOAZ and Customer agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9.11 Force Majeure. Except with respect to any payment obligations, neither party will be liable for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, and, except as otherwise provided in a Schedule, will be entitled to a reasonable extension of time to remedy any such delay or failure to perform.
9.12 Waiver or Failure To Act. No waiver will be effective unless documented in a writing signed by an authorized representative of the party against which enforcement of the waiver is sought. The failure of either party to insist upon strict performance of any of the terms or provisions of this Agreement, or the exercise of any option, right or remedy contained herein, shall not be construed as a waiver of any future application of such term, provision, option, right or remedy, and such term, provision, option, right or remedy shall continue and remain in full force and effect.