IF YOU HAVE A SEPARATE, SIGNED AGREEMENT GOVERNING YOUR USE OF THE SERVICES, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.

IF YOU DO NOT, BY:

CHECKING A BOX INDICATING YOUR ACCEPTANCE;
EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR
USING THE SERVICES IN WHOLE OR IN PART;

YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.

IF YOU DISAGREE, YOU DO NOT HAVE THE RIGHT TO ACCESS OR USE THE SERVICES.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON THEIR OWN BEHALF, SUCH INDIVIDUAL REPRESENTS THAT THEY ARE:

NOT A MINOR; AND
LEGALLY COMPETENT TO BIND THEMSELVES TO THESE TERMS AND CONDITIONS.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS.

IN EITHER CASE OF THE INDIVIDUAL ACCEPTING THIS AGREEMENT, THE TERM “YOU” SHALL REFER TO SUCH ENTITY.

THIS AGREEMENT IS EFFECTIVE AS OF THE EARLIER OF:

THE EFFECTIVE DATE OF THE FIRST ORDER REFERENCING THIS AGREEMENT; OR
YOUR INITIAL ACCESS TO THE SERVICE (“EFFECTIVE DATE”).

1. Definitions

1.1. “Affiliate”

Any entity that directly or indirectly controls, is controlled by, or is under common control with a party, but only for so long as such control exists. As used here, "Control," means direct or indirect ownership or control of more than 50% of the voting interests.

1.2. “Agreement”

This Master Services Agreement, including:

1.2.1. any Order referencing this Agreement; and

1.2.2. any terms and conditions specifically referenced in this Agreement or an Order.

1.3. “Cloud Service”

The Filestage software-as-a-service platform, the On-premise Component (if applicable), and the Documentation, but excluding Non-Filestage Applications and any other third-party products or services contained in the Cloud Service.

1.4. “Confidential Information”

Any information disclosed to a party concerning the business or affairs of such party, including but not limited to information relating to the operations, technical or commercial know-how, specifications, inventions, processes or initiatives, plans, product information, pricing information, know-how, designs, trade secrets, software, documents, data and information of such party which:

1.4.1. are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend;

1.4.2. are identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within a reasonable period of time after disclosure; or

1.4.3. a reasonable person would understand to be confidential or proprietary at the time of disclosure.

Confidential Information excludes information collected, processed, or disclosed pursuant to the terms this Agreement and that has been aggregated and anonymized in accordance herewith. For purposes of this definition, references to a “party” shall include such party’s Representatives.

1.5. “Customer Data”

The:

1.5.1. data and information provided by You to Us and/or inputted, uploaded and/or shared by You, Your Users or Us on Your behalf, for the purpose of using the Cloud Service or facilitating Your use of the Services; or

1.5.2. data You collect and process through Your use of the Cloud Service,

in each case except to the extent such information and data is aggregated and anonymized pursuant to the terms of this Agreement.

1.6. “Customer Materials”

Any materials, data, information, software, equipment or other resources owned by or licensed to You and made available to Us pursuant to this Agreement, including Customer Data and Output.

1.7. “Data Processing Agreement”

The then-current Data Processing Agreement (including its supplements and annexes) in effect as of the Effective Date of Your Initial Subscription Term and each subsequent Renewal Term (as applicable), incorporated herein by reference.

1.8. “Data Protection Laws”

All applicable laws, rules, regulations, decrees, or other enactments, orders, mandates, or resolutions relating to privacy, data security, and/or data protection, and any implementing, derivative or related legislation, rule, and regulation as amended, extended, repealed and replaced, or re-enacted, as well as any applicable industry self-regulatory programs related to the collection, use, disclosure, and security of Personal Data.

1.9. “Documentation”

The then-current description of the Services, incorporated herein by reference.

1.10. “Early Adopter Features”

Any pre-general availability products or features provided to You by Us as part of a trial or feedback initiative that are clearly designated as beta, pilot, limited release, non-production or by a similar description, as further detailed in the relevant Order or acceptance form.

1.11. “Fees”

The fees payable by You for the Services as set out in an Order.

1.12. “Filestage Materials”

Any software, programs, tools, systems, data, documentation, Filestage Confidential Information, Early Adopter Features, the Services and any other materials made available by Us to You under this Agreement.

1.13. ”Filestage Team”

A password-secured tenant within the multi-tenant cloud environment in which the Cloud Service runs, sharing resources across tenants and providing data isolation for each tenant.

1.14. “Force Majeure Event”

Acts, events, omissions or accidents beyond a party’s reasonable control, including, without limitation, strikes, industrial disputes, failure of a utility service or transport network, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of machinery, act of terror, Internet service provider failure or delay, denial of service attack, fire, flood or storm, but excluding:

1.14.1. financial distress or the inability of either party to make a profit or avoid a financial loss;

1.14.2. changes in market prices or conditions; or

1.14.3. a party's financial inability to perform its obligations hereunder.

1.15. “Information Security Annex”

The then-current information privacy and security and controls applicable to Filestage’s provision of the Cloud Service, incorporated herein by reference.

1.16. “Initial Subscription Term”

The initial term of Your Subscription as specified in the Order.

1.17. “Losses”

Any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) finally awarded by a court of competent jurisdiction.

1.18. “Malware”

Any program or device (including any software, code or file) which is intended to prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of any computer software, hardware or network, telecommunications service, equipment or network or any other service or device, including without limitation worms, trojan horses, viruses, ransomware, trap doors and other similar malicious devices.

1.19. “Metrics Definition”

The then-current description of the Services metrics (i.e. subscription features) made available by Us.

1.20. “Non-Filestage Application”

A third-party software application or functionality that interoperates with all or part of the Services. Your use of or access to Non-Filestage Applications is subject to the applicable third-party terms and conditions.

1.21. “Online Training Cloud”

Online tutorials offered by Filestage.

1.22. “On-premise Component”

On-premise software that may be provided with, and that operates in conjunction with, the Cloud Service. When made available, You may download and install the On-premise Component. You are responsible for the installation and operation of the On-premise Component, including any updates. The Service Level Agreement does not apply to On-premise Components. If and to the extent an On-premise Component is subject to third party license terms, We will make those terms available to You with the relevant On-premise Component.

1.23. “Order”

An ordering document, online order form or statement of work that:

1.23.1. references this Master Services Agreement; and

1.23.2. specifies the Services ordered and the Fees owed. Orders may be between You and Us.

1.24. “Output”

Any:

1.24.1. content in the form of files and/or images generated by the Cloud Service that, as part of the documented functionality of the Cloud Service, are exported, printed, downloaded and/or extracted from the Cloud Service by an authorized User during the Subscription Term; and

1.24.2. documentation deliverables identified as such in a statement of work for Professional Services.

1.25. “Personal Data”

Any data and information relating to an identified or identifiable living person as defined under applicable Data Protection Laws.

1.26. “Professional Services”

The consulting and/or professional services related to the Services provided by Us to You as described in the applicable Order. Except as expressly agreed otherwise in an Order, Professional Services are limited to implementation and configuration support relating to the Cloud Service and shall in no event be considered a “works made for hire” engagement.

1.27. “Proof of Value”

A demonstration provided by Us to enable You to evaluate the Services.

1.28. “Proprietary Rights”

Rights in patents, utility models, trademarks, service marks, trade names, other trade-identifying symbols and inventions, copyrights, design rights, database rights, rights in know-how, trade secrets and any other intellectual property rights, anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights.

1.29. “Representatives”

Of a party are its and its Affiliates’ employees, officers, directors, advisers, agents and subcontractors.

1.30. “Service Level Agreement”

The then-current:

1.30.1. Service Level Agreement for Cloud Service Offerings and Support Services;

1.30.2. Enterprise Service Level Agreement for Cloud Service Offerings; and

1.30.3. Enterprise Service Level Agreement for Professional and Support Services,

incorporated herein by reference.

1.31. “Services”

The services described in an Order or made available to You under this Agreement, including the Cloud Service, Support Services, Additional Services, Online Training Cloud and Professional Services, each as described in the applicable Documentation. Services exclude Non-Filestage Applications and any other third-party products or services contained in the Services.

1.32. “Subscription”

The subscriptions You purchase under an Order for Your use of and access to the Services in accordance with this Agreement.

1.33. “Subscription Fees”

The Fees payable for access to the Cloud Service as set out in an Order.

1.34. “Subscription Term”

The Initial Subscription Term and any subsequent Renewal Terms.

1.35. “Support Services”

The support services, as described in the Service Level Agreement, that We provide to You in respect of the Cloud Service.

1.36. “User”

Those employees, agents and independent contractors of Yours or Your Affiliates who are authorized by You to access and use the Services in accordance with this Agreement, and to whom You have supplied a user identification and password (if applicable).

1.37. “We,” “Us”, “Our” or “Filestage”

The Filestage entity entering into the applicable Order with You or fulfilling the applicable Order placed with an Authorized Reseller.

1.38. “You” or “Your”

The company or other legal entity that enters into the applicable Order.

2. Agreement

2.1. This Agreement governs Your access to and use of the Services specified in the applicable Order or purchased by You via an online platform. This Agreement will begin on the Effective Date and continue until the earlier of:

2.1.1. termination for cause in accordance with Section 13.4; or

2.1.2. expiration of all Orders under this Agreement.

2.2. In the event of any inconsistencies between this Agreement and an Order, this Agreement shall take precedence over the Order, unless expressly indicated otherwise in such Order. Any terms included in Your purchase order, general terms of business, vendor registration portal or other document issued by You are for Your administrative convenience only and will not be binding on Us.

3. Our obligations

3.1. During the Subscription Term, and subject to the terms and conditions of this Agreement and any limitations specified in an Order, We shall:

3.1.1. make the Services available to You in accordance with the Documentation and Service Level Agreement;

3.1.2. provide Support Services in accordance with the Service Level Agreement; and

3.1.3. provide the Professional Services as further described in each Order.

3.2. We are solely responsible for all matters relating to the payment of Our employees and contractors, including without limitation providing compensation and other benefits such as vacation or sick pay, social security, medical care, unemployment or disability insurance, worker’s compensation, health and welfare benefits, profit sharing, retirement/pension, or any employee stock option or stock purchase plans and complying with all other federal, state and local laws, rules and regulations governing such matters.

4. Right of access and Your obligations

4.1. Subject to the terms of this Agreement, and except as otherwise permitted in the Documentation, during the Subscription Term, You may enable User access to and use of the Filestage Materials solely for Your internal business purposes in accordance with the limitations specified in the applicable Order and Metrics Definition and not for the benefit of any third parties. To the extent We make any application program interfaces (API) for the Cloud Services available to You, Your access and use of any such APIs is subject to Our API Fair Use Policy. Your third-party suppliers or contractors may access and use the Filestage Materials for the sole purpose of providing their goods and/or services to You.

4.2. You shall:

4.2.1. be responsible for Your Users’ compliance with this Agreement, the Documentation and any use limitations specified in the applicable Order;

4.2.2. use commercially reasonable efforts to prevent any unauthorized access to or use of the Filestage Materials and promptly notify Us in the event of any such unauthorized access or use;

4.2.3. have sole responsibility for the accuracy, quality, and legality of all Customer Data and Customer Materials;

4.2.4. be solely liable for uploading Customer Data and making appropriate downloads (backups) of such Customer Data;

4.2.5. obtain any legally-necessary consents from and provide required privacy notices to any party whose Personal Data you input into the Service or otherwise provide Us; and

4.2.6. reasonably cooperate with Us on any matters relating to the Professional Services as set out in the Order.

4.3. You shall not:

4.3.1. use the Services for the benefit of anyone other than Yourself or Your Affiliates, unless expressly stated otherwise in an Order or the Documentation;

4.3.2. rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Filestage Materials except as expressly permitted under this Agreement;

4.3.3. send, store or transfer infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that violates privacy rights or Proprietary Rights in connection with the Services;

4.3.4. knowingly input, store or transmit any Malware in connection with the Services;

4.3.5. except as specified in the Documentation, modify, copy, translate or create derivative works based on the Filestage Materials or any part, feature, function or user interface thereof;

4.3.6. remove any proprietary notices from the Filestage Materials; or

4.3.7. except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Filestage Materials to build a competitive product or service or one with similar ideas, features, functions or graphics or to determine whether the Filestage Materials are within the scope of any patent.

4.4. The Filestage Materials may contain technical features that allow Us to verify Your compliance with the limitations in this Agreement and/or an Order. Upon Our reasonable request, You shall certify in writing that Your use of the Filestage Materials is in full compliance with such limitations. You will keep complete and accurate records related to Your use of the Filestage Materials, and will make such records available to Us or Our designated third party auditor upon request and free of charge. Any use of the Filestage Materials in breach of this Section 4 may result in:

4.4.1. termination for breach in accordance with Section 13.3; or

4.4.2. the immediate suspension of the Services if We reasonably believe that such use threatens the security, integrity or availability of the Services.

We will promptly notify You of any such suspension and provide justification therefor. Where reasonable to do so, We shall:

4.4.3. provide such notification in advance; and

4.4.4. work with You in good faith to cure the breach prior to suspending Your access.

Any suspension will be limited to the scope and duration reasonably required to eliminate the threat identified.

5. Additional Services

5.1. This Section applies if and to the extent We provide You with Filestage Schema (as defined below), any Non-Filestage Application(s), a Proof of Value, or a demonstration or evaluation version of the Filestage Materials (collectively, “Additional Services”). For avoidance of doubt, Early Adopter Features shall be governed by a separate agreement and do not constitute Additional Services. In some circumstances, Additional Services are subject to limitations specified in the Order, Metrics Definition or Documentation. Your use in excess of such limits may require You to make a purchase.

5.2. We may, in Our discretion, make Cloud Service-related scripts, schema and/or code (collectively, the “Filestage Schema”) available to You as an Additional Service. In such event, You are granted for the relevant Subscription Term a limited, non-exclusive, revocable license to use and modify the Filestage Schema for purposes of implementing Your permitted use of the Cloud Service. As between You and Filestage, You will be the owner of all right, title and interest in and to any modifications You make to the Filestage Schema, subject always to Our underlying Proprietary Rights in and to the Filestage Schema and Services from which Your modifications derive.

5.3. Unless expressly agreed otherwise in the applicable Order, We may terminate Your access to Additional Services upon written notice at any time for any reason and without liability of any kind. Upon such termination, You will be given a reasonable opportunity to retrieve Customer Data.

5.4. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT (INCLUDING ANY ANNEXES OR SUPPLEMENTS HERETO) OR ANY ORDER, THE ADDITIONAL SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE SERVICE LEVEL AGREEMENT SHALL NOT APPLY TO ADDITIONAL SERVICES AND NO SUPPORT WILL BE PROVIDED. WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY OF ANY KIND WITH RESPECT TO THE ADDITIONAL SERVICES (WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT OR OTHERWISE). WHERE SUCH EXCLUSION OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, OUR TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED €1,000.00 EURO, WHICH THE PARTIES AGREE IS A FAIR AND REASONABLE AMOUNT.

6. Fees and payment

6.1. Except as expressly stated herein, Subscription Fees are non-refundable. You shall pay Us the fees agreed in the applicable Order in accordance with the terms specified therein. If You use the Filestage Materials in excess of the scope of this Agreement or the applicable Order, You shall pay all Fees attributable to such overuse in accordance with Our then-current price list. You are responsible for paying, and will be invoiced for, any fees or charges associated with using Your vendor registration or payment processing tool(s).

6.2. If, in good faith, You dispute the accuracy of any portion of Our invoice, then You shall pay all undisputed portions of the invoice when due, but may withhold any portion that is disputed provided You provide Us with written notice of such dispute prior to the invoice due date and use commercially reasonable efforts to resolve the dispute promptly.

6.3. Unless otherwise specified in the applicable Order, all fees for the Services exclude any direct or indirect taxes, levies, duties, or similar governmental assessments, including without limitation, any sales, use, value-added, withholding, or similar taxes (“Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder directly to the taxing authority. As an exception to the foregoing, if We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, the appropriate amount shall be included as a line-item on Your invoice and will be payable by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. If any such withholding or deduction is required by law, You shall pay Us such additional amount(s) as will ensure that We receive the same total amount that We would have received if no such withholding or deduction had been required. We are solely responsible for taxes based upon Our net income, assets, payroll, property, and employees.

6.4. Without prejudice to any other rights We may have, if any undisputed invoice is not paid by its due date, We shall be entitled to disable Your access to that part of the Services affected by Your non-payment upon thirty (30) days’ prior written notice thereof.

7. Proprietary rights

7.1. As between You and Us, We are and remain exclusive owners of all right, title and interest (including without limitation the Proprietary Rights) in and to the Filestage Materials and Services, including all modifications and derivatives thereto. No rights are granted to You other than as expressly set forth herein.

7.2. As between You and Us, You are and remain the exclusive owner of all right, title and interest (including without limitation the Proprietary Rights) in and to the Customer Materials, including all modifications and derivatives thereto. Subject to this Agreement, You hereby grant Us and Our Representatives the right to access, use, process, aggregate and anonymize Customer Data and information derived from Your use of the Cloud Service to:

7.2.1. maintain and provide the Services;

7.2.2. meter Your consumption and ensure compliance with any limitations specified in an Order;

7.2.3. improve, modify and develop Our products, services and features; and

7.2.4. perform such other actions as described in the Documentation or the Filestage Privacy Policy, or as otherwise authorized by You in writing in connection with Your use of the Services.

No rights are granted to Us other than as expressly set forth herein.

7.3. To the extent You provide feedback regarding Our Services, products, business or development plans, or technology roadmaps, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Services or other products (collectively “Feedback”), You hereby grant Us a worldwide, perpetual, irrevocable, royalty-free license to use such Feedback without restriction. You are not obligated to provide Feedback and We are not obligated to use Feedback.

8. Confidentiality

8.1. Each party retains all Proprietary Rights in its Confidential Information. Except as expressly authorized herein, each Party will hold in confidence and not disclose any Confidential Information of the other party except:

8.1.1. to its Representatives who have a need to know such information for purposes of performing under this Agreement and who agree in writing to keep the information confidential on terms no less restrictive than those contained in this Agreement;

8.1.2. as permitted in writing by the other party;

8.1.3. to the extent required under applicable law or regulation after giving the disclosing party (if legally allowed) an opportunity to seek legal protection or otherwise prevent or limit disclosure of the Confidential Information; or

8.1.4. to the extent such Confidential Information becomes public through no fault of the receiving party.

The parties will ensure that their Representatives comply with this Agreement and will be responsible for any unauthorized use or disclosure of Confidential Information by such Representatives.

8.2. Upon request, the receiving party shall destroy or return to the disclosing party all materials containing any of the Confidential Information. A party’s obligation to return or destroy Confidential Information does not apply to the extent:

8.2.1. required by applicable law or regulation; or

8.2.2. contained in archived computer system backup made in accordance with the receiving party’s security or disaster recovery procedures, provided in each case that any retained Confidential Information shall remain subject to the confidentiality obligations of this Agreement until so returned or destroyed.

The parties acknowledge that unauthorized disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure, the disclosing party shall be entitled to seek appropriate equitable relief in addition to any other remedies it might have at law.

9. Data protection and customer data

9.1. We shall maintain appropriate organizational and technical safeguards for protection of the privacy and security of Your Customer Data, including but not limited to measures designed to protect against the unauthorized access to or disclosure of Customer Data as described in the Information Security Annex.

9.2. If in the course of providing the Services We process any Personal Data contained in the Customer Data, the Data Processing Agreement shall apply to such processing.

9.3. Customer Data is available to You for export or download at any time during the Subscription Term. Except as specified in Section 9.4 below or as separately agreed between the parties in writing, We will indefinitely retain Customer Data then in Our possession unless applicable law requires retention for a shorter period. Any retained data is subject to the confidentiality provisions of this Agreement.

9.4. This Section applies if You are provided with a Proof of Value (“POV”) and do not have a separate agreement governing Your use thereof. We may, but are not obligated to, maintain the Filestage Team associated with the POV (“POV Team”) for an indefinite period (the “Dormant Period”) from the conclusion of the POV unless You otherwise request earlier return or destruction of the POV Team in writing. The POV Team may not be accessible to You during the Dormant Period. If You purchase Cloud Services during the Dormant Period, We will reactivate Your POV Team and, upon Your request, transfer any content contained therein to a productive Filestage Team instance; such transfer may be subject to an additional fee to be agreed between the parties. If You do not request a transfer of content, We will delete Your POV Team instance at the conclusion of the Dormant Period without further notice.

10. Warrantees

10.1. We warrant that during the applicable Subscription Term:

10.1.1. the Services will substantially perform as specified in the Documentation when used in accordance with the terms of this Agreement;

10.1.2. We will not materially reduce the overall level of beneficial service provided to you under the Service Level Agreement;

10.1.3. the Services have been and will for the duration of the Subscription Term continue to be tested for Malware (including without limitation scanning with current versions of industry-standard antivirus software); and

10.1.4. Professional Services will be performed in a professional, workman-like manner with reasonable skill and care in accordance with industry standards.

10.2. Our sole liability (and Your exclusive remedy) for any breach of the foregoing warranty shall be to correct the nonconformity, provide You with a functionally equivalent replacement or, in the case of Professional Services, reperform the nonconforming services, provided you have notified us of such nonconformity within thirty (30) days of the performance thereof. If We cannot reasonably make such correction, substitution or reperformance, as determined in Our sole discretion acting in good faith, We will refund You any prepaid Fees covering the remainder of the Subscription Term for the nonconforming Service (or any Fees paid for the nonconforming Professional Services) and terminate Your access to and use of the affected Service for which You have received the refund.

10.3. Each party warrants to the other that:

10.3.1. it has the authority to enter into the Agreement, to grant the rights granted by it under the Agreement, and to perform its obligations under the Agreement; and

10.3.2. it will comply with any law or regulation applicable to such party in performance of its duties and obligations under this Agreement.

10.4. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

11. Indemnification

11.1. Our Indemnification Obligations

We shall defend and/or settle, at Our expense, any third-party claim brought against You, Your Affiliates or Your Representatives alleging that use of the Services (or any part thereof) in compliance with the terms of this Agreement infringes the Proprietary Rights of such third-party (“Infringement Claim”). We shall indemnify You and Your Representatives against any Losses arising from the Infringement Claim or settlement amounts agreed to in writing by Us in relation to the Infringement Claim. In the event of an Infringement Claim, and in addition to Our indemnity obligations, We shall, at Our option and expense:

11.1.1. modify or replace the affected Service to eliminate the alleged infringement without loss of material functionality;

11.1.2. procure a license to enable You to continue using the Services; or

11.1.3. terminate Your Order for the affected Services with immediate effect and refund any prepaid Fees covering the remainder of the applicable Subscription Term.

11.2. Your Indemnification Obligations

You shall defend and/or settle, at Your expense, any third-party claim brought against Us or Our Representatives arising from or related to the Customer Materials (“Customer Materials Claim”). You shall indemnify Us and Our Representatives against any Losses arising from or related to the Customer Materials Claim or settlement amounts agreed to in writing by You in relation to such Customer Materials Claim.

11.3. Conditions

A party relying on an indemnity hereunder must:

11.3.1. provide prompt written notice that a claim has been made, provided that an indemnifying party shall only be relieved of its obligations hereunder if and to the extent it is prejudiced by a delay in such notification;

11.3.2. cooperate in the defense of the claim;

11.3.3. not make any admissions related to the claim;

11.3.4. allow the indemnifying party to exclusively control the defense, negotiations and any settlement of the claim; and

11.3.5. use reasonable efforts to mitigate against Losses.

11.4. Exclusive Remedy

To the extent permitted by applicable law, this Section 11 constitutes the indemnifying party’s sole liability, and the indemnified party’s exclusive remedy, for any third-party claim described herein.

12. Limitation of liability

12.1. GENERAL LIMITATION

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF:

12.1.1. THE TOTAL AMOUNT OF FEES PAYABLE BY YOU FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE DATE OF THE EVENT FOR WHICH THE LIABILITY ARISES; OR

12.1.2. €100,000 EURO.

THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY.

12.2. DISCLAIMER OF CONSEQUENTIAL DAMAGES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR SUPPLIERS BE LIABLE IN RELATION TO THIS AGREEMENT FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, ANTICIPATED SAVINGS, BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION, LOSS OF REVENUE, OR COSTS OF COVER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, NEGLIGENCE OR OTHERWISE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.3. EXCLUSIONS

THE LIMITATIONS IN SECTION 12.1 (GENERAL LIMITATION) SHALL NOT APPLY TO EITHER PARTY’S:

12.3.1. INDEMNIFICATION OBLIGATIONS;

12.3.2. LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE OR THAT OF ITS REPRESENTATIVES;

12.3.3. FRAUD OR FRAUDULENT MISREPRESENTATION;

12.3.4. WILLFUL MISCONDUCT OR GROSS NEGLIGENCE;

12.3.5. VIOLATION OF THE OTHER PARTY’S PROPRIETARY RIGHTS;

12.3.6. PAYMENT OR REFUND OBLIGATIONS UNDER THIS AGREEMENT (AS APPLICABLE); OR

12.3.7. LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

13. Term and termination

13.1. Subscriptions

The Initial Subscription Term of each Subscription shall be as agreed in the applicable Order. Thereafter, each Subscription will automatically renew for successive periods equal to that of the Initial Subscription Term (each a "Renewal Term"). The notice period for non-renewal shall be agreed in the applicable Order. In the event of non-renewal by either party, prior written notice shall be provided to the other party.

To compensate for general market changes such as inflation as well as increased product value through product improvements and new features, Filestage has the right to adjust license fees by up to 9,3% per year.

13.2. Professional services term

Each Order for Professional Services shall take effect on the Order date and remain in effect until all Professional Services under such Order have been provided.

13.3. Termination for breaches

Without prejudice to any other rights or remedies to which a party may be entitled, either party may terminate an Order without liability to the other at any time with immediate effect upon written notice if the other party is in material breach of any of its obligations under this Agreement or an Order and, in the case of a breach which is capable of remedy, fails to remedy such breach within thirty (30) days of notice of the breach. Termination of one Order shall have no effect on any other Order.

13.4. Termination for legal cause

Either party may immediately suspend performance or terminate an Order upon written notice if an applicable law or an applicable government or court order prohibits its continued performance thereunder.

13.5. Effect of termination

Upon termination in accordance with this Section, and upon expiration of the Subscription Term, You shall immediately cease use of and access to the applicable Service and any Non-Filestage Application.

14. Export

The Services (and derivatives thereof) may be subject to import, export control and sanctions laws and regulations of various global jurisdictions (“Export Laws”). Unless expressly required by local law, You will not and will not allow any third party to:

14.1. export, re-export or transfer any part of the Services to countries, persons or entities prohibited by Export Laws; or

14.2. permit any User to access or use the Services in or from an applicable embargoed country or region.

You are solely responsible for compliance with Export Laws applicable to Customer Data. We may block, restrict, limit or suspend access to the Services by any User that is subject to any applicable sanctions or embargoes. Each party represents that as of the Effective Date, it is not named on any U.S. government denied-party list.

15. Governing Law

15.1. General

The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement. Excluding conflict of laws rules, this Agreement shall be governed by and construed as follows:

If You are domiciled in: Germany

Governing Law: Germany

Courts with exclusive jurisdiction: Stuttgart

15.2. Local law requirements

In the event of a conflict between this Section 15.2 and any other portion of this Agreement, this Section 15.2 shall control.

Where the Agreement is subject to German law, the following shall apply:

15.2.1. Our aggregate liability to you for or in respect of any damages and vain expenditures (vergebliche Aufwendungen) under or in connection with the Agreement regardless of its legal basis shall be limited as follows:

a. We shall be liable without limitation in the event of wilful misconduct, gross negligence (grobe Fahrlässigkeit) and the negligently or wilfully caused damages relating to death or personal injury or in the case of liability pursuant to the Product Liability Act (Produkthaftungsgesetz);

b. Unless stated otherwise in Section 15.2.1 lit a, in cases of simple negligence (einfache Fahrlässigkeit), We shall only be liable for the breach of so-called cardinal obligations (i.e. obligations which are essential to the performance of the Agreement and which You may reasonably rely upon). In such cases, Our liability to You for or in respect of any loss or damage suffered by You under or in connection with an Order shall be limited:

(i) per damaging event to an amount of €100,000 Euro and

(ii) in the aggregate for all damages incurred over a period of twelve (12) months, to the total amount of Subscription Fees You paid to Us in these twelve (12) months, however not to fall short of €200,000 Euro.

15.2.2. The strict liability of the lessor for breaches of warranty upon commencement of the lease (verschuldenunsabhängige Haftung für anfängliche Mietmängel) in accordance with Section 536a (1) Alt. 1 of the German Civil Code shall be excluded.

15.2.3. We shall not be precluded from claiming contributory negligence.

15.2.4. All contractual and non-contractual claims for damages or vain expenditures against Us shall be time-barred after a period of one (1) year. The period of limitation shall commence in accordance with Section 199 (1) German Civil Code. The period of limitation shall, at the latest, be deemed completed five (5) years after the claim arose. Sentences 1 to 3 of this Section 15.2.4 shall not apply in the case of wilful misconduct, gross negligence or in view of personal damages under the Product Liability Act.

15.2.5. We are not liable for cases, where We are wholly or partially hindered to fulfil Our obligations due to Force Majeure Events.

15.2.6. In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for Us to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with the applicable archiving procedures.

16. Amendments and changes

Unless other specific provisions have already been made, We retain the right to amend or change this Agreement. We shall provide You with written notice of any amendments or changes at least six weeks prior to their taking effect. We shall, as part of Our notification, indicate particularly the intended significance of the changes or amendments. If You do not agree to the amendments or changes, You must provide Us with a written objection within four weeks from the intended time of the amendments or changes taking effect. If You do not object, We will consider the changes and amendments approved by You.

17. General terms

17.1. Sub-contractors

We may delegate Our performance of the Services to third parties, including those specified in the Data Processing Agreement, Our Affiliates and as otherwise agreed by You in writing. We remain responsible for the performance of Our obligations under this Agreement notwithstanding any such delegation.

17.2. Assignment

You may not assign Your rights or obligations hereunder without Our advance written consent. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns.

17.3. Independent contractors

The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, employment or any such similar relationship between You and Us.

17.4. Reference customer

You agree that We may disclose You as a customer of Ours and use Your name and logo on Our website and in Our promotional materials.

17.5. Third-party beneficiaries

Nothing in this Agreement is intended to, nor shall create, any right enforceable by any third party not a party to this Agreement. The consent of a third party shall not be required for the amendment, variation or termination of this Agreement.

17.6. Code of conduct

The parties are committed to conducting business fairly, impartially, and in an ethical manner. In that respect, each party, on behalf of itself and its participating Affiliates, declares to have established and implemented a code of business conduct and ethical standards, and will perform its obligations under this Agreement in accordance with such code.

17.7. Entire agreement and amendments

This Agreement constitutes the entire agreement between the parties regarding Your use of and access to the Services and supersedes all prior and contemporaneous agreements, proposals and representations, whether written or oral, concerning the subject matter hereof. This Agreement cannot be altered, amended or modified except in a writing accepted by duly authorized representatives of the parties. The parties agree that any representation, warranty or condition not expressly contained in this Agreement or in an authorized written amendment hereto shall not be enforceable by either Party.

17.8. Severability

If any court of competent jurisdiction finds any provision of this Agreement to be invalid, unenforceable or illegal, such provision shall be severed from this Agreement, but the other provisions of this Agreement shall remain in full force and effect.

17.9. Waiver

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

17.10. Non-exclusive remedies

Except where an exclusive remedy is specified in this Agreement, the exercise by either party of any remedy under the Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

17.11. Force majeure

Neither party shall be in breach of its obligations under this Agreement or incur any liability to the other party for any delay or failure to perform its obligations hereunder if and to the extent such delay or nonperformance is caused by a Force Majeure Event. The party affected by the Force Majeure Event shall:

17.11.1. promptly inform the other party of such delay or nonperformance;

17.11.2. use commercially reasonable efforts to avoid or remove the underlying cause of the delay or nonperformance; and

17.11.3. resume performance hereunder as soon as reasonably practicable following the removal of the Force Majeure Event.

17.12. Notices

All notices hereunder shall be in writing and shall be deemed to have been given upon:

17.12.1. personal delivery; or

17.12.2. two business days after sending by email.

Emails to Us shall be sent to legal@filestage.io, and e-mails to You shall be addressed to the administrative contact designated in Your Order. Notices relating to a party’s indemnity obligations must be sent by registered mail and email.

17.13. Surviving provisions

The terms which by their nature are intended to survive termination or expiration of the Agreement shall survive any such termination and expiration.

17.14. Language

Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version.