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Martin Strauss Technologies Master Services Agreement
This Master Services Agreement is between Martin Strauss Technologies, LLC, a Deleware Corporation d/b/a MST Network Services
(“Martin Strauss Technologies”) and the person (individual or legal person) whose name appears on the signature line of the
Agreement or on any document that incorporates the Agreement by reference (“Customer”) and is effective on the
1. Defined Terms. Capitalized terms shall have the following meanings or the meanings
assigned to them in the other Sections of the Agreement:
“Agreement” shall mean the Service Order Form(s), this Master Services Agreement, the Service Level
Agreement, any Martin Strauss Technologies Addendum to this Master Services Agreement, and the AUP, collectively. Any conflict between the
documents shall be resolved by reading the documents in the foregoing order of precedence.
“AUP” shall mean Martin Strauss Technologies' Acceptable Use Policy, posted on the Effective Date at
as it may be amended from time to time in accordance with Section 6 (AUP) of this Master Services Agreement.
“Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., central U.S. time, excluding
any day that banks in the United States are required or permitted to be closed.
“Effective Date” shall mean the day that Customer accepts the Agreement, either by signing
Martin Strauss Technologies' Service Order Form or this Master Services Agreement, or by using the Service.
“Martin Strauss Technologies Supporttm” shall mean: (i) management of the Services by a service
delivery team that includes a team leader, account manager, and support specialists with training and experience in
hosting systems, (ii) availability of live support twenty four hours per day, seven days per week, year round;
and (iii) use of the Martin Strauss Technologies Customer portal.
“Managed Hosting Service” shall mean the provision of the services described in the Service Order Form
and Service Level Agreement, and Martin Strauss Technologies Support.
“Service Commencement Date” shall mean the date Martin Strauss Technologies generates an e-mail message to Customer
that provides access codes and passwords for use in connection with the Managed Hosting Service.
“Service Level Agreement” shall mean the Service Level Agreement incorporated by reference in the
Service Order Form, as it may be amended from time to time by written agreement of the parties.
“Service Order Form” shall mean the Martin Strauss Technologies Service Order Form accepted by Customer, as it may be
amended from time to time in accordance with the Agreement, and any subsequent or additional Service Order Forms that
incorporate this Master Services Agreement by reference.
“Service” or “Services” shall mean the Managed Hosting Service and any Supplemental
Service(s) (as defined in Section 3) provided by Martin Strauss Technologies to Customer pursuant to the Agreement.
2. Term. The initial service term of the Agreement shall begin on the Service Commencement
Date and continue for the period stated in the Service Order Form (the “Initial Term”). Martin Strauss Technologies and
Customer may agree to one or more additional terms having a fixed number of months to follow the expiration of the Initial
Term (each a “Renewal Term”). If upon expiration of the Initial Term no Renewal Term has been
established by agreement of the parties, the Agreement shall automatically renew for successive extended terms of
thirty (30) days each (each an “Extended Term”) until Martin Strauss Technologies or Customer provides the other
with thirty (30) days advance written notice of termination. The Initial Term applicable to any Service Order Form
executed subsequent to the Effective Date shall begin on the Service Commencement Date stated in that Service Order
Form and continue for the period stated in that Service Order Form.
3. Services. Contingent upon Customer’s satisfaction of Martin Strauss Technologies' credit
approval requirements and on Martin Strauss Technologies' verification of the information provided by Customer for the purpose of
establishing the Service, Martin Strauss Technologies agrees to provide the Managed Hosting Service in accordance with the terms of the
Agreement. In addition, Martin Strauss Technologies may from time to time perform certain additional services on an hourly fee basis
(the “Supplemental Services”), such as those services described in Martin Strauss Technologies' Spheres of Support
customization of the Managed Hosting Service at Customer’s request, services described in the AUP, and other
professional technical services. Supplemental Services will be performed only on Customer’s advance approval and
will be invoiced at Martin Strauss Technologies' published rates or other rates approved in advance in writing by Customer, provided,
however, that Martin Strauss Technologies may perform Supplemental Services for the fees stated in the AUP as necessary to remediate problems
caused by AUP violations without obtaining advance Customer consent.
(a) Fees. Customer agrees to pay the monthly and set up fees stated in the Service Order Form and Martin Strauss Technologies'
standard fees for Supplemental Services as described in Section 3 (Services) above.
Martin Strauss Technologies' first invoice shall include set up fees and a prorated portion of the monthly recurring fee from the
Service Commencement Date to the last day of the calendar month. Martin Strauss Technologies may require payment in full of its first invoice
before beginning the Service. Following the Service Commencement Date, monthly recurring fees shall be invoiced in advance
on or around the first day of each calendar month, and are due upon receipt. Invoices for Supplemental Services, excess
data transfer, reinstatement of service, switching and upgrade fees and other non-recurring amounts are due on receipt.
Customer acknowledges that it is responsible for excess data transfer fees that may result from a denial of service or other
attack on its Martin Strauss Technologies servers. Credits due under the Service Level Agreement may be given, at Martin Strauss Technologies' option,
against the invoice for the month in which the event(s) occurred or the invoice for the following month. Payments must be
made in United States dollars. Martin Strauss Technologies may charge interest on amounts that over due by ten (10) days or more at the
lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Martin Strauss Technologies may suspend any or all Services
on four (4) Business Days’ advance notice to Customer if payment for any Service is overdue. Fees not disputed
within one hundred eighty (180) days of due date are conclusively deemed accurate. Customer agrees to pay Martin Strauss Technologies'
then current reinstatement fee following a suspension of service for non-payment or an AUP violation investigation.
Customer agrees to pay Martin Strauss Technologies' reasonable costs of collection of overdue amounts, including collection agency
fees, attorney fees and court costs.
(b) Early Termination. Customer acknowledges that the amount of the monthly recurring fee for the Managed Hosting
Service is based on Customer’s agreement to pay the fee for the entire Initial Term. In the event Martin Strauss Technologies
terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 13 (Termination), or
Customer terminates the Managed Hosting Service other than for Martin Strauss Technologies' breach in accordance with Section 13
(Termination), all fees due under the Agreement, including the monthly recurring fees for the remaining portion of the
Initial Term, are due on the Business Day following termination of the Managed Hosting Service.
(c) Taxes. Customer shall remit to Martin Strauss Technologies all sales, VAT or similar tax imposed on the provision of the
Services (but not in the nature of an income tax on Martin Strauss Technologies), regardless of whether Martin Strauss Technologies fails to collect the
tax at the time the related Services are provided. If Customer is located in the European Union, Customer will remit
VAT at the appropriate rate unless Customer provides Martin Strauss Technologies with a valid VAT number or evidence acceptable to
Martin Strauss Technologies that Customer is using the Services for a business purpose.
5. Customer Obligations. Customer agrees to do all of the following at its expense:
(a) Security Precautions. Use reasonable security precautions in connection with its use of the Services and, if
Customer resells Martin Strauss Technologies' services, require its customers and end users to use reasonable security precautions;
(b) Data Back Up. Notwithstanding any agreement by Martin Strauss Technologies to provide data storage or back up services,
create and maintain a current copy of all content (including software, data and other information) stored on
Customer’s Martin Strauss Technologies servers or otherwise provided to Martin Strauss Technologies, and store the copy in a reasonably secure location
other than a Martin Strauss Technologies server or location;
(c) Law, AUP. Comply with laws applicable to Customer’s use of the Services and with Martin Strauss Technologies' AUP,
and if Customer resells Martin Strauss Technologies' Service, require its customers and end users to comply with applicable law and
Martin Strauss Technologies' AUP; and
(d) Investigation of AUP. Cooperate with Martin Strauss Technologies' reasonable investigation of any suspected violation of
6. AUP. Customer agrees that Martin Strauss Technologies may, in its reasonable commercial judgment consistent
with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and
conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier of
Martin Strauss Technologies' notice to Customer that an amendment has been made, or the beginning of any Renewal Term or Extended
Term. However, if: (i) the amendment would materially and adversely affect Customer, (ii) Customer provides Martin Strauss Technologies
with a written notice describing its objection to the amendment in reasonable detail within five (5) Business Days of
the effective date of the amendment, and (iii) Martin Strauss Technologies does not agree to waive the amendment as to Customer within
five (5) Business Days of Customer’s notice, then Customer may terminate the Agreement without liability as
provided in Section 13 (a)(iv) (Termination).
7. Suspension of Service. Customer agrees that Martin Strauss Technologies may suspend Services to Customer
without notice and without liability if: (i) Martin Strauss Technologies reasonably believes that the Services are being used in violation
of the AUP; (ii) Customer fails to cooperate with any reasonable Martin Strauss Technologies investigation of any suspected violation of
the AUP; (iii) there is a denial of service attack on Customer’s servers or other event for which Martin Strauss Technologies
reasonably believes that the suspension of Services is necessary to protect its network or its other customers; or (iv)
as requested by a law enforcement or government agency. Information on Martin Strauss Technologies' servers will be unavailable
during a suspension of Services.
(a) Reciprocal. Martin Strauss Technologies represents and warrants to Customer, and if Customer is not an individual, Customer
represents and warrants to Martin Strauss Technologies, that: (i) it has the power and authority and the legal right to enter into the
Agreement and to perform its obligations under the Agreement; (ii) it has taken all necessary action on its part to
authorize the execution and delivery of the Agreement; and, (iii) the execution and delivery of the Agreement and the
performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not
conflict with or constitute a default under its charter documents. If Customer is an individual, Customer represents
and warrants to Martin Strauss Technologies that he or she is at least 18 years of age.
(b) Customer. Customer represents and warrants to Martin Strauss Technologies that: (i) the information Customer has provided and will
provide to Martin Strauss Technologies for purposes of establishing and maintaining the Services is accurate; (ii) Customer will 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 Part 740 of the United States Export Administration Regulations, and (iii) Customer shall not provide
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 any embargoed or highly restricted country under United States Export Regulations, which include as of
August 2005 Cuba, Iran, Libya, North Korea, Sudan or Syria.
9. Unauthorized Use of Service. Customer is generally responsible for the security of the
servers provided pursuant to this Agreement, and Martin Strauss Technologies agrees only to perform the specific security services described
in the Service Order Form or other portion of the Agreement. Customer shall be responsible for any unauthorized use of
the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such
unauthorized use results from Martin Strauss Technologies' failure to perform its obligations under the Agreement.
10. Indemnification. The parties agree that the indemnification obligations defined in
this Section shall be in lieu of and supersede any indemnification obligations that may otherwise exist by law.
(a) Customer. Customer agrees to indemnify and hold harmless Martin Strauss Technologies, Martin Strauss Technologies' affiliates, and each of
their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands,
liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and
disbursements of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party
under any theory of legal liability arising out of or related to: (i) the actual or alleged use of the Services in
violation of: (A) the AUP, (B) any other portion of the Agreement, or (C) applicable law, by any person regardless of
whether such person has been authorized to use the Services by Customer, except for unauthorized use that results from
Martin Strauss Technologies' failure to perform its obligations under the Agreement, or (ii) any dispute regarding the control of
Customer’s account with Martin Strauss Technologies. Without limitation of the foregoing, Customer shall pay Martin Strauss Technologies $250.00 per
hour for time reasonably spent by Martin Strauss Technologies personnel to respond to third party complaints regarding Customer’s
use or alleged use of the Services in violation of the AUP, including complaints under the Digital Millenium Copyright
(b) Reciprocal. Each party agrees to indemnify and hold harmless the other party, the other party’s
affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any
and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in
interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys’ fees)
brought by a third party under any theory of legal liability arising out of or related to the indemnifying party’s
actual or alleged infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark,
or other proprietary right.
(c) Procedures. A party seeking indemnification under this Section shall provide prompt notice of its claim for
indemnification to the indemnifying party; provided, however, that failure to give prompt notice shall not affect the
indemnifying party’s obligations under this Section unless and to the extent that the failure materially prejudices
the defense of the matter. The indemnified party will have the right to select counsel to defend it in respect of any
indemnified matter under this Section; provided, however, that the counsel selected must be reasonably satisfactory to
the indemnifying party. The indemnified party will keep the indemnifying party informed of the status of any litigation
or dispute resolution procedure, will give reasonable consideration to the suggestions and requests of the indemnifying
party with respect to the conduct of the litigation or dispute resolution procedure, and will not settle any matter
covered by this Section without the prior consent of the indemnifying party, which shall not be unreasonably withheld.
Notwithstanding anything in this Section to the contrary, if the indemnifying party is indemnifying multiple persons
related to the subject matter of the indemnification, the indemnifying party shall have the right to seek consolidation
of all such actions and to select counsel to defend the actions. Amounts due under this Section shall be paid as
incurred and may be offset against other amounts due under the Agreement.
11. Disclaimer of Warranties.
Martin Strauss Technologies DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF
CUSTOMER’S PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, Martin Strauss Technologies DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE
AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. ALL GOODS AND SERVICES ARE PROVIDED ON AN
“AS IS” BASIS, EXCEPT AS EXPRESSLY STATED IN THE SERVICE LEVEL AGREEMENT OR OTHER PORTION OF THE AGREEMENT.
12. Limitation of Damages. The parties agree that the allocations of risk made in
this Section are reasonable and that they would not enter into the Agreement without these limitations on liability.
THE CREDITS DESCRIBED IN THE SERVICE LEVEL AGREEMENT AND SERVICE ORDER FORM ARE CUSTOMER’S SOLE REMEDIES FOR
Martin Strauss Technologies' FAILURE TO MEET THE GUARANTIES AND WARRANTIES STATED IN THOSE DOCUMENTS, PROVIDED THAT THIS PROVISION
DOES NOT LIMIT CUSTOMER’S RIGHT TO TERMINATE THIS AGREEMENT AS PROVIDED IN SECTION 13 (TERMINATION) BELOW IF
SUCH FAILURE(S) CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT.
EXCEPT AS DESCRIBED IN THE SERVICE LEVEL AGREEMENT, Martin Strauss Technologies SHALL NOT BE LIABLE TO THE CUSTOMER FOR HARM CAUSED BY
OR RELATED TO CUSTOMER’S USE OF THE SERVICES OR INABILITY TO USE THE SERVICES UNLESS THE HARM WAS CAUSED BY
Martin Strauss Technologies' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE,
ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Martin Strauss Technologies AND ANY OF
ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND
INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE MANAGED HOSTING SERVICE FOR
THE THREE MONTHS PRIOR TO THE OCCURENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
NO CLAIM MAY BE ASERTED BY EITHER PARTY AGAINST THE OTHER PARTY WITH RESPECT TO ANY EVENT, ACT OR OMISSION THAT OCCURRED
MORE THAN TWO (2) YEARS PRIOR TO SUCH CLAIM BEING ASSERTED.
(a) Customer. The Agreement may be terminated by Customer prior to the expiration of the Initial Term, any Renewal
Term, or Extended Term without liability (except for amounts due for Services through the effective date of termination)
as follows: (i) Martin Strauss Technologies fails in a material way to provide the Managed Hosting Service in accordance with the terms
of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the
failure in reasonable detail, (ii) Martin Strauss Technologies materially violates any other provision of the Agreement and fails to cure
the violation within thirty (30) days of Customer’s written notice describing the violation in reasonable detail,
or (iii) as provided in Section 6 (AUP) upon thirty (30) days advance written notice in
the event of an amendment to the AUP that materially and adversely affects Customer and that is not waived by Martin Strauss Technologies.
(b) Martin Strauss Technologies. The Agreement may be terminated by Martin Strauss Technologies prior to the expiration of the Initial Term, any
Renewal Term, or Extended Term, without liability as follows: (i) upon four (4) Business Days notice if Customer is
overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of
the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from
Martin Strauss Technologies describing the violation in reasonable detail; (iii) upon one (1) Business Days notice if Customer’s
Service is used in violation of a material term of the AUP more than once; or (iv) upon reasonable notice if Martin Strauss Technologies
is threatened with a legal claim for copyright or patent infringement related to the provision of the Service and is
unable to modify the Service in a way that avoids an ongoing risk of liability.
(a) Confidential Information. Confidential Information is: (i) with respect to Martin Strauss Technologies, Martin Strauss Technologies'
unpublished prices for services, audit and security reports, server configuration designs and other proprietary
technology, (ii) with respect to Customer, content transmitted to or from, or stored by Customer on, Martin Strauss Technologies'
servers, and (iii) with respect to both parties, other information that is conspicuously marked as
“confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at
the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure;
but excluding any information which is independently developed by a non-disclosing party as shown by such party’s
written business records, is or becomes generally available to the non-disclosing party or the public other than through
violation of the Agreement, or is required to be disclosed by law or regulation. Each party agrees not to disclose the
other’s confidential information to any third party except to its service providers, agents and representatives
who need to know the information to represent or advise it with respect to the subject matter of the Agreement; and
provided that such service providers, agents and representatives are bound by confidentiality restrictions at least as
stringent as those stated in the Agreement.
(b) Martin Strauss Technologies' Use of Customer’s Name. Customer agrees that Martin Strauss Technologies may publicly disclose that
Martin Strauss Technologies is providing services to Customer and may include Customer’s name in promotional materials, including
press releases and on Martin Strauss Technologies' Web site. Neither party may publicly use the other party’s logo or other
trade or service mark without that party’s permission.
(c) Requests for Customer Information. Notwithstanding anything to the contrary above, Customer agrees that
Martin Strauss Technologies may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any
of Customer’s customers or end users that Martin Strauss Technologies believes violates applicable law, and (ii) provide any
information, including Confidential Information, it has about Customer or any of its customers or end users in response
to a formal or informal request from a law enforcement or government agency. Martin Strauss Technologies may provide any information,
including Confidential Information, it has about Customer or its customers or end users in response to a formal request
in a civil action that on its face meets the requirements for such a request.
15. Software. Customer agrees not to remove, modify or obscure any copyright, trademark
or other proprietary rights notices that appears on any software provided by Martin Strauss Technologies. Customer may not reverse engineer,
decompile, or disassemble any Martin Strauss Technologies provided software, except and only to the extent that such activity is expressly
permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any “open source”
license that governs the use of the software. If the Service Order Form indicates that Martin Strauss Technologies uses Microsoft
software to provide the Services, Customer agrees to the Customer License Terms for Microsoft software that appear at
and agrees that if it resells the Services it will require each of its customers to agree to those terms.
16. Third Party Products. As a convenience to Customer, Martin Strauss Technologies may from time to
time arrange for Customer’s purchase or license of third party software, services, and other products not included
as part of the Service, and/or may provide support to Customer in relation to those products. Martin Strauss Technologies MAKES NO
REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND THEY ARE
PROVIDED “AS IS.” Customer’s use of third party software, services, and other products is governed
by the terms of any license or other agreement between Customer and the third party.
17. Notices. Notices to Martin Strauss Technologies under the Agreement shall be given in writing via
first class mail or established and well-known express courier to Legal Counsel, Martin Strauss Technologies Managed Hosting, at
Martin Strauss Technologies' principal office address posted on www.connaccess.com, currently:
100 NE 80th Terrace, Suite 3000
Miami, FL, 33180
Notices to Customer shall be given via electronic mail to the individual designated as the Contact on the Service Order
Form or by means reasonable under the circumstances, including an e-mail to a known contact. Notices are deemed received
on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered.
(a) Solicitation of Martin Strauss Technologies Employees. Customer agrees that it shall not solicit any Martin Strauss Technologies employee with
whom Customer has had direct contact in connection with this Agreement for employment with Customer or any other person
during the term of this Agreement and for twelve (12) months following termination of this Agreement. Notwithstanding the
foregoing, Customer shall not be precluded from (i) hiring an employee of Martin Strauss Technologies who independently approaches Customer,
or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in
publications or on Web sites for general circulation. In the event of a violation of this provision, in addition to
any other right Martin Strauss Technologies may have at law or in equity, Customer shall make a one-time payment to Martin Strauss Technologies in the amount
of fifty percent (50%) of the employee’s base salary for one year.
(b) Ownership. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in
its trade secrets, inventions, copyrights, and other intellectual property, and that Martin Strauss Technologies shall own any intellectual
property that it may develop in the course of performing the Services. Customer does not acquire any ownership interest
or rights to possess Martin Strauss Technologies' server(s) or other hardware, and has no right of physical access to the hardware.
Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses or
address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name)
and agrees that Martin Strauss Technologies may take steps to change or remove any such IP addresses.
(c) Governing Law, Jurisdiction, Venue. The Agreement shall be governed by the laws of the State of Texas,
exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement
shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL
DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN BEXAR COUNTY, TEXAS,
AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
(d) Modifications. Except for the following, the Agreement may be amended only by a formal written agreement
signed by both parties: (i) amendments of the AUP as described in Section 6, above, (ii) a Renewal Term may be
agreed by means of Martin Strauss Technologies' online renewal process, and (iii) changes to the “Server Specifications,”
“Software and Services,” or fees section of an existing Service Order Form may be made by an exchange of
correspondence (including electronic mail) that includes both parties’ express consent to the change. The terms on
either party’s purchase order or other business forms are not binding on the other party unless they are expressly
incorporated into a formal written agreement signed by both parties.
(e) Non-Waiver. A party’s failure or delay in enforcing any provision of the Agreement will not be
deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement.
A party’s waiver of any of its rights under the Agreement is not a waiver of any of its other rights with respect
to a prior, contemporaneous or future occurrence, whether similar in nature or not.
(f) Captions. The captions in the Agreement are not part of the Agreement, but are for the convenience of the
(g) Counterparts. Any documents signed in connection with the Agreement may be signed in multiple counterparts,
which taken together will constitute one original.
(h) Survival. The following provisions will survive expiration or termination of the Agreement: fees, indemnity
obligations, confidentiality obligations, provisions limiting liability and disclaiming warranties, provisions regarding
ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are
intended to survive termination of the Agreement.
(i) Force Majeure. Neither party shall be in default of any obligation under the Agreement if the failure to
perform the obligation is due to any event beyond that party’s control, including, without limitation, significant
failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection,
epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which
precautions are not generally taken in the industry.
(j) No Third Party Beneficiaries. There are no third party beneficiaries to the Agreement. Neither insurers nor
the customers of resellers are third party beneficiaries to the Agreement.
(k) Severability. In the event any term of this Agreement is held unenforceable by a court having jurisdiction,
the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the
unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
(l) Relationship Between the Parties. The parties are independent contractors and not partners or joint
venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power
to bind the other on any agreement. The Agreement is non-exclusive. Martin Strauss Technologies may provide service to any person,
including a competitor of Customer.
(m) Assignment. Customer may not transfer the Agreement without Martin Strauss Technologies' prior written consent.
Martin Strauss Technologies' approval for assignment is contingent on the assignee meeting Martin Strauss Technologies' credit approval criteria.
Martin Strauss Technologies may assign the Agreement in whole or in part.
(n) Agreement. The Service Order Form(s), Service Level Agreement, Martin Strauss Technologies' AUP, and any Martin Strauss Technologies Addendum
to this Master Services Agreement accepted by Customer are hereby incorporated in this Master Services Agreement by
reference and together collectively constitute the Agreement. The Agreement is the complete and exclusive agreement
between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or
communication, written or oral.
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