server and network lease Master services agreement

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this MSA and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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Section 1 DEFINED TERMS

1.01 In addition to other capitalized terms that may be defined in this MSA, the following terms are defined as follows:

1. “Agreement” means this MSA, and any Work Order (as hereinafter defined) as well as any subsequently executed Work Order), the Service Level Agreement (“SLA”), AUP, and any other documents that are expressly incorporated/referenced herein.

2.  “AUP” means Provider’s Acceptable Use Policy.

3. “Customer Data” means all data, content, files, records, or other information, in any form, that is transmitted to, stored on, or processed through the Services by or on behalf of Customer or its users, including any personal data or confidential information.

4. “Feedback” has the definition set forth in Section 8.05.

5. “Force Majeure Event” means any event or circumstance beyond the reasonable control of the affected Party, including but not limited to: acts of God, fire, flood, earthquake, storm, lightning, epidemic or pandemic, material shortages, unavailability or delay in the supply chain (not caused by the affected Party’s failure to timely order), equipment failures, transportation delays, war or acts of war, civil unrest, riots, acts of terrorism, labor strikes or disputes (other than those involving the affected Party’s own workforce), sabotage, failure of third parties to grant necessary rights or permits, governmental orders, changes in law or regulation, acts or omissions of vendors or suppliers, or any other similar event or circumstance outside the affected Party’s commercially reasonable control.

6. “Maintenance” means Provider’s maintenance activities performed on the Network, whether scheduled or emergency in nature.

7. “Network” means Provider’s autonomous telecommunications network, including all data equipment owned or leased by Provider within each active POP, all wiring and power supplies within each active POP owned or controlled by Provider, and all telecommunications circuits owned or leased by Provider between active POPs. The Network expressly excludes any equipment owned, leased, or controlled by Customer; telecommunications circuits or networks (including local access loops) between a POP and a Customer location or between Customer locations; interconnections between Customer’s network and the Network; and any third-party networks or telecommunications circuits not owned or controlled by Provider.

8. “Order Form” means any order successfully processed through Provider’s website portal and/or any written agreement signed between Provider and Customer to order Services in accordance to any specific terms and conditions, to include an agreement reached via email where both parties confirm the terms.

9. “POP” means Provider point of presence.

10. “Proprietary Rights” means any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, branding features, and confidential and proprietary information protected under contract or otherwise under law, and other similar rights or interests in intellectual or industrial property.

11. “Provider Materials” means all software, documentation, tools, processes, know-how, algorithms, materials, and technology developed or provided by Provider in connection with the Services, including but not limited to the Documentation, templates, user interfaces, and proprietary scripts or configurations, whether pre-existing or created in connection with the Services.

12. “SLA” means the Service Level Agreement (SLA) posted at 639Cloud.com or as specifically otherwise agreed between Customer and Provider in any Order Form.

13. “Services” means a connection to the Internet (IP Connectivity), and/or Content Delivery Network (CDN), and/or Cloud Services, and/or Cloud Storage and/or Colocation services and/or Equipment Rental services and/or Managed services and/or Software Licenses Rental services.

14. “Status” means the operational state of the Network, including any known faults, outages, or maintenance windows that may affect Service availability or performance.

15. “Work Order” or “Work Orders” has the meaning set forth in Section 2.01(a).

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‍Section 2 SERVICES

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2.01 GENERAL

1. During the term of the Agreement, Customer may purchase and/or lease Services from Provider, as appropriate. Customer acknowledges that its decision to purchase or lease Services is made solely at its own discretion. The Services shall be ordered through orders made on Provider’s website either directly by Customer or at Customer’s direction or in a separate executed document (each, a “Work Order” and collectively, “Work Orders”). Each Work Order shall be deemed incorporated into this MSA.

2. Each Work Order may contain specific terms and conditions governing Customer’s use of the Services described therein. However, the terms and conditions of the Agreement shall apply to each Work Order. In the event of a conflict between the Agreement and a Work Order, the terms of the Work Order shall prevail; provided, however, that such conflict shall not invalidate any agreement, including Customer’s obligation to pay for the Services as specified in the Work Order, which is further affirmed in Section 4 of this MSA.

3. Provider, its affiliates, and/or its subcontractors may perform the Services under the Agreement.

2.02 Scope. The Provider agrees to provide the Services as described in one or more “Work Order” or "Work Orders", subject to the terms of the Agreement.

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2.03 Service Level Agreement. Provider shall use commercially reasonable efforts to meet the service levels specified in the applicable Service Level Agreement (“SLA”), but such service levels shall not constitute a warranty or guarantee. The specific performance metrics, service levels, and remedies in the event of any service deficiencies are set forth in the SLA. Provider shall use commercially reasonable efforts to ensure that all Services provided under the Agreement conform to the standards and thresholds specified in the SLA, but such standards shall not constitute a warranty or guarantee. In the event of any inconsistency between the provisions of the Agreement and the SLA, the terms of the SLA shall prevail solely with respect to the Services' performance standards. Provider reserves the right to amend the SLA from time to time and shall only be obligated to post the changes to its relevant website. 

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2.04 Modifications. Provider reserves the right to modify, suspend, or discontinue any part of the Services at its sole discretion, provided that it gives Customer reasonable prior notice.

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2.05 Incorporation by Reference. The following agreements, policies, and instruments are hereby incorporated by reference into this MSA as if fully set forth herein:

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1. the SLA;

2. the AUP;

3. the Anti-Spam Policy;

4. the Cookie Policy; and 

5. Privacy Policy.

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For clarity, while the Provider’s primary website is www.639cloud.com, certain incorporated policies may be hosted on a separate affiliate website, www.zcloud.639cloud.com, which is linked and referenced from www.639cloud.com. Customer agrees and acknowledges that Customer has reviewed and accepted the terms of each incorporated agreement, policy, or instrument, as the case may be. Customer acknowledges that Customer has had the opportunity to review the above agreements, policies, or instruments, as the case may be, prior to entering into this MSA, and that continued use of the Services constitutes acceptance of any updates to such agreements, policies, or instruments, as the case may be, provided that material changes will be communicated in writing or by electronic notice. 

‍Section 3 TERMS AND TERMINATIONS

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3.01 Term. The Agreement shall commence on the Effective Date and continue in effect until terminated as provided herein or as otherwise stated in the applicable Work Order. If no Work Order has been executed but the Customer has received Services from Provider, the Agreement shall remain in effect indefinitely, subject to termination as provided in this Section 3. 

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3.02 Termination by Provider. Provider may terminate the Agreement or any Work Order (a) for convenience, upon thirty (30) days’ prior written notice to Customer, or (b) immediately upon written notice if Customer breaches any material term of the Agreement or any Work Order.

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3.03 Termination by Customer. Customer may terminate the Agreement or any Work Order only for cause, upon thirty (30) days’ prior written notice if Provider materially breaches its obligations under the Agreement or any Work Order and fails to cure such breach within thirty (30) days of receiving written notice from Customer specifying the nature of the breach.

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3.04 Termination for Default.

1. By Provider. Customer shall be in default under the Agreement or any Order Form if it fails to pay any undisputed amount due within fourteen (14) days after receipt of written notice of nonpayment from Provider.

2.  By Either Party. Either Party shall be in default under the Agreement or any Work Order if it fails to perform any of its material obligations and such failure is not cured within fourteen (14) days after written notice from the non-defaulting Party.

3. By Customer. Provider shall be in default under the Agreement or any Work Order if it fails to perform any of its material obligations and such failure is not cured within thirty (30) days after written notice from Customer.

3.05 Termination Process and Effect.

1. Upon termination or expiration of the Agreement or any Work Order:
   1. Provider shall cease providing the applicable Services (except as may be required for data transition under subsection (b));
   2. All of Custoner's payment obligations incurred prior to the effective date of termination (including any early termination fees set forth in a Work Order) shall become immediately due to payable;
   3. Unless the termination is by Consumer under Section 3.03, all remaining monthly Service Charges through the end of the Term indicated on any applicale Order Form shall accelerate and become immediately due; and
   4. Customer shall, within ten (10) days of termination, verify that all Custoner Data has been copied or removed from Provider's servers. Thereafter, Provider will delete all Customer data, software, configurations, and content, including mirrored or sharded data, unless rentention is required by applicable law or court order.
2. Provider shall have no obligation to provide transition or termination assistance, except as expressly set forth herein.
3. If Provider is terminating data storage services, it shall allow Customer at least ten (10) days to copy its data to another service provider.

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3.06 Outstanding Amounts. If Provider terminates the Agreement or any Work Order pursuant to Section 3.02(b), all outstanding amounts due shall be paid by Customer within fourteen (14) days following the effective date of termination. Such termination shall not prevent Provider from pursuing any other legal or equitable remedies available.

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3.07 Survival Obligations. Termination or expiration of the Agreement or any Work Order shall not affect either Party’s rights or obligations with respect to any accrued payment obligations or any then-existing default. The non-defaulting Party may pursue any and all remedies available at law or in equity, provided notice and an opportunity to cure have been given in accordance with this Section 3.

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3.08 Termination Notices.

1. Provider may deliver notices of termination to the Customer’s designated contact by email or other method as set forth in the MSA.
2. All notices of termination by Customer must be sent in writing to sales@639Cloud.com and must reference the specific Service being terminated. A separate notice is required for each Service.

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‍Section 4 LICENSES; USE OF SERVICES

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4.01 Licensing and Legal Compliance. Customer represents and warrants that it has obtained, and shall maintain throughout the term of each applicable Order Form, all necessary licenses, permits, consents, and authorizations (collectively, the “Licenses”) required to use and/or resell the Services. In the event Customer fails to maintain any required Licenses, Provider may terminate the affected Order Form upon written notice to Customer.

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4.02 Lawful and Permitted Use. Customer shall not use the Services, nor permit any third party to use the Services, for any unlawful, improper, or unauthorized purpose. Without limiting the foregoing, Customer shall not use the Services to transmit, display, store, or otherwise make available pornographic, obscene, indecent, or other content generally considered offensive or objectionable under applicable community standards. Customer shall cooperate fully in any investigation of alleged illegal use of Provider’s services, facilities, or any networks accessed through Provider, provided that Provider has a reasonable basis for initiating such investigation. Failure to cooperate may result in the immediate suspension of Services. Provider may also suspend or modify the Services as necessary to comply with applicable laws or regulations or to prevent or mitigate illegal or offensive use of its network.

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4.03 Acceptable Use and Policy Compliance. Customer shall at all times comply with:

1. Provider's then-current AUP;
2. Provider’s Anti-SPAM Policy; and
3. all other published policies applicable to the Services, each as made available at 639Cloud.com or other related websites and as updated from time to time.

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4.04 Policy Updates. Provider may update its AUP, Anti-SPAM Policy, or other applicable policies from time to time by posting such changes on its website – 639Cloud.com. Such updates shall be effective upon posting, provided that Provider shall provide advance written notice via Customer’s registered email address of any material changes to such policies.

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4.05 Content Disclaimer. Customer acknowledges that Provider exercises no control over, and accepts no responsibility for, the content, accuracy, or legality of any data, communications, or information transmitted, accessed, or received by Customer through the Services or the Provider network.

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4.06 Use of Information at Customer’s Risk. Any use by Customer of information obtained through the Services is at Customer’s sole risk. Provider expressly disclaims any liability for the accuracy, completeness, or quality of any such information.

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4.07 Breach and Remedies. In the event of any breach of this Section 4 by Customer, Provider may, in addition to any other available remedies, suspend the affected Services immediately and without prior notice. Provider shall notify Customer of the suspension and the underlying reason as soon as practicable following the suspension. Such notice shall also constitute notice of breach under the MSA, and Provider may maintain the suspension until:

1. Customer cures the breach to Provider’s reasonable satisfaction; or
2. Provider elects to terminate the MSA or applicable Order Form pursuant to Section 3.

Customer shall indemnify, defend, and hold Provider harmless from and against any actual loss, claim, penalty, fine, damage, or reasonable costs or expenses (including attorneys’ fees) arising out of or related to Customer’s breach of this Section 4.

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4.08 Enforcement of Rights. Customer’s noncompliance with the Agreement, any Work Order, or any applicable Provider policy may result in enforcement action by Provider, including but not limited to suspension or termination of Services, as permitted under the Agreement.

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4.09 Exclusive Remedies for Service Failures. Provider’s obligations and Customer’s sole and exclusive remedies for any failure or deficiency in the Services are limited to those expressly set forth in the applicable SLA executed by the parties.

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4.10 Customer Software Licensing. Unless otherwise stated in an applicable Work Order , Customer is solely responsible for procuring and maintaining all software licenses necessary for its use of the Services, including without limitation: Commercial Software Licenses, Microsoft Server Licenses, Open Source Licenses, Subscription-Based Licenses, Proprietary Licenses, Enterprise Agreements, GNU Affero General Public Licenses (AGPL), Apache Licenses, and Database Licenses.

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‍Section 4 FEES AND PAYMENT TERMS

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4.01 Licensing and Legal Compliance. Customer represents and warrants that it has obtained, and shall maintain throughout the term of each applicable Order Form, all necessary licenses, permits, consents, and authorizations (collectively, the “Licenses”) required to use and/or resell the Services. In the event Customer fails to maintain any required Licenses, Provider may terminate the affected Order Form upon written notice to Customer.

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4.02 Lawful and Permitted Use. Customer shall not use the Services, nor permit any third party to use the Services, for any unlawful, improper, or unauthorized purpose. Without limiting the foregoing, Customer shall not use the Services to transmit, display, store, or otherwise make available pornographic, obscene, indecent, or other content generally considered offensive or objectionable under applicable community standards. Customer shall cooperate fully in any investigation of alleged illegal use of Provider’s services, facilities, or any networks accessed through Provider, provided that Provider has a reasonable basis for initiating such investigation. Failure to cooperate may result in the immediate suspension of Services. Provider may also suspend or modify the Services as necessary to comply with applicable laws or regulations or to prevent or mitigate illegal or offensive use of its network.

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4.03 Acceptable Use and Policy Compliance. Customer shall at all times comply with:

1. Provider's then-current AUP;
2. Provider’s Anti-SPAM Policy; and
3. all other published policies applicable to the Services, each as made available at 639Cloud.com or other related websites and as updated from time to time.

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4.04 Policy Updates. Provider may update its AUP, Anti-SPAM Policy, or other applicable policies from time to time by posting such changes on its website – 639Cloud.com. Such updates shall be effective upon posting, provided that Provider shall provide advance written notice via Customer’s registered email address of any material changes to such policies.

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4.05 Content Disclaimer. Customer acknowledges that Provider exercises no control over, and accepts no responsibility for, the content, accuracy, or legality of any data, communications, or information transmitted, accessed, or received by Customer through the Services or the Provider network.

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4.06 Use of Information at Customer’s Risk. Any use by Customer of information obtained through the Services is at Customer’s sole risk. Provider expressly disclaims any liability for the accuracy, completeness, or quality of any such information.

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4.07 Breach and Remedies. In the event of any breach of this Section 4 by Customer, Provider may, in addition to any other available remedies, suspend the affected Services immediately and without prior notice. Provider shall notify Customer of the suspension and the underlying reason as soon as practicable following the suspension. Such notice shall also constitute notice of breach under the MSA, and Provider may maintain the suspension until:

1. Customer cures the breach to Provider’s reasonable satisfaction; or
2. Provider elects to terminate the MSA or applicable Order Form pursuant to Section 3.

Customer shall indemnify, defend, and hold Provider harmless from and against any actual loss, claim, penalty, fine, damage, or reasonable costs or expenses (including attorneys’ fees) arising out of or related to Customer’s breach of this Section 4.

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4.08 Enforcement of Rights. Customer’s noncompliance with the Agreement, any Work Order, or any applicable Provider policy may result in enforcement action by Provider, including but not limited to suspension or termination of Services, as permitted under the Agreement.

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4.09 Exclusive Remedies for Service Failures. Provider’s obligations and Customer’s sole and exclusive remedies for any failure or deficiency in the Services are limited to those expressly set forth in the applicable SLA executed by the parties.

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4.10 Customer Software Licensing. Unless otherwise stated in an applicable Work Order , Customer is solely responsible for procuring and maintaining all software licenses necessary for its use of the Services, including without limitation: Commercial Software Licenses, Microsoft Server Licenses, Open Source Licenses, Subscription-Based Licenses, Proprietary Licenses, Enterprise Agreements, GNU Affero General Public Licenses (AGPL), Apache Licenses, and Database Licenses.

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‍Section 5 FEES AND PAYMENT TERMS

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5.01 Service Charges. Provider shall invoice Customer for all charges arising from Customer’s use of the Services, including but not limited to Service Charges as defined in the applicable Work Order. Unless otherwise specified in a Work Order, billing will occur monthly and in advance for standard recurring Services, and in arrears for usage-based or overage charges. Service Charges shall be due and payable within fourteen (14) days of the date of invoice unless otherwise stated in the applicable Work Order. All fees are non-refundable. Unless otherwise agreed in writing, all amounts are stated and payable in U.S. Dollars.

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5.02 Payment Terms.

1. ‍Initial Payment. Upon execution of this Agreement or the relevant Work Order, Customer shall pay any required Initial Payment, which may include Service Activation Charges, the first month’s Service Charges, and/or the final month’s Service Charges, as specified in the Work Order. Unless otherwise agreed in writing, such Initial Payment shall be due no later than fourteen (14) days after execution of the Work Order.
2. ‍Recurring Charges. Provider shall bill Customer monthly in advance for recurring Services and in arrears for any overages or additional services not included in the base fee, unless otherwise stated in a Work Order. Billing for recurring Service Charges will begin on the Effective Date of the applicable Order Form.‍
3. Late Payments. Any undisputed amount not paid when due shall accrue interest at the rate of 1.5% per month, or the maximum rate permitted by applicable law, whichever is lower. Such interest shall accrue from the date the payment is due until the date payment is received and shall be payable in addition to all other remedies available to Provider. Customer shall also be responsible for all reasonable costs of collection incurred by Provider, including attorney’s fees and collection agency fees, in the event of non-payment.‍
4. Payment Methods. Provider accepts payment by wire transfer, check, credit or debit card, or other method agreed upon in writing between the parties.

5.03 Invoice Disputes.

1. Dispute Process. Customer may in good faith dispute any portion of an invoice by providing written notice to Provider specifying the disputed amount and the basis for the dispute within fourteen (14) days of the invoice date. If Customer does not raise a dispute within such period, the invoice shall be deemed accepted. Customer shall pay all undisputed amounts in accordance with this Section 5.
2. ‍Resolution. Provider will review any properly raised dispute and respond within a reasonable time. If Provider determines that the disputed amount is valid, Provider will adjust the invoice accordingly. If the disputed amount is determined to be valid in part or in whole, the revised amount shall become due and payable within fourteen (14) days of Provider's written notice to Customer.

5.04 Taxes. Customer shall be responsible for all applicable taxes, duties, levies, and fees arising out of the purchase or use of the Services, excluding Provider’s income taxes. This includes, without limitation, sales, use, value-added (VAT), excise, or similar transaction-based taxes. If Customer provides Provider with a valid tax exemption certificate from a recognized taxing authority, Provider shall not invoice Customer for the corresponding exempted taxes.

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5.05 Auto-Renewal Pricing Adjustments.

1. Unless otherwise stated in the applicable Work Order, pricing for Services under any Work Order that automatically renews beyond its initial term may be subject to an increase of up to [5%] per renewal term, effective at the beginning of each such renewal period. Provider shall provide written notice of any such increase to Customer no less than thirty (30) days prior to the start of the renewal term. Continued use of the Services after the renewal date shall be deemed acceptance of the adjusted pricing.
2. This provision shall not limit Provider’s right to offer customized renewal pricing or volume-based discounts, which may be negotiated and agreed to in writing between the parties.

‍Section 6 DATA PROTECTION AND COMPLIIANCE

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6.01 Data Security. Provider shall implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Customer Data against unauthorized access, use, disclosure, or destruction. However, Customer acknowledges and agrees that no system, network, or method of data transmission is completely secure, and Provider makes no warranty or guarantee as to the absolute security of the Services.

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6.02. Data Loss and Backup. Customer is solely responsible for maintaining adequate backups of all Customer Data. Provider shall not be liable for any loss, deletion, corruption, or failure to store any Customer Data, except to the extent such loss is directly caused by Provider’s gross negligence or willful misconduct. Provider strongly recommends that Customer maintain independent, offsite backups of critical data at all times.

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6.03 Compliance with Data Protection Laws. Customer shall ensure that its use of the Services complies with all applicable laws, rules, and regulations, including but not limited to those governing data protection, privacy, and intellectual property rights. This includes the General Data Protection Regulation (EU Regulation 2016/679) (“GDPR”), the UK GDPR, the California Consumer Privacy Act as amended by the California Privacy Rights Act (“CCPA”), and similar data protection laws in any applicable jurisdiction.

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6.04 Roles of the Parties. For the purposes of data protection laws, Customer is the data controller (or business) and Provider is the data processor (or service provider), except where Provider acts as an independent controller for administrative or billing data related to Customer’s account. Customer represents and warrants that it has obtained all necessary consents and authorizations to permit Provider to process Customer Data in accordance with this Agreement.

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6.05 Data Processing Addendum. To the extent required under applicable law, the parties shall enter into a separate Data Processing Addendum, which shall be incorporated into this Agreement by reference. If no separate DPA has been executed, and processing of personal data governed by GDPR or CCPA is involved, the default DPA available at 639Cloud.com shall apply and be deemed incorporated herein.

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6.06 Confidentiality.

1. Obligations. Each party (“Receiving Party”) agrees to protect from unauthorized disclosure all non-public information of the other party (“Disclosing Party”) that is disclosed in writing, orally, or by inspection, and which is marked or reasonably understood to be confidential (“Confidential Information”). The Receiving Party shall use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care.
2. Permitted Disclosures. The Receiving Party may disclose Confidential Information to its affiliates, employees, contractors, advisors, and sub-processors with a need to know, solely to perform its obligations under this Agreement, provided such recipients are bound by obligations of confidentiality no less protective than those set forth herein.
3. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no breach of this Agreement; (ii) was rightfully known to the Receiving Party without restriction before disclosure; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is disclosed with the Disclosing Party’s prior written consent.
4. Required Disclosure. The Receiving Party may disclose Confidential Information to the extent required by applicable law, regulation, or legal process, provided it gives the Disclosing Party prompt written notice (where legally permitted) and reasonably cooperates in seeking protective measures at the sole cost of the Disclosing Party.
5. Return or Destruction. Upon written request or termination of this Agreement, each party shall return or securely destroy all Confidential Information of the other party in its possession or control, except where retention is required by law or permitted under its standard backup or archival procedures.

‍Section 7 INTELLECTUAL PROPERTY

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7.01 Network Maintenance Responsibilities. Provider shall be solely responsible for the operation, support, and maintenance of the Network, and shall bear all associated costs. In order to maintain or improve the performance and reliability of the Network, Provider may from time to time perform routine or emergency Maintenance.

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7.02. Scheduled Maintenance. When circumstances permit, Provider shall provide Customer with at least thirty (30) days’ advance notice of any scheduled Maintenance that is reasonably expected to result in a material interruption or degradation of Services. Notice may be provided via website posting, email, phone, or any other communication method reasonably elected by Provider.

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7.03 Emergency Maintenance. Emergency Maintenance refers to any urgent corrective action necessary to immediately restore the Services or prevent imminent disruption. Provider may perform Emergency Maintenance at any time, and while advance notice may not be possible, Provider will use commercially reasonable efforts to notify Customer promptly thereafter.

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7.04 Service Interruptions. Provider reserves the right to suspend or temporarily interrupt the Services as necessary to perform Maintenance, repairs, upgrades, or modifications to the Network. Provider shall use reasonable efforts to:

1. keep the duration of any suspension or interruption as brief as practicable; and
2. schedule Maintenance so as to minimize disruption to Customer’s use of the Services.

7.05 No Breach. Customer acknowledges and agrees that any suspension, interruption, or degradation of the Services due to Maintenance conducted in accordance with this Section 7 shall not be deemed a breach of the Agreement or any Work Order.

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‍Section 8 INTELLECTUAL PROPERTY

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8.01 Ownership of Intellectual Property.

1. Each Party shall retain all right, title, and interest in and to its respective patents, trademarks, service marks, trade names, logos, copyrights, trade secrets, registered designs, inventions, and other intellectual property and proprietary rights (“Intellectual Property Rights”), whether developed prior to, independently of, or in the course of this Agreement. Nothing in this Agreement or any Order Form shall be construed to transfer or grant any ownership, license, or other right, either express or implied, in the Intellectual Property Rights of the other Party, except as expressly provided herein.
2. As between the Parties, Provider retains all rights, title, and interest in and to the Services and all related software, tools, methodologies, templates, documentation, and other Provider Materials, together with any enhancements, modifications, derivative works, or suggestions, ideas, or feedback provided by Customer. Customer agrees that title to and ownership of the Services shall remain exclusively with Provider and that Customer’s rights with respect to the Services are limited to the licenses expressly granted in this Agreement or in an applicable Order Form.

8.02. License to Use Provider Materials. Subject to Customer’s compliance with the terms of this Agreement and any applicable Order Form, Provider grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Provider Materials solely for Customer’s internal business operations in connection with its authorized use of the Services during the applicable Order Form term.

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8.03 License to Use Provider Materials. Subject to Customer’s compliance with the terms of this Agreement and any applicable Order Form, Provider grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Provider Materials solely for Customer’s internal business operations in connection with its authorized use of the Services during the applicable Order Form term.

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8.04 Third-Party Materials. Customer’s use of any Third-Party Materials made available by Provider is subject to the applicable third-party license terms. Provider makes no representations or warranties with respect to Third-Party Materials and shall have no liability arising from Customer’s use thereof. In the event of any conflict between the terms of this Agreement and the license terms applicable to any Third-Party Materials, the third-party license terms shall control solely with respect to the Third-Party Materials.

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8.05 Feedback. If Customer provides Provider with any suggestions, ideas, improvements, or other feedback regarding the Services or Provider Materials (“Feedback”), Provider shall have a perpetual, irrevocable, worldwide, royalty-free right to use, disclose, reproduce, license, and otherwise exploit such Feedback for any purpose without restriction or obligation to Customer.

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8.06 Use of General Knowledge, Residuals, and Derivative Works.

1. ‍No Work-for-Hire. The parties acknowledge and agree that, unless otherwise expressly stated in an applicable Work Order and signed by both parties, the Services provided by Provider under this Agreement are not deemed to be “work made for hire” under applicable copyright laws. As between the parties, all rights, title, and interest in and to any work product, deliverables, and materials developed by Provider in connection with the Services shall be owned by Provider, subject to the limited license rights expressly granted to Customer under this Agreement.
2. Use of Residuals and Know-How. Notwithstanding anything in this Agreement to the contrary, Provider and its personnel shall be free to use any general knowledge, ideas, techniques, skills, or know-how acquired or developed in the course of performing the Services, including information retained in the unaided memory of Provider’s personnel, provided that such use does not result in the unauthorized use or disclosure of Customer’s Confidential Information or the infringement of Customer’s intellectual property rights. For clarity, nothing in this Section shall limit the obligations set forth in Section 6 (Data Protection and Compliance).
3. Derivative Offerings. Provider may incorporate such general knowledge, skills, and experience into its future products, services, tools, or processes, including derivative offerings, so long as such use does not involve the unauthorized use or disclosure of Customer’s Confidential Information (as defined in Section 6) or infringe any of Customer’s intellectual property rights.
4. No License By Implication. Nothing in this Section 8.06 or elsewhere in this Agreement shall be construed to grant Customer any license or rights in or to any Provider Materials, residuals, or derivative works, except as expressly provided in this Agreement or in a separate written agreement executed by Provider.

‍Section 9 REPRESENTATIONS AND WARRANTS

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9.01 Provider Warranty. Provider warrants that it will perform the Services in a commercially reasonable manner and in accordance with applicable industry standards. This limited warranty applies only during the term of the applicable Work Order and does not apply to any third-party services or materials, nor to any failure of the Services caused by factors outside of Provider’s control, including misuse, modification, or improper installation by Customer or any third party. Provider does not warrant that the Services will be uninterrupted, error-free, or completely secure.he Services are limited to the licenses expressly granted in this Agreement or in an applicable Order Form.

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9.02 Exclusive Warranties. THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN ANY APPLICABLE ORDER FORM OR SERVICE LEVEL AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY PROVIDER WITH RESPECT TO THE SERVICES. ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

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9.03 “As Is” and “As Available.”EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR SERVICE LEVEL AGREEMENT (SLA), THE SERVICES ARE PROVIDED STRICTLY “AS IS” AND “AS AVAILABLE.” PROVIDER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, OR ACCURACY OF THE SERVICES OR ANY RESULTS OBTAINED FROM THE USE THEREOF. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS PURCHASING THE SERVICES WITH KNOWLEDGE OF THIS WARRANTY LIMITATION.

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9.04 Consent and Third-Party Use Disclaimer. Provider does not monitor, and disclaims all responsibility for, the content of any communications or data transmitted or received through the Services. Provider further disclaims all responsibility for unauthorized access to, or misuse of, the Services by Customer or any third party.

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9.05 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

1. ‍IN NO EVENT SHALL PROVIDER OR ITS AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, MEMBERS, AGENTS, LICENSORS, OR SUBCONTRACTORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, LOSS OF USE, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, PROVIDER SHALL NOT BE LIABLE FOR ANY DAMAGE TO, OR LOSS OF, CUSTOMER DATA, EXCEPT TO THE EXTENT CAUSED BY PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
2. PROVIDER’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO PROVIDER FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
3. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES OR LIABILITIES ARISING FROM PROVIDER’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BODILY INJURY, OR ANY CLAIMS THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
4. CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE OF THE SERVICES SHALL BE THOSE EXPRESSLY SET FORTH IN THE SERVICE LEVEL AGREEMENT, IF APPLICABLE.

9.06 Time to Bring Claims. NO ACTION, CLAIM, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE LAST DATE ON WHICH THE SERVICES GIVING RISE TO THE CLAIM WERE PROVIDED. CUSTOMER EXPRESSLY WAIVES ANY LONGER STATUTE OF LIMITATIONS THAT MIGHT OTHERWISE APPLY UNDER LAW.

‍Section 10 INDEMNIFICATIONS

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10.01 Indemnification by Provider. Provider shall indemnify, defend, and hold harmless Customer from and against any third-party claims, suits, or proceedings alleging that the Services, as provided by Provider and used in accordance with this Agreement, infringe a third party’s intellectual property rights, and shall pay all resulting damages, costs, and reasonable attorneys’ fees awarded against Customer or agreed to in settlement by Provider. This indemnity shall not apply to claims arising from (a) modifications to the Services by Customer or any third party not authorized by Provider; (b) combination of the Services with products, services, or content not provided by Provider; or (c) Customer’s breach of this Agreement or applicable law.

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10.02 Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Provider and its affiliates, officers, directors, managers, members, employees, agents, representatives, and subcontractors from and against any third-party claims, suits, or proceedings, and all resulting losses, liabilities, damages, costs, and reasonable attorneys’ fees (“Losses”), to the extent arising out of or related to (a) Customer’s or its end users’ use or misuse of the Services, including any violation of law, regulation, or third-party rights (including intellectual property, privacy, or data protection laws); (b) any Customer content or communications transmitted via the Services; (c) any resale or provision of the Services by Customer to its customers or end users; or (d) Customer’s breach of this Agreement or any Work Order.

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10.03  Mutual Indemnification – Personal Injury and Property Damage. Each party shall indemnify, defend, and hold harmless the other party from and against any third-party claims for damages relating to bodily injury, death, or damage to tangible property, to the extent caused by the negligence or willful misconduct of the indemnifying party, its employees, or agents in connection with the performance of this Agreement.

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10.04 Indemnification Procedures. The party seeking indemnification (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) in writing of any claim for which it seeks indemnification. Failure to provide prompt notice shall not relieve the Indemnifying Party of its indemnity obligations, except to the extent it is materially prejudiced by such failure. The Indemnifying Party shall have the right to control the defense and settlement of the claim, provided that (a) the Indemnified Party may participate in the defense at its own expense; (b) the Indemnifying Party shall not settle any claim without the Indemnified Party’s prior written consent, unless such settlement includes a full release of the Indemnified Party and imposes no admission of liability or affirmative obligations on the Indemnified Party; and (c) the parties shall reasonably cooperate in the defense and resolution of any such claim.

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10.05 Indemnity Cap for Provider. Provider’s total liability under Section 10.01 (Indemnification by Provider) shall not exceed the liability cap set forth in Section 9.05(b). This limitation shall not apply to claims or liabilities arising from (a) Provider’s gross negligence or willful misconduct; or (b) any matter for which liability cannot be limited under applicable law.For the avoidance of doubt, this limitation does not apply to Customer’s indemnity obligations under Section 10.02, which shall remain uncapped except as may be limited by applicable law.

‍Section 11 PUBLICITY, USE OF MARKS, AND CASE STUDIES

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11.01 Publicity and Use of Marks. Neither Party shall use the name, logo, trademarks, service marks, or other brand identifiers of the other Party in any advertising, promotional materials, press releases, case studies, or public statements without the prior written consent of the other Party, which may be granted or withheld in that Party’s sole discretion. Notwithstanding the foregoing, Provider may identify Customer by name (excluding logo) in its general customer list or marketing materials unless Customer expressly objects in writing.

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11.02 Case Studies and Testimonials. With Customer’s prior written consent, which shall not be unreasonably withheld or delayed, Provider may develop and publish case studies, success stories, or testimonials describing Customer’s use of the Services. Customer agrees to reasonably cooperate with Provider in the preparation of such materials, including participation in interviews and review of drafts. Any such materials shall be subject to Customer’s prior written approval before publication and may include Customer’s name, logo, and quotes from authorized personnel.

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‍Section 12 FORCE MAJEURE

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12.01 Publicity and Use of Marks. Neither Party shall use the name, logo, trademarks, service marks, or other brand identifiers of the other Party in any advertising, promotional materials, press releases, case studies, or public statements without the prior written consent of the other Party, which may be granted or withheld in that Party’s sole discretion. Notwithstanding the foregoing, Provider may identify Customer by name (excluding logo) in its general customer list or marketing materials unless Customer expressly objects in writing.Force Majeure. Neither Party shall be liable for any delay or failure in the performance of its obligations under this Agreement (other than payment obligations) to the extent such delay or failure is caused by a Force Majeure Event. The affected Party’s performance shall be deemed suspended for the duration of the Force Majeure Event and extended for a period equal to the length of such delay.

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12.02 Notice Requirement. The Party claiming relief under this Section shall promptly notify the other Party in writing upon becoming aware of a Force Majeure Event that may delay or prevent performance, and shall use commercially reasonable efforts to mitigate the impact and resume performance as soon as practicable. The affected Party shall also notify the other Party when the Force Majeure Event has ended.

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‍Section 13 GENERAL TERMS

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13.01 Notice. Unless otherwise expressly stated herein, all notices under this Agreement or any Order Form shall be in writing and delivered to the addresses set forth below or to such other address as either Party may designate by written notice to the other:

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If to Customer: at the physical address or email address provided in our portal.

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If to Provider:

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639 DC Main LLC (or 639 Cloud) 

1712 Pioneer Avenue, Suite 500

Cheyenne, WY 82001

Email: sales@639Cloud.com

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Notices shall be deemed delivered (a) upon receipt or refusal if sent by registered or certified mail, return receipt requested; (b) on the next business day if sent by prepaid commercial overnight delivery service; or (c) upon confirmed transmission if sent by email and confirmed by the receiving Party.

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Abuse and Security Notices:
Reports of suspected violations of the Acceptable Use Policy, Anti-Spam Policy, or any misuse of the Services should be directed to abuse@639cloud.com.

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Provider will investigate abuse complaints in accordance with the AUP and Anti-Spam Policy. Abuse-related emails shall not constitute legal notice under this Section unless separately designated as such and sent to Provider’s legal notice email address.

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13.02 Waiver. No waiver of any provision of this Agreement or any Work Order, or of any breach thereof, shall be effective unless made in writing and signed by the waiving Party. A waiver of any breach shall not be deemed a waiver of any other or subsequent breach.

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13.03 Severability. If any provision of this Agreement or any Work Order is held to be invalid, illegal, or unenforceable under applicable law, the remaining provisions shall remain in full force and effect. The invalid or unenforceable provision shall be construed to reflect the original intent of the Parties as closely as possible in accordance with applicable law.

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13.04 No Personal Liability. Any claims or actions under this Agreement or any Work Order shall be made solely against the legal entity that is party to this Agreement, and not against any individual officer, director, manager, employee, or agent of such entity. Liability shall be enforceable only against the corporate or company assets of such Party.

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13.05 Counterparts. This Agreement and any Work Order may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Execution and delivery by electronic transmission (including PDF or facsimile) shall be valid and binding.

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13.06 Entire Agreement. The Agreement, together with the SLA, the AUP, any signed Work Order or Work Orders, and any other incorporated documents, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, communications, and agreements, whether oral or written. This Agreement may not be modified except by a written amendment signed by both Parties. Customer’s use of the Services constitutes acceptance of the Agreement. The recitals of this MSA are hereby incorporated by reference into this MSA.

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13.07 Relationship of the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Neither Party shall have the authority to bind the other or to incur obligations on the other’s behalf without the other’s prior written consent.

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13.08 Assignment. Neither Party may assign or transfer the Agreement, in whole or in part, without the prior written consent of the other Party; provided, however, that Provider may assign the Agreement without consent in connection with a merger, acquisition, or sale of all or substantially all of its business or assets. Any attempted assignment in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

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13.09 Subcontracting. Provider may engage subcontractors to perform portions of the Services, provided that Provider remains responsible for the acts and omissions of its subcontractors to the same extent as if such acts or omissions were performed by Provider itself.

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13.10 Compliance with Laws. Each Party shall comply with all applicable laws, regulations, and governmental orders in connection with the performance of its obligations under this Agreement. Customer shall not use the Services in violation of any applicable export control laws or economic sanctions.

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13.11 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles. Subject to Section 13.13 (Dispute Resolution and Arbitration), any legal action or proceeding arising under this Agreement shall be brought exclusively in the state or federal courts located in New York County in New York State, and the Parties hereby irrevocably consent to the jurisdiction and venue of such courts.

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13.12 Survival. The termination, expiration, or rescission of this Agreement shall not affect the rights and obligations of the Parties that by their nature or express terms are intended to survive. Without limitation, the following provisions shall survive and remain in full force and effect: Customer’s obligation to pay any outstanding fees, and the provisions relating to confidentiality, intellectual property, indemnification, limitations of liability, disclaimers of warranty, and dispute resolution, as well as any other terms which expressly state they survive termination.

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13.13 Dispute Resolution and Arbitration.

1. ‍Informal Resolution. The Parties agree to attempt in good faith to resolve any dispute, controversy, or claim arising out of or relating to this Agreement (each, a “Dispute”) through informal discussions between senior management before initiating formal legal proceedings.
2. Binding Arbitration. Except as otherwise provided in subsection (c) below, any Dispute that cannot be resolved informally shall be finally settled by binding arbitration administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) in accordance with its Streamlined Arbitration Rules and Procedures if the amount in controversy is less than $1,000,000, or its Comprehensive Arbitration Rules otherwise. The arbitration shall be conducted by a single arbitrator, in the English language, and held in New York, NY. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including specific performance, injunctive relief, or damages, except as limited by this Agreement. The prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs.
3. Injunctive Relief. Notwithstanding anything in this Section to the contrary, either Party may seek temporary or permanent injunctive or equitable relief in the federal or state courts located in New York County to prevent the actual or threatened unauthorized use or disclosure of Confidential Information or infringement of Intellectual Property Rights. Each Party consents to the exclusive jurisdiction and venue of the federal or state courts located in New York County for that purpose.
4. Class Action Waiver. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY AGREES THAT ANY DISPUTE RESOLUTION PROCEEDING SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED ACTION. NEITHER PARTY SHALL BE ENTITLED TO SERVE AS A CLASS REPRESENTATIVE, PARTICIPATE AS A CLASS MEMBER, OR OTHERWISE PARTICIPATE IN ANY COLLECTIVE OR REPRESENTATIVE PROCEEDING RELATING TO ANY DISPUTE.
5. Confidentiality of Proceedings. All aspects of any arbitration proceeding, including the existence of the arbitration, the underlying dispute, and the outcome, shall be maintained in strict confidence by the Parties, except as required by law or to enforce an arbitral award.