Master Service Agreement

Formulus Black Master Service Agreement

By using any of the services provided by Formulus Black Corporation, a Delaware corporation with an address of 26 Journal SquareS, Jersey City, NJ 07306 USA, or any of its affiliates and subsidiaries (“Formulus Black”), you (the “Customer”) agree to be bound by the terms and conditions of this Master Service Agreement (this “MSA”).  Each of Formulus Black and Customer may be referred to herein as a “Party” and collectively as the “Parties”.

 

ARTICLE 1 – GENERAL

1.1 Agreement Structure

This MSA provides general terms, conditions and a framework within which the Customer may from time to time use, access and/or purchase certain hosted infrastructure and related Internet services (“Services”) from Formulus Black for its use and/or for offering to its customers (“End User Customers”) as permitted by this MSA.  By mutual agreement, the Parties may enter into one or more service orders (each, a “Service Order”) to specify additional term and conditions with respect to any Services to be provided by Formulus Black.  In the event of a conflict between the terms of a Service Order and this MSA, the terms of such Service Order shall govern with respect to the Services subject to such Service Order.

This MSA takes effect when the Customer clicks an “I Accept” button or check box presented with these terms, or when the MSA is signed by the Parties, or when the Customer requests use of any Services (the “Effective Date”).  The Customer represents that they are lawfully able to enter into contracts (e.g., not a minor).  If the Customer is an entity (e.g., a company) and an agent of the entity is entering into this MSA on behalf of the entity, the agent represents that have legal authority to bind that entity.

1.2 Orders for Services

The Customer may request Formulus Black to provide a Service by requesting Services via the Formulus Black website and/or a Service Order delivered and accepted by Formulus Black in accordance with the terms of this MSA.  The Customer acknowledges and agrees that the Customer is solely responsible for the accuracy of all requests for Services made through the Formulus Black website and Service Order(s) and other information that it provides to Formulus Black.  All Services provided by Formulus Black shall incorporate by reference, and shall be subject to, the terms and conditions of this MSA and any applicable Service Order(s).

 

ARTICLE 2 – PAYMENT TERMS

2.1 Payment Method

The Customer must establish and maintain a current online payment method (the “Payment Method”) with Formulus Black prior to Formulus Black providing any Services to the Customer.

2.2 Credit and Deposit

Formulus Black may require the Customer to pay a deposit before any extension of Credit.  Formulus Black shall refund any amount of deposit paid pursuant to this Section 2.2, less any amount for payments that the Customer still owes to Formulus Black, when Formulus Black determines in good faith, based on the Customer’s payment history, that such deposit is no longer necessary to ensure payment, but in no event later than thirty (30) days after the termination of all Services and termination of this MSA.

2.3 Invoicing and Payment Terms

Formulus Black will provide the Customer with a monthly invoice that includes all committed services for the Services provided in the period covered by the invoice.  All amounts are due to Formulus Black upon the issuance date of the electronic invoice unless Formulus Black has separately agreed to extend credit to the Customer.  Formulus Black will charge the invoice amount upon issuance of each invoice.  Formulus Black will notify the Customer in the event that Formulus Black is unable to charge any amount via the Payment Method, and the Customer will promptly update the Payment Method or arrange for alternative form of payment.  Invoice amounts not paid on or before the date that is fifteen (15) days following the corresponding invoice date (the “Due Date”) shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest lawful rate, whichever is lower.

2.4 Invoice Disputes

To the extent that the Customer disputes any portion of an invoice, the Customer shall notify Formulus Black in writing and provide detailed documentation supporting its dispute within fifteen (15) days of the invoice date or the Customer’s right to any billing adjustment shall be waived.  In the event of a billing dispute, the Customer shall pay all undisputed amounts.  If the dispute is resolved against the Customer, the Customer shall pay such amounts due plus interest as set forth in Section 2.3 from the date the payment was originally due.  A dispute may not be based upon a claim that all or a portion of the charges for the Services were incurred by unauthorized users.

2.5 New Fees 

Fees and charges for any new Service or new feature of a Service will be effective when Formulus Black posts updated fees and charges on the Formulus Black website, unless Formulus Black expressly states otherwise in a notice.  Formulus Black may increase or add new fees and charges for any existing Services used by the Customer by giving the Customer at least 5 days’ prior notice.

 

ARTICLE 3 – TERM

3.1 Term

This MSA takes effect when the Customer clicks an “I Accept” button or check box presented with these terms, or when the MSA is signed by the Parties, or when the Customer requests use of any Services (the “Effective Date”).  The Term of this MSA shall continue during any time(s) that Formulus Black continues to provide Services to the Customer, unless terminated earlier as otherwise provided for in this MSA.  Notwithstanding the foregoing, Formulus Black reserves the right to increase rates for any Services provided thereunder upon at least 5 days’ notice.

3.2 Service Order Term

The Customer may choose to commit to Services for a specific contract term in a Service Order.  Any such term will be noted in the corresponding Service Order and will renew automatically unless canceled by the Customer sixty (60) days prior to the stated expiration of such term (or any renewal period thereof).  The term of any Service under a Service Order commences on the date the Customer can access the Formulus Black-provided Services subject to such Service Order or any specific date notated therein.  The Customer may terminate a Service subject to a Service Order before the expiration date specified therein upon at least ten (10) days prior notice, in which case the Customer must pay 75% of the unused portion of the balance of the contracted Services.

 

ARTICLE 4 – DEFAULT; SUSPENSION OF SERVICE

4.1 Customer Default

The Customer is in default of this MSA if the Customer (a) fails to cure any monetary breach within five (5) days of receiving notice of the breach from Formulus Black; (b) fails to cure any non-monetary breach of any terms of this MSA within thirty (30) days of receiving notice of the breach from Formulus Black; or (c) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event shall be a “Customer Default”).

In the event of a Customer Default, Formulus Black may suspend Services to the Customer until the Customer remedies the Customer Default, or Formulus Black may terminate this MSA and/or any or all of the Services being provided hereunder.  Formulus Black may at its sole option, but without any obligation, cure a non-monetary breach at the Customer’s expense at any point and invoice the Customer for the same.  These remedies are in addition to and not a substitute for all other remedies contained in this MSA or available to Formulus Black at law or in equity.

4.2 Formulus Black Default.

Formulus Black is in default of this MSA if Formulus Black fails to cure any non-monetary breach of any material term of this MSA within thirty (30) days of receiving written notice of the breach from the Customer (“Formulus Black Default”); provided, however, that the Customer expressly acknowledges that Service related failure or degradation in performance is not subject to a claim of a Formulus Black Default.  The Customer’s sole and exclusive remedy for any failure of Service is set forth in the applicable Service Level Agreement (“SLA”).

In the event of a Formulus Black Default, the Customer may terminate the Services and this MSA upon written notice to Formulus Black.  Any termination shall not relieve the Customer of its obligations to pay all charges incurred hereunder prior to such termination.

4.3 Additional Causes for Suspension

Formulus Black may suspend the Customer or any End User Customer’s right to access or use any portion or all of the Services immediately upon notice if it is determined, in the sole discretion of Formulus Black, that the Customer or the End User Customer’s use of the Services: (i) poses a security risk to the Services or any third party, (ii) could adversely impact the systems of Formulus Black, the Services, or the systems or content of any other Customer, (iii) could subject Formulus Black or any third party to liability, or (iv) could be fraudulent.

If Formulus Black suspends the right to access or use any portion or all of Services, the Customer remains responsible for all fees and charges incurred during the period of suspension, and the Customer will not be entitled to any service credits under the Service Level Agreements for any period of suspension.

 

ARTICLE 5 – TAXES AND IMPOSITIONS

5.1 Taxes, Generally

All charges for the Services are exclusive of any Taxes and Impositions (as defined below).  Except for taxes based on Formulus Black’s net income or for taxes which the Customer possesses an exemption certificate, the Customer shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, or other taxes, duties, fees, charges or surcharges (including regulatory fees), however designated, imposed or based upon the sale or use of the Services (collectively “Taxes”).  The Customer shall also be responsible for payment of a proportionate share of any property taxes, franchise fees, rights of way fees or charges, license or permit fees incident to the provision of the Services (collectively, “Impositions”).

5.2 Collection of Taxes

Impositions may be itemized on an invoice and any un-itemized Impositions may be aggregated in the form of a “Cost Recovery Charge”.  Formulus Black may charge any applicable Taxes that Formulus Black is legally obligated or authorized to collect from the Customer.  The Customer is responsible for providing information as reasonably required for Formulus Black to make a determination whether Formulus Black is obligated to collect Taxes from the Customer.

If the Customer is entitled to an exemption from any Taxes, the Customer is responsible for presenting Formulus Black with a valid exemption certificate (in a form reasonably acceptable to Formulus Black).  Formulus Black will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Service billed by Formulus Black to the Customer following Formulus Black’s receipt of such exemption certificate.  The Customer shall indemnify, defend and hold Formulus Black harmless from payment and reporting of all such Taxes, including costs, expenses, and penalties incurred by Formulus Black in settling, defending or appealing any claims or actions brought against Formulus Black related to, or arising from, the Customer’s non-payment of Taxes or Impositions.

All payments made by the Customer to Formulus Black under this MSA will be made free and clear of any deduction or withholding, as may be required by law.  If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, the Customer will pay such additional amounts as are necessary so that the net amount received by the Customer is equal to the amount then due and payable under this Agreement.  Formulus Black will provide the Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this MSA.

 

ARTICLE 6 – LICENSE GRANT

6.1 License Grant

Subject to this the other terms and conditions of this MSA, Formulus Black herby grants the Customer a nonexclusive, revocable, non-transferable and non-sub-licensable right and license to use the Services set forth in an Order during the applicable Service Term.  The Customer shall adhere to Formulus Black’s current Acceptable User Policy (“AUP”) and all subsequent versions thereof, incorporated by this reference and set forth at https://www.formulusblack.com/AUP. If the Customer, or an End Use Customer, violates any of the foregoing prohibitions, Formulus Black may immediately suspend the Services and/or terminate this MSA and any Services without notice or without liability or further obligation to the Customer.

6.2 Limitations

The Customer may only access and use the Services subject to any restrictions specified herein and in the AUP.  Subject to the other terms and conditions of this MSA, the Customer may resell the Services, provided that the Customer shall be liable for any violations by its customers of this MSA, the AUP and any third-party license restrictions and terms of use.  Without limiting the foregoing, the Customer shall not: (a) circumvent, copy, modify, decompile, reverse engineer or disassemble Formulus Black’s proprietary technology used in connection with Services (“Formulus Black Technology”); (b) except as expressly permitted by Formulus Black and implemented via the Formulus Black website, sublicense, rent, lease, sell, assign, timeshare or rebrand the Formulus Black Technology or Services; (c) copy any ideas, features, functions or graphics of the Services or modify or make derivative works based upon or otherwise compete with the Services; or (d) disclose or publish performance benchmark results or test results to non-affiliated third parties with respect to the Services without Formulus Black’s prior written consent in each instance.

 

ARTICLE 7 – INTELLECTUAL PROPERTY RIGHTS

7.1 Reservation of Rights

As between the parties, Formulus Black retains all right, title and interest in and to the Services and the Formulus Black Technology and all modifications, alterations, derivative works and enhancements and all intellectual property rights contained within.  Formulus Black grants no license, right or intellectual property right in any Formulus Black trademark, trade name or service mark pursuant to this MSA.

7.2 Customer Content

As between the parties, the Customer owns all data, imagery, information and other content (“Customer Content”) transmitted by or on behalf of the Customer in connection with the Services and the Customer has sole responsibility for Customer Content and its intellectual property ownership and right to use.  The Customer grants to Formulus Black the non-exclusive right and license to (a) receive, retrieve, process, use and transmit any Customer Content necessary or reasonably desirable to perform the Services; and (b) use, copy, manipulate and store any Customer Content that will be archived, stored or otherwise transmitted in connection with the Services.

7.3 Third-Party Content

Third-Party Content may be used by the Customer at the Customer’s election.  Third-Party Content is governed by this MSA and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.

 

ARTICLE 8 – LIMITATION OF LIABILITY

8.1 General Limitations

Formulus Black shall not be liable for loss or damage occasioned by a Force Majeure Event nor, to the extent allowed by law, for injury to or death of any person and for damage to or loss of any property arising out of or attributable to its operations and performance under this MSA.  Formulus Black’s total liability for any and all causes and claims whether based in contract, warranty, negligence or otherwise shall be limited to the lesser of (i) the actual direct damages sustained by Customer; or (ii) an amount equivalent to the total recurring revenue received by Formulus Black from Customer over the preceding three (3) months for the Service affected.  No cause of action under any theory which accrued more than one (1) year prior to the filing of a complaint alleging such cause of action may be asserted by either Party against the other Party.

8.2 Special Damages

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH BELOW IN ARTICLE 9 AND EXCEPT FOR CLAIMS ARISING FROM A PARTY’S INTENTIONAL MISCONDUCT, OR MISAPPROPRATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF, OR IN CONNECTION WITH, THIS MSA, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, INCURRED OR SUFFERED BY EITHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, FORMULUS BLACK MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OF THE SERVICE, LOCAL ACCESS OR ANY OTHER MATTER, AND ANY SUCH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.

8.3 No Liability for Certain Actions

Formulus Black shall not be liable to the Customer or its End User Customers for any claims or damages resulting from or caused by: (a) unauthorized access to transmission facilities or premise equipment, or for unauthorized access to or alteration, theft, or destruction of data files, programs, procedure, or information through accident, wrongful means or devices, or any other method; (b) Customer’s fault, negligence or failure to perform Customer’s responsibilities; (c) claims against the Customer by any other party (except for third-party claims indemnified under Article 9); (d) any act or omission of any other party, including End User Customers; or (e) equipment or services furnished by a third party, including End User Customers.  Formulus Black is not responsible for the content of any information transmitted or received through the Services.  The Customer shall be solely responsible for all of the security and confidentiality of information it transmits using a Service.  The Customer shall be solely responsible for all Customer support, pricing and service plans, billing and collections with respect to its End User Customers, including obtaining all necessary legal or regulatory approvals to provide or terminate the provision of the services to its End User Customers.  Formulus Black exercises no control over, and accepts no responsibility for, the content of the information passing through its network, or Customer equipment, and use of any such Service is at Customer’s own risk.

8.4 Customer Responsibilities

Except to the extent caused by Formulus Black’s breach of this MSA, (a) the Customer is responsible for all activities that occur under their account, regardless of whether the activities are authorized by the Customer or undertaken by the Customer, its employees or a third party (including its contractors, agents or End User Customers), and (b) Formulus Black is not responsible for unauthorized access to the Customer’s account.

The Customer will ensure that its Customer Content and any End User Customers’ use of its Customer Content or the Services will not violate this MSA, any applicable policies, or any applicable law.  The Customer is solely responsible for the development, content, operation, maintenance, and use of its Customer Content.  The Customer is responsible for End User Customers’ use of Customer Content and the Services.  The Customer will ensure that all End Users comply with its obligations under this MSA and that the terms of any agreements with each End User Customer is consistent with this MSA.  If the Customer becomes aware of any violation of its obligations under this MSA, any applicable policies, or any applicable law due to an End User Customer, the Customer will immediately suspend the End User Customer’s access to Customer Content and the Services.

The Customer is responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect and backup its accounts and Customer Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Customer Content from unauthorized access and routinely archiving Customer Content.

 

ARTICLE 9 – INDEMNIFICATION

9.1 Indemnification

Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Party, its directors, officers, employees, and agents, successors and assigns (“Indemnified Party”), from all damages, costs, expenses and liabilities, including reasonable attorney’s fees and disbursements, sustained in any action commenced by any third party in connection with the Indemnifying Party’s performance of, or failure to perform, its obligations and duties under this MSA except for those damages, costs, expenses and liabilities arising from the negligence or willful misconduct of the Indemnified Party; provided, however, that Formulus Black is not obligated to indemnify the Customer, and the Customer shall defend and indemnify Formulus Black hereunder, for any claims by any third party, including End User Customers, arising from services provided by the Customer that incorporate any of the Services including but not limited to (a) violation of any applicable law by End User Customers; (b) damage to property or personal injury (including death) arising out of the acts or omissions of End User Customers; (c) termination or suspension of Services of the Customer or End User Customers due to a Customer Default; or (d) claims by a third party, including without limitation End User Customers, arising out of or related to the use or misuse of any Service.

9.2 Indemnification Procedures

The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such suit or claim, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim.  The Indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the Indemnified Party.  The Indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the Indemnifying Party.

 

ARTICLE 10 – SERVICE LEVEL MATTERS

10.1 Service Levels and Service Level Credits

Formulus Black warrants that it will use commercially reasonable efforts to perform the Services substantially in accordance with the service levels (“Service Levels”) set forth in the applicable service level agreement (“SLA”) available at https://www.formulusblack.com/SLA, subject to the SLA Exclusions provided herein and the exclusions set forth in the applicable SLA.  Subject to any limitations and set forth herein and in the SLA, Formulus Black may change Service Levels in its sole discretion.  In the event that Formulus Black does not meet a Service Level during the period specified in the SLA, as Customer’s sole and exclusive remedy, and Formulus Black’s sole liability for not meeting a Service Level, Formulus Black shall provide the service level credits in the manner specified in the SLA (“Service Level Credits”).  Customer will forfeit any unused Service Level Credits which may exist as of termination or expiration of this MSA or any Services.

10.2 Service Level Policies

Formulus Black will process Service Level Credits for Service events as set forth in the SLA.  If an event has occurred which qualifies for a Service Level Credit and such event is not covered by a pro-active Service Level Credit, Customer must open a ticket with Formulus Black providing the details pertaining to the event within ten (10) days of the occurrence.  Otherwise, Customer forfeits any right to claim that a Service Level Credit is due.  For the purpose of calculating whether a Service Level Credit may be due, and the duration of an event, Formulus Black will calculate time periods beginning from the earlier of (a) the time stamp of the alert in Formulus Black’s monitoring systems; or (b) the time stamp of the Customer-submitted ticket and continuing until Formulus Black has resolved the event.  Unless otherwise noted, the performance objective (“Performance Objective”) will be based on the full calendar month of Service since the last renewal period in which the SLA event occurs.  The maximum Service Level Credits that may be earned for any calendar month shall not exceed 100% of the portion of the committed recurring revenue of the affected Services.  Any excess Service Level Credits are forfeited and shall not be carried over to future months.

10.3 SLA Exclusions

10.3.1 Planned Maintenance.

(i) Formulus Black Internal Maintenance.  Repairs, upgrades and modifications to shared core infrastructure scheduled for off-peak hours in the applicable region if Formulus Black provides notice at least 24 hours in advance; (ii) Customer Maintenance. Repairs, upgrades, scheduled or Customer-requested service interruptions or modifications to a Customer Service, scheduled in advance or in connection with a previously-agreed upon routine schedule.

10.3.2 Extraordinary Events.

Service interruption resulting from denial of service attack (“DOS”), virus attacks, hacking attempts or any other circumstances.

10.3.3 Activation Date.

Events occurring before the Service Activation Date.

10.3.4 Other Exclusions.

  • False Failures. Erroneously reported outage or issue, failures reported as a result of outages or errors of a Formulus Black measurement system or failures resulting from Service monitoring or testing performed to simulate a failure.
  • External Network Conditions. Matters caused by general network conditions outside the reasonable control of Formulus Black, including but not limited to DNS issues outside the direct control of Formulus Black or buffering associated with general conditions outside of Formulus Black’s network.
  • Non-Impacting Failure. Matters caused by a failure of a Service or feature that does not result in downtime of a guaranteed Service (by way of example only: reporting, dashboard, API access or statistics generation).  This includes outages or downtime associated with the Customer’s designated non-production (staging, testing or development) Service that is unrelated to hardware or network failures).
  • Expected Performance. Matters caused by usage patterns or traffic that exceeds the reasonable performance parameters of the Customer’s Service.
  • Customer Acts. Matters caused by Customer acts (or acts of others engaged or authorized by the Customer), including without limitation, any negligence or willful misconduct.

10.4 Third Party Products and Services

Notwithstanding anything to the contrary herein, the Customer acknowledges and agrees that Formulus Black makes no representation or warranty, express or implied, as to any third party hardware, software, products or services included with the Services.  To the maximum extent permitted under the applicable agreements, Formulus Black assigns to the Customer during the Term all assignable warranties and indemnities granted to Formulus Black by such third parties to the extent applicable to the Customer’s receipt or use of the Services during the Term.

 

ARTICLE 11 – CONFIDENTIALITY & DATA PRIVACY

11.1 Confidential Information

“Confidential Information” means all information, including this MSA, regarding the telecommunications needs of the Customer and the Services that Formulus Black offers under this MSA which is disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), to the extent that such information is marked or identified as confidential or proprietary.  Notwithstanding the foregoing, all written or oral pricing and contract proposals exchanged between the Parties shall be deemed Confidential Information, whether or not so designated.  Confidential Information is the property of the Disclosing Party and shall be returned to the Disclosing Party upon request.  Information that (i) is independently developed by the Receiving Party, (ii) is lawfully received by the Receiving Party free of any obligation to keep it confidential, or (iii) becomes generally available to the public other than by breach of this MSA, shall not be considered Confidential Information.  A Receiving Party, including its officers, directors, employees, partners, affiliates, agents and representatives, shall hold all Confidential Information in confidence from the time of disclosure until three (3) years following its disclosure.  During that period, the Receiving Party: (a) shall use such Confidential Information only for the purposes of performing its obligations under this MSA; (b) shall reproduce such Confidential Information only to the extent necessary for such purposes; (c) shall restrict disclosure of such Confidential Information to employees that have a need to know for such purposes; (d) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in this MSA or as required by law; and (e) shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information.  In the event that the Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to law, the Receiving Party will notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek relief, will cooperate with the Disclosing Party in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.  Notwithstanding anything in this Article 10 to the contrary, the fact that the Customer is a customer of Formulus Black shall not be deemed Confidential Information and Formulus Black may disclose the same without liability therefore.

11.2 Data Privacy

In providing Services to Customer, Formulus Black is neither in control of nor possesses ownership over Customer Content, and therefore assumes no liability for the security, integrity, and nature of (1) any Customer Content stored on Formulus Black servers; and (2) any data or information of the Customer that is transmitted via the Service or over the Internet.  Accordingly, Customer is solely responsible for compliance with any and all applicable privacy laws, rules, and regulations, including but not limited to the EU General Data Protection Regulation (GDPR), California Consumer Privacy Act (CCPA), Telephone Consumer Protection Act (TCPA), Health Insurance Portability and Accountability Act (HIPAA), Children’s Online Privacy Protection Act (COPPA), and the like.  Furthermore, Customer agrees to indemnify, hold harmless and defend Formulus Black from and against any and all liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, interest and penalties) of any kind or nature, arising out of, based upon or related to, any and all violations of, and allegations arising from or relating to, any and all applicable privacy laws, rules, and regulations in connection with Customer Content and/or Customer use of the Services.

ARTICLE 12 – FORCE MAJEURE

Neither Party shall be liable for any failure of performance hereunder due to causes beyond its reasonable control including, but not limited to, acts of third parties not under the direction or actual control of the Party delayed or unable to perform, acts of God, fire, explosion, vandalism, cable cut, flood, storm, or other similar catastrophe, any law, order, regulation, direction, action or request of the government, or any department, agency, commission, court, or bureau of a government, or any civil or military authority, national emergency, insurrection, riot, war, strike, lockout, or work stoppage (each, a “Force Majeure Event”).  The Party claiming relief under this Article 12 shall notify the other Party of the occurrence or existence of the Force Majeure Event and of the termination of such event.

ARTICLE 13 – MISCELLANEOUS PROVISIONS

13.1 Subject to Laws

This MSA is subject to all applicable federal, state and local laws, and regulations, rulings and orders of governmental agencies, including, but not limited to, the Communications Act of 1934, as amended, the Telecommunications Act of 1996, the Rules and Regulations of the Federal Communications Commission (“FCC”), Formulus Black’s applicable tariffs, if any, and the obtaining and continuance of any required approval or authorization of the FCC or any governmental body.  Either Party may terminate its obligations under this MSA without liability if ordered to do so by the final order or ruling of a court or other governmental agency or if such order or ruling would make it impossible for either Party to carry out its obligations under this MSA.

13.2 Governing Law; Venue

This MSA shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by the laws of the State of New Jersey.  Any and all claims arising out of or relating to this MSA shall be brought in a state or federal court of competent jurisdiction in New Jersey.  The Customer consents to the personal and subject matter jurisdiction of the state and/or federal courts located in New Jersey and waives (a) any objection to jurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.

13.3 Prevailing Party

In the event that suit is brought or an attorney is retained by either party to enforce the terms of this MSA or to collect any money as due hereunder or to collect any money damages for breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, the reimbursement of reasonable attorneys’ fees, court costs, costs of investigation and other related expenses incurred in connection therewith.

13.4 Relationship of Parties

This MSA does not create a partnership, joint venture or agency relationship between Formulus Black and the Customer.  Neither Party shall have any authority to bind the other Party to any agreement, understanding or other instrument, in any manner whatsoever.

13.5 Assignment; Binding Effect

Except as expressly permitted by Formulus Black and implemented via the Formulus Black website, the Customer shall not transfer or assign, voluntarily or by operation of law, its rights or obligations under this MSA without the prior written consent of Formulus Black.  Formulus Black may assign this MSA upon written notice to the Customer.  This MSA shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.

13.6 Amendment

Formulus Black may amend this MSA from time-to-time.  Formulus Black will notify the Customer by email or by posting a notice on the Formulus Black website before the changes are effective.  Any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to this MSA (or any applicable Service Order(s)).  Continued use of any Service(s) after any such changes shall constitute the Customer’s consent to such changes.

13.7 Notices

Notices delivered to Formulus Black under or pursuant to this MSA shall be in writing and delivered by certified mail, return receipt requested, or by nationally recognized courier to Formulus Black Corporation, Attn: Legal Department, 26 Journal Square, 16th Floor, Jersey City, NJ 07306.  Notices delivered to Customer under or pursuant to this MSA shall be delivered via electronic mail to the Customer email address on file with Formulus Black.

Notices may be provided to the Customer under or pursuant to this MSA by: (i) posting a notice on the Formulus Black website; or (ii) sending a message to the email address then associated with the Customer’s account.  Notices provided by posting on the Formulus Black website will be effective upon posting and notices provided by email will be effective when the email is sent.  It is the Customer’s responsibility to keep their email address current.  The Customer will be deemed to have received any email sent to the email address then associated with the Customer’s account when the email is sent, regardless of whether the email is actually received.

13.8 No Third Party Beneficiaries

The representations, warranties, covenants and agreements of the Parties set forth herein are not intended for, nor shall they be for the benefit of or enforceable by, any third party or person not a Party hereto, including without limitation, End User Customers.

13.9 Survival

Articles 2, 5, 8, 9, 11 and 13 shall survive any termination of this MSA.

13.10 Entire Agreement; Severability

This MSA constitutes the entire understanding between the Parties relating to the rights, duties and obligations granted and assumed herein.  Any prior agreements, promises, negotiations or representations regarding the subject matter hereof are of no force or effect.  No alteration or variation of the terms of any provision shall be valid unless made in writing and signed by a duly authorized representative of Formulus Black and the Customer.  In the event that any one or more of the provisions of this MSA shall for any reason be held to be invalid or unenforceable, the remaining provisions of this MSA shall be unimpaired, and shall remain in effect and be binding upon the Parties.  The Services provided by Formulus Black are subject to the condition that they will not be used for any unlawful purposes.  No course of dealing between the Parties and no failure to exercise any right hereunder shall be construed as a waiver of any provision hereof.

13.11 No Waivers

The failure by Formulus Black to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit the right of Formulus Black to enforce such provision at a later time.  All waivers by Formulus Black must be in writing to be effective.

 

FORMULUS BLACK MASTER SERVICE AGREEMENT