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Master Services Agreement

This Master Services Agreement (“MSA”) is between Defiance and the customer ordering the Services (“Customer”, “Client”, or “you”) each a “party” and together the “parties.” 

  1. DEFINED TERMS. The defined terms in Schedule 1 shall be applicable to the Agreement. 
  2. SERVICES.  
    1. Defiance Digital, LLC (“Defiance”) shall provide the Services in accordance with the Agreement and all laws applicable to Defiance. Defiance’s obligation to provide Services is contingent on verification that Customer at all times satisfies Defiance’s credit approval criteria. Defiance shall have no obligation to provide Services for Customer Configurations which do not meet the Defiance Configuration Requirements. Defiance shall provide support only to those individuals designated by Customer in the customer portal and is not required to provide any support directly to Customer’s end users. Customer remains liable for the acts and omissions of Customer’s end users. 
  3. CUSTOMER OBLIGATIONS. 
    1. For Services where Defiance’s access to the Customer Configuration is necessary to perform the Services and/or to calculate any utility Fees based on usage of the Customer Configuration (other than in respect of Hosted Systems), Customer shall grant Defiance a reasonable method to access the Customer Configuration. Customer shall cooperate with Defiance’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement. Customer is responsible for keeping its account permissions, billing, and other account information up to date. Customer agrees that its use of any Hosted System shall comply with the (Acceptable Use Policy) AUP. Customer is responsible for determining the suitability of the Services and Customer’s compliance with any applicable laws, including export laws and data privacy laws. 
    2. Customer Data.  Customer is responsible for ensuring the integrity and security of Customer Data, and for regularly backing up and validating the integrity of backups of Customer Data on an environment separate from the Customer Configuration. Defiance shall only back up data to the extent stated on a Service Order. 
    3. Account Ownership. The highest authority with regard to the Defiance Account is the Account Owner. The Account Owner is appointed during initial onboarding. Once the Account Owner appointment has been made, it may not be changed unless by either the Account Owner or an authorized Defiance agent pursuant to Defiance’s established policies. We recommend that the person appointed as the Account Owner be someone that owns the domain name(s) hosted on the Defiance Account. To avoid a potential dispute over ownership, we do not recommend that an employee, contractor, or other transient person be the owner of the Defiance Account. Should a dispute arise, we may not be able to assist the third party with accessing the Defiance Account without a valid, applicable court order. If account ownership is disputed, Defiance may, in its sole discretion, suspend or close the Defiance Account without notice. The Account Owner assumes all liability and responsibilities for: (i) management of the Defiance Account, Service and all Content associated with the Defiance Account; (ii) all complaints served upon Defiance in reference to the Content; (iii) all activity associated with the Defiance Account; (iv) the actions of all Account Contacts; and (v) payment of all monies owing on the Defiance Account.
      1. The Account Owner and any Account Contacts must be living individuals, whose legal first and last name is provided to Defiance. Defiance may require proof of: (i) the identity of the Account Owner and/or any Account Contact; and (ii) any of the registration data, including, but not limited to proof of address and verification of email address. Use of business, organization, or fake names for the Account Owner or an Account Contact name is prohibited and constitutes a breach of this Agreement.
    4. New Services. Defiance builds new virtual environments based on custom architecture and opinionated guidance. For Customers with existing environments, Defiance will work with Customers to re-architect and migrate the existing platform to a Defiance supported one. Defiance will make a good faith effort to build an environment for the Service centered around Customer’s business needs. 
  1. CUSTOMER SUPPORT POLICY. The purpose of customer support is to resolve defects/incidents that cause a nonconformity in the Service. A resolution to a defect may consist of a fix, workaround, or other relief, as Defiance deems reasonable. Customer support does not include performing the following services: 

Customer support is not required to provide resolutions for immaterial defect or defects due to modification of the Service made by any person other than Defiance or a person acting at Defiance’s direction. 

    1. Incident Priority. Incident priority for a defect is determined using the guidelines below:
Priority Definition
SEV1  Any defect/incident that causes a business application to be unavailable. 
SEV2  Any defect/incident that causes a critical function to fail. 
SEV3  Any defect/incident that significantly impedes work or progress. 
SEV4  Any defect/incident that does not significantly impede work or progress. 
    1. Business Hours. Customer support availability is determined using the guidelines below:
Priority Availability
SEV1  24 hours a day, 7 days a week
SEV2  8 hours a day, 5 days a week
SEV3  8 hours a day, 5 days a week
SEV4  8 hours a day, 5 days a week
    1. Response Times and Level of Effort. Customer may submit an incident with Defiance via the Defiance Support Portal or dedicated Slack channel. All support requests will be tracked in the Defiance Support Portal and can be viewed by Customer’s authorized contacts. Defiance will use reasonable efforts to meet the target response times and target level of effort stated in the table below:
Priority Target Response Times Target Level of Effort
SEV1  2 hours Continuously, 24 hours per day, 7 days per week 
SEV2  4 hours Continuously, 24 hours per day, 7 days per week
SEV3  1 day As appropriate during normal Business Hours 
SEV4 N/A As appropriate during normal 

Business Hours
  1. ACCEPTABLE USE POLICY
    1. Restrictions on Use.
      1. Customer agrees to use the Service for lawful purposes only. The laws of the State of North Carolina, and the United States of America apply to this Agreement and all use of the Service. 
      1. The following represents a partial listing of activities that are prohibited when using the Service, any one of which has the potential to result in suspension or termination of your Defiance Account or Service without prior or further notice. Without limitation and in no particular order, the Service may NOT be used to host, display, post, propagate, upload, download, transmit, transfer, disseminate, distribute, reproduce, sell, link to nor facilitate access to:
    1. PASSWORDS.
      1. Notwithstanding any of the terms of this Agreement, Customer is required to and solely responsible for maintaining the confidentiality and security of the passwords used to access the Defiance Account, the Service and the Peripherals. Any and all activities that occur under the Customer’s username and password will be considered done by the Customer and the Customer bears sole responsibility for that activity. Defiance shall not be liable for any loss or damage arising from or otherwise related to the Customer’s failure to maintain control over access to the Customer’s password or username, the Defiance Account, the Service or the Peripherals.
      2. Customer is required to and solely responsible for employing industry standard best security practices, such as using secure passwords. If the Customer uses an unsecure password, the Defiance Account, the Service and/or the Peripherals are likely to be hacked or otherwise compromised, and the Customer will be solely liable in any such case. Audits may be done to check for weak passwords. However, in no event should the Customer rely on the performance of any possible audit by Defiance. If an audit is performed, and it is determined that your password is weak, the Defiance Account may be suspended, or the Customer may be given time to update the password to a more secure password.
  1. SECURITY. Defiance shall provide the Services in accordance with Security and Privacy Practices and any additional security specifications identified in the Service Order or Product Terms. Customer shall use reasonable security measures and precautions in connection with its use of the Services, including appropriately securing and encrypting in transit and at rest Sensitive Data stored on or transmitted using the Customer Configuration; and shall take appropriate measures to otherwise prevent access to Sensitive Data by Defiance where Defiance’s access to the premises, systems or networks managed or operated by Customer may result in its exposure. Customer Data is, and at all times shall remain, Customer’s exclusive property. Defiance shall not use or disclose Customer Data except as materially required to perform the Services or as required by law. 
  1. INTELLECTUAL PROPERTY. 
    1. Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. If Customer provides Defiance with its Customer IP, Customer hereby grants to Defiance, during the term of the applicable Service Order, a limited, worldwide, non-exclusive, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Customer IP solely for the purpose of providing the Services. Customer represents and warrants that Customer has all rights in the Customer IP necessary to grant this license, and that Defiance’s use of Customer IP shall not infringe on the Intellectual Property rights of any third party. 
    2. Proprietary Rights; Deliverables. Unless otherwise specifically stated in the applicable Service Order, and excluding any Customer IP, as between the parties, Defiance shall own all Intellectual Property created in providing the Services or contained in the Deliverables. Subject to Customer’s compliance with the terms of the Agreement, Defiance grants to Customer a limited, worldwide, non-exclusive, non-transferable, royalty free right and license (without the right to sublicense) to use: 
      1. any Intellectual Property provided by Defiance to Customer as part of the Services (excluding Third Party Software, Open Source Software, and Deliverables) solely for Customer’s internal use and as necessary for Customer to enjoy the benefit of the Services during the term of the applicable Service Order; and 
      2. any Intellectual Property provided by Defiance to Customer as part of the Deliverables (excluding Third Party Software and Open Source Software) solely for Customer’s internal use in perpetuity. 
    3. Open Source. In the event Defiance distributes or otherwise provides for Customer use any Open Source Software to Customer as part of the Services and/or Deliverables then such Open Source Software is subject to the terms of the applicable open source license. To the extent there is a conflict between this MSA and the terms of the applicable open source license, the open source license shall control. 
    4. Third Party Software. Defiance may provide Third Party Software for Customer’s use as part of the Services and/or Deliverables or to assist the delivery of the Services. Unless otherwise permitted by the terms of the applicable license, Customer may not: (i) assign, grant, or transfer any interest in Third Party Services or Third Party Software to another individual or entity; (ii) reverse engineer, decompile, copy, or modify the Third Party Software; (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software; or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing the Agreement. Customer may only use Third Party Services and Third Party Software provided for its use as part of the Services (identified on the Service Order) on that portion of the Customer Configuration for which it was originally provided, subject to any additional restrictions identified in the Product Terms or Service Order. Customer shall not be permitted to access any Third Party Software which Defiance installs solely to assist Defiance’s delivery of the Services. Upon termination of the Service Order, Customer shall permit removal of any Third Party Software installed by Defiance or its Representatives on the Customer Configuration. Defiance makes no representation or warranty regarding Third Party Services or Third Party Software except that Defiance has the right to use or provide the Third Party Services or Third Party Software. 
    5. Customer Provided Licenses. If Customer uses any non-Defiance provided software on the Customer Configuration, Customer represents and warrants to Defiance that Customer has the legal right to use the software. If Defiance has agreed to install, patch, or otherwise manage software in reliance on Customer’s license with a vendor then Customer represents and warrants that it has a written license agreement with the vendor that permits Defiance to perform these activities. Defiance’s obligation to install, patch, or otherwise manage Customer provided software is strictly contingent on Customer maintaining original software vendor support or similar authorized support that provides a services request escalation path, access to patching, and software upgrades, as applicable. On Defiance’s request, Customer shall certify in writing that Customer is in compliance with the requirements of this section and any other software license restrictions that are part of the Agreement, and shall provide evidence of Customer’s compliance as Defiance may reasonably request. If Customer fails to provide the required evidence of licensing to Defiance, and continues to use the software, Defiance may: (i) charge Customer its standard fee for the use of the software in reliance on Defiance’s licensing agreement with the vendor until such time as the required evidence is provided, or (ii) suspend or terminate the applicable Services. 
    6. Infringement. If the delivery of the Services or provision of Deliverables infringes the Intellectual Property of a third party and Defiance determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services or Deliverables such that they do not infringe, then Defiance may terminate the infringing Services and/or Deliverables on 90 days’ notice and shall not have any liability on account of such termination except to refund amounts paid for unused Services (prorated as to portions of the Services and/or Deliverables deemed infringing). 
  2. FEES. 
    1. Fees. Customer shall pay the Fees due upon invoice receipt. Customer’s bank account on file will be charged upon invoice delivery. Customer is responsible for all ACH transfer fees, both incoming and outgoing, associated with the Customer’s account. Customer is responsible for ensuring that the bank account info on file is up-to-date at all times. If Customer’s undisputed payment is overdue by 15 days or more, Defiance may immediately suspend the associated Services and any other services Customer receives from Defiance on written notice. Defiance shall undertake collection efforts prior to suspension. Invoices that are not disputed within 120 days of the invoice date are conclusively deemed to be accepted as accurate by Customer. Customer shall pay the Fees in the currency identified on the Service Order, and, except as expressly permitted in section 8.3, without setoff, counterclaim, deduction, or withholding. Defiance may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and may charge Customer for any cost or expense arising out of Defiance’s collection efforts. 
    2. Fee Increases.  
        1. Defiance Fee Increases. Unless stated to the contrary in the Agreement and subject to sections 8.2(B) and 8.2(C), there will be no Fee increases during the Initial Term. However, Defiance may increase Fees following expiration of the Initial Term, any Renewal Term, or during any Auto-Renewal Term by giving at least 90 days advance written notice.  
        2. Third Party Fee Increases. In the event of a Third Party Fee Increase, Defiance may increase Customer’s Fees by the same percentage amount.  
        3. Holdover Rates. If Customer continues to use any Services following termination of the Agreement or applicable Service Order, Customer shall be responsible for payment of such Services at Defiance’s then-current market rates. 
    2. Taxes. All amounts due to Defiance under the Agreement are exclusive of Tax. Customer shall pay Defiance any Tax that is due or provide Defiance with satisfactory evidence of Customer’s exemption from the Tax in advance of invoicing. Customer shall provide Defiance with accurate and adequate documentation sufficient to permit Defiance to determine if any Tax is due. All payments to Defiance shall be made without any withholding or deduction for any taxes except for Local Withholding Taxes. Customer agrees to timely provide Defiance with accurate factual information and documentation of Customer’s payment of any such Local Withholding Taxes. Defiance shall remit such cost to Customer in the form of a credit on Customer’s outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes. 
    3. Reimbursement for Expenses. Unless otherwise agreed in the Service Order, if any of the Services are performed at Customer’s premises, Customer agrees to reimburse Defiance for the actual substantiated out of-pocket expenses of its Representatives. 
  2. DISCLAIMERS. 
    1. Defiance makes no commitment to provide any services other than the Services stated in the Service Order. Defiance is not responsible to Customer or any third party for unauthorized access to Customer Data or for unauthorized use of the Services that is not solely caused by Defiance’s failure to meet its security obligations in sections 3 and 6. To the maximum extent permitted by law, Defiance disclaims all responsibility for any situation where the security, availability, or stability of the Services is compromised by: (i) actions of Customer or any end user; (ii) software provided by Customer, or (iii) any actions taken by Defiance which are requested by Customer and not based on the advice or recommendation of Defiance. Defiance shall not be liable for any failure to comply with its obligations in the Agreement to the extent that such failure arises from a failure of Customer to comply with its obligations under the Agreement. 
    2. Defiance may designate certain Services as Unsupported Services. Defiance makes no representation or warranty with respect to Unsupported Services except that it shall use reasonable efforts as may be expected of technicians having generalized knowledge and training in information technology systems. Defiance shall not be liable to Customer for any loss or damage arising from the provision of Unsupported Services and SLA(s) shall not apply to Unsupported Services, or any other aspect of the Customer Configuration that is adversely affected by Unsupported Services. If Customer uses any Test Services, then Customer’s use of those Test Services is subject to the Test Terms. At Customer’s request, Defiance may provide services that are not required by the Agreement. Any such services shall be provided AS-IS with no warranty whatsoever. 
    3. Defiance and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.
    4. Except as expressly provided herein, Defiance makes no representation or warranty whatsoever regarding Open Source Software or with regard to any third party products or services which Defiance may recommend for Customer’s consideration. TPS Agreements are independent and separate from the Agreement, and Defiance is not a party to and is not responsible for the performance of any TPS Agreements.      
  3. 10.TERM AND TERMINATION. 
    1. 10.1.Term. This MSA shall continue until terminated in accordance with its terms. Service Orders for Recurring Services shall be subject to the Auto Renewal Term unless: (i) otherwise stated in the Agreement, (ii) the parties enter into an agreement for a Renewal Term, or (iii) either party provides the other with written notice of termination at least 90 days prior to the expiration of the then current term. 
    1. 10.2.Termination for Cause. 
      1. Either party may immediately terminate the MSA and/or the affected Service Order(s) for cause on written notice if the other party materially breaches the Agreement and, where the breach is remediable, does not remedy the breach within 30 days of the non-breaching party’s written notice describing the breach.
      1. Defiance may immediately terminate the Agreement and/or the applicable Service Order(s) for breach on written notice if, following suspension of Customer’s Services for non-payment, payment of any invoiced undisputed amount remains overdue for a further ten days.
      1. Subject to applicable law, either party may immediately terminate the MSA and any Service Order(s) on written notice if the other party enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts.  Notwithstanding anything to the contrary in the Agreement, the Fees for the Services through the conclusion of all Service Orders shall become due immediately in the event Defiance terminates the MSA in accordance with this section 10.2.
      1. Notwithstanding anything to the contrary in the Agreement, the Fees for the Services through the conclusion of all Service Orders shall become due immediately in the event Defiance terminates the MSA in accordance with this section 10.2.
    1. 10.3.Delayed Termination. If, following Customer’s notice of termination, Defiance permits Customer to cancel or delay the scheduled termination date, Customer is obligated to re-notify Defiance in writing at least 90 days prior to any rescheduled termination date.
  1. CONFIDENTIAL INFORMATION. Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under the Agreement, or as required by law; and shall use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in this MSA; (ii) as required by law; (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice; or (iv) with the other party’s consent. 
  2. LIMITATIONS ON DAMAGES. 
    1. Notwithstanding anything in the Agreement to the contrary:  
      1. Defiance’s liability arising from: (i) death or personal injury caused by negligence; (ii) fraudulent misrepresentation; or (iii) any other loss or damages for which such limitation is expressly prohibited by applicable law, shall be unlimited. 
      2. Subject to section 12.1(A), the maximum aggregate monetary liability of Defiance and any of its Representatives in connection with the Services or the Agreement under any theory of law shall not exceed the actual damages incurred up to the greater of: (i) an amount equal to six times the Fees payable by Customer for the Services that are the subject of the claim in the first month in which Fees are charged under the Agreement, or (ii) the total amount paid by Customer to Defiance for the Services that are the subject of the claim in the 12 months immediately preceding the event(s) that first gave rise to the claim. 
    2. Neither party (nor any of its Representatives) is liable to the other party for any indirect, special, incidental, exemplary, or consequential loss or damages of any kind. Neither party is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either party be liable to the other for any punitive damages; or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill, or reputation. 
    3. As an essential part of the Agreement, the liquidated damages payable under the SLA(s) shall be the credits stated in any applicable SLA(s) which are Customer’s sole and exclusive remedy for Defiance’s failure to meet those guarantees for which credits are provided; and the parties agree that the credits are not a penalty, are fair and reasonable and represent a reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum credit(s) for failures to meet any applicable SLA(s) for any calendar month shall not exceed 100% of the then current monthly recurring Fee for the Services. Customer is not entitled to a credit if Customer is in breach of the Agreement at the time of the occurrence of the event giving rise to the credit, until such time as Customer has remedied the breach. No credit shall be due if the credit would not have accrued but for Customer’s action or omission. 
  3. INDEMNIFICATION. 
    1. If Defiance, its Affiliates, or any of its or their respective Representatives (collectively, the “Indemnitees” or “Indemnified Parties”) are faced with a claim by a third party arising out of: Customer’s breach of TPS Agreement, end user agreement, AUP, security obligation or section 7.5, then Customer shall hold Defiance harmless and pay the cost of defending the claim (including reasonable legal and professional fees and expenses) and any damages, losses, fine, or other penalty that is imposed on or incurred by the Indemnitees as a result of the claim. Customer’s obligations under this section include claims arising out of the acts or omissions of Customer’s employees, agents, end users, any other person to whom Customer has given access to the Customer Configuration, and any person who gains access to the Customer Configuration as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer. 
    2. If Defiance receives notice of a claim that is covered by this section 13, Defiance shall give Customer prompt written notice thereof. Defiance shall be allowed to conduct the defense of the matter, including choosing legal counsel to defend the claim, provided that the choice is reasonable and is communicated to Customer. Customer shall comply with Defiance’s reasonable requests for assistance and cooperation in the defense of the claim. Defiance may not settle the claim without Customer’s consent, which may not be unreasonably withheld, delayed or conditioned. Customer shall pay costs and expenses due under this section 13 as Defiance incurs them. 
  4. NOTICES. Customer communications to Defiance regarding the Services should be sent to Customer’s account team. To give a notice regarding termination of the Agreement for breach, indemnification, assignment, or other legal matter, Customer shall send it by electronic mail and overnight postal service to: 

legal@defiance.ai

Defiance Digital, LLC

601 S Kings Drive, STE F409

Charlotte, NC 28204

Defiance’s communications regarding the Services and legal notices shall be posted on the customer portal or sent by email or post to the individual(s) Customer designates as contact(s) on Customer’s account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices shall be given in the English language. 

  1. PUBLICITY, USE OF MARKS. Customer agrees that Defiance may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo to identify Customer in promotional materials, including press releases. Customer may not issue any press release or publicity regarding the Agreement, use the Defiance name or logo or other identifying indicia, or publicly disclose that it is using the Services without Defiance’s prior written consent. 
  2. ASSIGNMENT/SUBCONTRACTORS. Neither party may assign the Agreement or any Service Orders without the prior written consent of the other party, except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control. Defiance may use its Affiliates or subcontractors to perform all or any part of the Services, but Defiance remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if Defiance performed the Services itself. 
  3. FORCE MAJEURE. Neither party shall be liable or be in breach of the Agreement (excluding in relation to the Customer’s payment obligations) if the failure to perform the obligation is due to an event beyond its control, including significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, fire, acts or orders of government, war, riot, insurrection, epidemic, strikes or labor action, or terrorism. 
  4. GOVERNING LAW.  This Agreement will be governed by the laws of the State of North Carolina and the United States without regard to any conflicts of laws principles.  The parties expressly consent to the personal jurisdiction and venue in the state and federal courts in Mecklenburg County, North Carolina for any lawsuit filed relating to this Agreement.  The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  The prevailing party in any action or proceeding relating to the Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees. 
  5. FORCE MAJEURE. Neither party shall be liable or be in breach of the Agreement (excluding in relation to the Customer’s payment obligations) if the failure to perform the obligation is due to an event beyond its control, including significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, fire, acts or orders of government, war, riot, insurrection, epidemic, strikes or labor action, or terrorism. 
  6. MISCELLANEOUS. Some terms are incorporated into the Agreement by reference to pages on the Defiance website and Defiance may revise those terms from time to time (including the MSA). Such revisions shall only be effective and supersede and form part of the Agreement as of the time: (i) Customer enters into a new Service Order referencing the revised terms, or (ii) a Service Order automatically renews pursuant to the Agreement or the parties enter into an agreement for a Renewal Term in which case Customer acknowledges that Customer has reviewed and accepted the then-current version of the terms as of the date of the renewal. If there is a conflict between the terms of the Agreement, the documents shall govern in the following order: the Service Order, the Product Terms, and the MSA. The headings or captions in the Agreement are for convenience only. If over time Customer enters into multiple agreements for a given Customer Configuration (for example to add additional components or services) then the most recent terms referenced in the Service Order(s) shall govern the entirety of the Services for the given Customer Configuration.
    1. Unless otherwise expressly permitted in the Agreement, the terms of the Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement. A Service Order may be amended to modify, add, or remove Services by a formal written agreement signed by both parties, or by an exchange of correspondence (including via the Defiance ticketing system) that includes the express consent of an authorized individual for both parties. The pre-printed terms of Customer’s purchase order or other business form or terms that Customer provides shall be void and of no effect. Unless otherwise expressly authorized by Defiance in writing, Customer may not sell, resell, lease, or provide the Services as a service.
    2. If any part of the Agreement is found unenforceable, the rest of the Agreement shall continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. The parties acknowledge and agree that the pricing and other terms in the Agreement reflect and are based upon the intended allocation of risk between the parties and form an essential part of the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. Other than Representatives for the purposes of sections 9, 12, and 13, or as otherwise specifically designated a “Third Party Beneficiary”, there are no third party beneficiaries to the Agreement. The use of the word “including” means “including without limitation.” 
    3. The following provisions shall survive expiration or termination of this MSA: Intellectual Property, Confidential Information, Limitation on Damages, Indemnification, Notices, Governing Law, Miscellaneous, all terms of the Agreement requiring Customer to pay any Fees for Services provided prior to the time of expiration or termination or requiring Customer to pay an early termination Fee, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement. 
    4. The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral. 

  SCHEDULE 1

DEFINED TERMS

 

“Account Contact” means any person the Account Owner has added to the Defiance Account for the purposes of accessing and managing the Defiance Account.

“Account Owner” means the individual identified in Defiance’s records as the owner of the Defiance Account.

“Affiliate” as to Customer means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity referred to, but only for so long as such control exists; and as to Defiance means Defiance Holdings, LLC and any entity that is directly or indirectly controlled by Defiance Holdings, LLC.. As used in this definition “control” means control of more than a 50% interest in an entity. 

“Agreement” means, collectively, the MSA and any applicable Service Order, Product Terms, or other addenda which govern the provision of Services. 

“Auto Renewal Term” means the automatic renewal period following expiry of the Initial Term, for consecutive rolling 1 year terms. 

“Business Day” means Monday through Friday, excluding national holidays, in the country whose laws govern the Agreement. 

“Confidential Information” means non-public information disclosed by one party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure. 

“Customer Configuration” means an information technology system (hardware, software and/or other information technology components) which is the subject of the Services or to which the Services relate.  

“Customer Data” means all data which Customer receives, stores, or transmits on or using the Customer Configuration. 

“Customer IP” means Customer’s pre-existing Intellectual Property. 

“Defiance Account” means the account with us that contains the Services.

“Deliverables” means the tangible or intangible materials which are prepared for Customer’s use in the course of performing the Services and that are specifically identified and described in a Service Order as Deliverables. 

“Fees” means the fees payable under the applicable Service Order. 

“Hosted System” means a Customer Configuration provided by Defiance for Customer’s use. 

“Initial Term” means the initial term of the applicable Service Order. 

“Intellectual Property” means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights. 

“Local Withholding Taxes” means withholding (or similar) taxes imposed on income that may be attributable to Defiance in connection with its provision of the Services that Customer is legally required to withhold and remit to the applicable governmental or taxing authority. 

“Open Source Software” means open source software including Linux, OpenStack, and software licensed under the Apache, GPL, MIT, or other open source licenses. 

“Peripherals” means any service or product Customer may use in conjunction with or alongside the Service.

“Product Terms” means additional terms and conditions incorporated in a Service Order which contain product-specific obligations. 

“Defiance” or “we” means the Defiance Affiliate identified in the Service Order.

“Defiance Configuration Requirements” means those specifications identified by Defiance as required to perform the Services, such as a required reference architecture or software version, as described in Customer’s Service Order or Product Terms. 

“Recurring Services” means Services which are provided on an on-going basis. 

“Renewal Term” means a fixed term extension of the Service Order term. 

“Representatives” means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents. 

“Sensitive Data” means any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data); PII (or other like term) under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person; (ii) financial records; and (iii) other sensitive or regulated information. 

“Services” means the Defiance services identified in a specific Service Order. 

“Service Order” or “Order Form” means the document describing the Services Customer is purchasing, including any online order, process, API, statement of work, or tool through which Customer requests or provisions Services. 

“SLA” means any provision providing a specified credit remedy for an identified failure to deliver or provide the Services to the identified standard. 

“Tax” means any value added, goods and services, sales, use, property, excise, and like taxes, import duties and/or applicable levies arising out of the provision of the Services. 

“Test Services” means those Services designed by Defiance as “Test,” “Beta,” “early access,” or with like designation in a Service Order. 

“Third Party Fee Increase” means the direct or indirect increase of fees by a third party vendor charged to Defiance for Customer’s use of Third Party Services, Third Party Software, or both, which may occur at any time. 

“Third Party Services” means services provided by a third party and used in connection with the Services. 

“Third Party Software” means software provided by a third party and used in connection with the Services.  

“TPS Agreements” means agreements for products and services provided by third parties, which are entered into directly between Customer and such third party. 

“Unsupported Services” means Services designated by Defiance as “best efforts,” “non-standard,” “reasonable endeavors,” “unsupported,” or with like designation in a Service Order.