Managed Service Provider Agreement (“MSPA”)

1. GRANT OF RIGHTS

1.1. Software License and Right to Access and Use. The grant of license or the right to access and use the Software, as applicable, to MSP by CrashPlan in this Agreement for the purpose of MSP providing Managed Services to one or more Customers, solely for the internal business purposes of such Customer and may not be used for the benefit of any third party other than the Customer. In particular, subject to the general provisions of the TOS and payment of all applicable fees set forth in this Agreement where the Software is:

(a) Provided as Software-as-a-Service (SaaS). CrashPlan grants MSP, during the subscription term specified herein, a non-exclusive, non-transferable right to: (A) access and use (and to permit Customers to access and use) the Software for the purpose of MSP providing the Managed Services to the Customer and for whom that instance has been created; (B) make available the Software to the relevant Customer in order for the Customer to receive the Managed Services, in each case in accordance with the Documentation, under terms not less restrictive than those set forth in this Agreement. For the avoidance of doubt you are solely responsible for ensuring that each Customer enters into a written agreement for the Managed Services containing terms at least as favorable to and protective of CrashPlan as the terms and conditions contained in this Agreement.

(b) Licensed Marks. CrashPlan grants to MSP a non-exclusive, non-transferable, non-sublicensable right for the term to use CrashPlan’s trade names, trademarks, service marks, and logos (“Licensed Marks”) to the extent reasonably necessary to market and advertise the Managed Services. MSP shall comply with CrashPlan’s Partner Brand Guidelines at all times (the current version of which is available on request) and include in all advertising materials all Licensed Marks together with all applicable proprietary rights’ notices.

1.2. Restrictions on Use. For the avoidance of doubt, Section 1 above is in addition to any restrictions or limitations on use contained in the underlying terms, which shall remain in full force and effect. Except for the licenses/ rights granted under this Agreement, all rights, title, and interest in and to the Software and Documentation are hereby reserved by CrashPlan, its Affiliates or licensors.

2. IMPLEMENTATION AND SECURITY REQUIREMENTS

MSP shall deploy and use the Software strictly in accordance with this Agreement and the Ancillary Documents. Ancillary Documents may include, but are not limited to, the Documentation, Service Level Agreement, Information Security Addendum, Data Processing Addendum, Support Policy, and Offering Descriptions as detailed in the TOS. Because the Offerings are continually evolving, CrashPlan may update any of the Ancillary Documents from time to time, and the Ancillary Document applicable at any time to the then-current version. CrashPlan will provide you with written notice if any update to an Ancillary Document will materially and adversely affect your use of an Offering or CrashPlan’s obligations to you.

3. MAINTENANCE & SUPPORT

MSP shall provide its own maintenance and support services to the Customer. without reliance on the CrashPlan maintenance and support services. Notwithstanding the foregoing, so long as MSP is current as to payment of fees under the Agreement, CrashPlan may provide Enterprise and MSP Premier Support, for services sold to MSP during the term of the relevant subscription. CrashPlan shall have no obligation to provide technical support for: (i) altered, damaged, or modified Services (other than such altered or modified services as have been altered or modified by or in accordance with the documentation); (ii) services that are not the then-current release of the services available from CrashPlan; (iii) service problems caused by MSP’s or the customer’s negligence, hardware malfunction, or other causes beyond the control of CrashPlan; (iv) services installed on a hardware or operating system environment that is not supported by CrashPlan; or (v) pre-release or beta services.

4. PAYMENTS AND BILLING

(a) Payments. CrashPlan will issue monthly invoices (unless enrolled in ACH or credit card billing for which recurring charges will apply) for all services ordered in the previous period. Within 30 days of the date provided in the invoice, you will pay all invoiced amounts in accordance with the payment instructions in the invoice. You are responsible for all credit risks regarding, and for collecting payment for, all Managed Services sold to Customers, whether or not you have made full payment to CrashPlan for the Managed Services. The inability of you to collect the purchase price for any Managed Services does not affect your obligation to pay the fees to CrashPlan. Your Order will continue to renew until you or CrashPlan choose not to renew. You can cancel renewals by contacting customer support.

(b) Pricing. The pricing for the Services are listed in the table below. CrashPlan, at its sole discretion, may revise the pricing and any increase or decrease shall be reflected in the monthly invoice or credit card charge following such change.

(c) Taxes. All fees owed to CrashPlan are exclusive of any Taxes. “Taxes” means any sales, VAT, GST (Goods and Services Tax), use, gross receipts, business and occupation, and other taxes (other than taxes on CrashPlan’s income), export and import fees, customs duties and similar charges imposed by any government or other authority. You will pay or reimburse CrashPlan for all Taxes arising out of the transactions occurring during the applicable subscription term. If you are required to pay or withhold any Tax for payment, you will gross up your payments to CrashPlan so that CrashPlan receives all sums due in full and free from any deductions. CrashPlan can rely on the name and address you provide to CrashPlan as being the place of supply for sales tax, income tax, and VAT purposes. If you are tax exempt, you will provide exemption certificates for the applicable taxing authorities.

5. WARRANTY

In addition to any warranties and associated disclaimers set out in the underlying terms, each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and to perform its obligations hereunder. Further, each Party shall procure and maintain in full force and effect throughout the term of this Agreement comprehensive insurance policies and in amounts that would be considered adequate in accordance with good industry practice. MSP represents and warrants that: (i) it has and will maintain all relevant ownership or license rights to perform the Managed Services; (ii) the Managed Services will not materially damage or compromise the normal and intended operation of the Software; (iii) it will perform the Managed Services in compliance with all applicable data protection and privacy laws; and (iv) to the extent that the Managed Services incorporate open source software programs that are made available by third parties under their respective open source licenses as indicated in MSP’s published documentation (“MSP Third-Party Materials”), such MSP Third-Party Materials will not negatively affect the performance of its obligations herein and the inclusion of such MSP Third-Party Materials in the Managed Services will not create or impart any obligation on CrashPlan or the Software.

6. INDEMNIFICATION

6.1. MSP Infringement Indemnity. MSP shall defend and indemnify CrashPlan against all third-party claims, suits and proceedings resulting from or relating to: (1) any claim that the Managed Services or a part thereof violates, misappropriates, or infringes such third party’s patent, copyright, trademark, trade secret, or other proprietary rights; (2) MSP’s or Customer’s modification of the Software (whether or not in breach of Section 1 (Grant of License) of this Agreement); or (3) any personal injury and/or tangible property damage suffered by a Customer or third party in connection with the performance of the Managed Services (each, a “Managed Services Claim”), and all related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees). MSP’s defense and indemnification obligations herein will become effective upon, and are subject to, (a) CrashPlan’s prompt notification to MSP of any Managed Services Claim in writing, and (b) CrashPlan providing MSP with full and complete control, authority and information for the defense of the Managed Services Claim, provided that MSP will have no authority to enter into any settlement or admission of CrashPlan’s wrongdoing on CrashPlan’s behalf without CrashPlan’s prior written consent (not to be unreasonably withheld). At MSP’s request, CrashPlan shall reasonably cooperate with MSP in defending or settling any Managed Services Claim.  The indemnification obligations of either Party arising under this Section shall not be subject to the maximum aggregate liability amount set out in the underlying terms.

7. LIMITATION OF LIABILITY

(a) Exclusion of Damages. To the fullest extent allowed by law, CrashPlan will not be liable for any indirect, incidental, special, consequential, or punitive damages, or any lost profits, business opportunities or revenues, loss of use, or any loss of data under any theory of liability. This exclusion applies regardless of whether CrashPlan has been advised of the possibility of those damages.

(b) Cap on Monetary Liability. . The maximum aggregate liability for CrashPlan for claims related to these terms will not exceed an amount equal to the total fees paid to CrashPlan for your use of the services in the twelve (12) months prior to the event giving rise to the claim.

8. COMPLIANCE WITH LAWS

Each Party undertakes to comply fully with, and to cause its employees, directors, officers, agents, business partners, third-party representatives and any other entities or persons acting on its behalf in connection with the subject matter of this Agreement to comply with, all applicable laws, rules, regulations, ordinances, codes and/or orders, including without limitation all anti-bribery and anti-corruption laws and regulations and data protection and privacy laws in the relevant jurisdiction(s). Each Party shall not be engaged by or associated with (a) any business or activity that results or is likely to result in a conflict of interest with the other Party or which may adversely affect the other Party or its reputation; or (b) any deceptive, misleading, or unethical practices that are or might be detrimental to the other Party or the activities described in this Agreement.

9. GENERAL PROVISIONS

9.1. Entire Agreement. This Agreement, together with the TOS, represent the entire agreement between MSP and CrashPlan with respect to the subject matter hereof, and supersede all prior proposals, representations, and agreements, whether written or oral, with respect thereto. Any waiver, amendment, or modification of any right or remedy, in whole or in part under this Agreement, or any additional or different terms in any purchase orders, acknowledgments or other documents other than the Order, will not be effective unless expressly agreed to by both parties in writing or electronic form.

9.2. Assignment. Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon prior written notice to the other Party. For the avoidance of doubt, where MSP delegates or assigns any obligations described herein to an Affiliate or an assignee (as permitted under this Agreement), that third party must at all times meet the standards and be subject to the terms specified in Section 2.

9.3. Parties’ Relationship. The relationship of the Parties is that of independent contractors. This Agreement does not create an employee-employer relationship, agency, partnership or similar relationship between the Parties, and MSP may not present itself as CrashPlan’s agent or representative and neither Party may create any obligations or responsibilities on behalf of or in the name of the other Party. Except where expressly agreed to the contrary, each Party shall bear all of its own costs and expenses incurred in performing its obligations herein.