Last Updated: December 4, 2019

THIS ONLINE Managed Service Provider (“MSP”) MASTER SUBSCRIPTION AGREEMENT AND ITS CORRESPONDING ORDER FORM(S) (COLLECTIVELY REFERRED TO AS “AGREEMENT”) GOVERN MSP’S USE OF OPSRAMP, INC.’S SOFTWARE-AS-A-SERVICE SUBSCRIPTION AND RELATED SERVICES. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SUBSCRIPTION SERVICE. BY ISSUING AN ORDER FORM FOR OPSRAMP’S SUBSCRIPTION SERVICE EITHER DIRECTLY OR INDIRECTLY, OR BY ACCEPTING THIS AGREEMENT BY ANY ONLINE OR DIGITAL PROCESS, OR BY USING THE SUBSCRIPTION SERVICE, MSP HEREBY ACCEPTS THE TERMS AND CONDITIONS SET OUT BELOW. THE INDIVIDUAL ACCEPTING THIS AGREEMENT HEREBY REPRESENTS THAT SUCH INDIVIDUAL IS AN AUTHORIZED REPRESENTATIVE OF MSP AND IS AUTHORIZED TO OBLIGATE MSP TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, AND SUCH INDIVIDUAL ACKNOWLEDGES THAT OPSRAMP RELIES ON SUCH REPRESENTATION IN ENTERING INTO THIS AGREEMENT. OPSRAMP MAY MODIFY THIS AGREEMENT FROM TIME TO TIME, AND CHANGES TO THIS AGREEMENT WILL BE POSTED ON THE OPSRAMP WEBSITE AND REVISIONS WILL BE INDICATED BY VERSION DATE. MSP AGREES TO BE BOUND TO ANY CHANGES TO THIS AGREEMENT WHEN MSP USES THE SUBSCRIPTION SERVICE AFTER ANY SUCH MODIFICATION BECOMES EFFECTIVE. MODIFICATIONS TO THIS AGREEMENT WILL BECOME EFFECTIVE THIRTY (30) DAYS AFTER THE DATE LAST UPDATED, AS SHOWN ABOVE.

This Agreement, including documents referenced herein, represents the entire agreement between the parties and supersedes all prior written and oral understandings between OpsRamp and MSP, including any interim agreements executed by the parties. The Subscription Service and related services will be performed by OpsRamp in accordance with the Terms and Conditions set forth below.

TERMS AND CONDITIONS

1. DEFINITIONS. Any capitalized terms used in this Agreement that are not otherwise defined in this Agreement shall have the meaning as set forth below:
   1. “Affiliate” shall mean any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity, where “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
   2. “Authorized Users” shall mean the employees or agents of MSP and End Users, as well as contractors performing services for MSP or End Users, who are authorized to access and use the Subscription Service.
   3. “Documentation” shall mean the OpsRamp product documentation relating to the operation and use of the Subscription Service, including technical program documentation, user manuals, operating instructions and release notes, as updated from time to time by OpsRamp as provided in the Subscription Service.
   4. “End User” shall mean a customer of MSP for which MSP provides managed IT services that include use of the Subscription Services for the management of Resources owned and/or controlled by the End User.
   5. “Managed Resource” shall mean any Resource that has been selected by MSP to be managed by the Subscription Service.
   6. “Order Form” shall mean an ordering document that represents the purchase of the Subscription Service, and any subsequent documents that from time to time are executed by MSP and OpsRamp with reference to this Agreement.
   7. “Professional Services” shall mean any implementation, training, consulting, data migration, conversion, integration or other services provided by OpsRamp to MSP, as set forth in an Order Form.
   8. “Resident Software” shall mean certain downloadable software components that MSP must deploy on MSP’s or an End User’s servers and/or other assets for data collection and communication that is required for performance of the Subscription Service.
   9. “Resource” shall mean any physical asset (such as servers, network switches, and routers) or virtual asset (such as virtual machines, cloud instances, storage buckets, and databases) that has been assigned a resource identification on the Subscription Service, as more fully described on the Resource Description document, located at https://www.opsramp.com/legal/resource-description/, as may be updated from time to time by OpsRamp.
   10. “Service Levels” shall mean the service availability and response time requirements set forth in the Support Services and Service Level Terms document (the “Support Services and Service Level Terms”) located at https://www.opsramp.com/legal/support-services/, as may be updated from time to time by OpsRamp.
   11. “Subscription Service” shall mean the web-based software-as-a-service offering of OpsRamp that provides provisioning and management functionality for Resources, and also includes the Resident Software.
   12. “Support Services” shall mean OpsRamp’s provision of Updates as set forth in Section ‎3.1 hereof and technical support as more fully described in the Support Services and Service Level Terms, as may be updated from time to time by OpsRamp.
   13. “Term” shall have the meaning ascribed thereto in Section ‎8.1 hereof.
   14. “Use Data” shall mean electronic data related to Resources that is collected by the Resident Software or otherwise transferred by or for MSP, End Users or the Authorized Users and processed in the Subscription Service.
2. MANAGED SERVICES USAGE
   1. MSP provides managed IT services to End Users. OpsRamp hereby authorizes MSP to access and use the Subscription Services for the sole purpose of managing Resources owned and/or controlled by MSP and the End Users as part of MSP’s managed IT services offering. MSP may not use or access the Subscription Service for any other purpose.
   2. MSP shall obtain binding express written agreement by each End User to be bound by either (1) an agreement with MSP containing the “Minimum Terms” set forth below or (2) the then-current version of the OpsRamp Subscription Service Agreement. The method by which End Users shall become bound to the Subscription Service Agreement shall be determined by OpsRamp, and may include hard copy or digital signatures, online click accept format, or method. MSP shall provide OpsRamp with copies of the Minimum Terms or the Subscription Services Agreements executed by the End Users, as applicable. MSP agrees to use commercially reasonable efforts to enforce the Minimum Terms or Subscription Service Agreements with its End Users. MSP may not make any changes to the Subscription Service Agreements without OpsRamp’s prior written consent. The Minimum Terms shall: (i) prohibit assignment, timesharing, rental and distribution of the Subscription Service; (ii) prohibit reverse compilation and/or reverse assembly of all or any portion of the Subscription Service; (iii) disclaim all warranties with respect to the Subscription Service other than warranties granted by MSP itself to the End User; and (iv) disclaim third party provider’s liability for any indirect, incidental or consequential damages arising from the use and performance of the Subscription Service. OpsRamp shall determine whether the Minimum Terms or the Subscription Service Agreement shall apply. If OpsRamp has not provided MSP with specific instructions in this regard, then the Minimum Terms shall apply
   3. OpsRamp grants MSP a non-exclusive, non-transferable, royalty-free, revocable license during the term of this Agreement to use OpsRamps trademarks and logos (“OpsRamp Marks”) solely in connection with the marketing of the Subscription Service as permitted in this Agreement, without the right to sublicense. Any other use of the OpsRamp Marks is not permitted. MSP agrees to use the OpsRamp Marks only as stated in this Agreement, and in doing so, to follow the standards of quality established by OpsRamp and to adhere to the trademark usage guidelines made available by OpsRamp from time to time. MSP agrees not to use the OpsRamp Marks in combination with any other trade name, trademark or service mark without the prior written approval of OpsRamp. Upon OpsRamp’s request, MSP will provide OpsRamp with representative samples of the use of the OpsRamp Marks contained within any materials including web pages, marketing, advertising, promotional and collateral materials. All goodwill created by the use of OpsRamp Marks by MSP is for the sole benefit of and accrues to OpsRamp. MSP acquires no right, title or interest in the OpsRamp Marks or the goodwill associated with them, other than the right to use the OpsRamp Marks according to this Agreement.
3. SUBSCRIPTION SERVICES
   1. Subject to the terms of this Agreement, OpsRamp will use commercially reasonable efforts to provide MSP with the Subscription Service in accordance with the Service Levels, as more fully described in the Support Services and Service Level Terms. .
   2. Subject to compliance by MSP with the terms of this Agreement, OpsRamp authorizes MSP, through its Authorized Users, to access and use the Subscription Service for and on behalf of itself and the End Users during the Term in accordance with the Documentation. This authorization is non-exclusive and non-transferrable.
   3. With respect to the Resident Software that is distributed or provided to MSP for use on MSP servers, End User services and/or Resources, OpsRamp hereby grants MSP a non-exclusive, non-transferable, non-sublicensable license to use such Resident Software during the Term only in connection with the Subscription Service
   4. Authorization to access the Subscription Service is granted solely to MSP and the Authorized Users.
   5. Although OpsRamp has no obligation to monitor MSP’s use of the Subscription Service, OpsRamp may do so and may prohibit any use of the Subscription Service it believes may be (or alleged to be) in violation of this Agreement.
   6. No rights or licenses are granted by OpsRamp except as expressly set forth herein
4. SUPPORT SERVICES
   1. As part of Support Services, OpsRamp may, from time to time, develop and implement into the Subscription Service enhancements, upgrades, updates, improvements, modifications, extensions and other changes (“Updates”). Updates implemented into the Subscription Service shall be deemed part of the Subscription Service. MSP hereby authorizes OpsRamp to implement such Updates.
   2. MSP is responsible for providing Level 1 Support to End Users. “Level 1 Support” shall mean accepting requests from End Users for assistance with the Subscription Service, determining the nature of the request (i.e., usability, feature request, fault identification), recording information pertinent to addressing the request and attempting to respond to / resolve the request in a manner satisfactory to the End User. Level 1 Support shall not mean engaging in any engineering level diagnostics of Subscription Services issues or undertaking any other special evaluative processes for which training by OpsRamp has not been made available to MSP. MSP shall not instruct End Users or End User Authorized Users to contact OpsRamp for support and all such contact will only be between MSP and OpsRamp technical personnel. MSP is responsible to train its technical support personnel to be sufficiently knowledgeable about the functionality and operations of the Subscription Service as necessary to provide Level 1 Support. If such personnel do not maintain such an adequate level of knowledge, then MSP shall order necessary training services from OpsRamp for such personnel. OpsRamp has no obligation to provide support to MSP technical support personnel who do not have or maintain adequate levels of knowledge about the features, functionality and operation of the Subscription Service. MSP shall be responsible for distributing and installing Resident Software on all servers and Resources as required for proper operation of the Subscription Services.
   3. Subject to the terms hereof, OpsRamp will provide MSP with reasonable technical support for the Subscription Service as set forth in the Support Services and Service Level Terms
5. PROFESSIONAL SERVICES
   An Order Form for Professional Services shall specify the specific Professional Services ordered, accompanying specifications, if any, and applicable pricing.
6. RESTRICTIONS AND RESPONSIBILITIES
   1. MSP shall not (and shall not permit others to) do the following with respect to the Subscription Service: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share, operate as a service bureau, or otherwise make any of it available for access by third parties; (ii) access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Subscription Service; (iii) disassemble, reverse engineer, or decompile it; (iv) copy, create derivative works based on or otherwise modify it, (v) remove or modify a copyright, trademark, logo or other proprietary rights notice or brand labeling in it; (vi) use it to reproduce, distribute, display, transmit, or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (vii) use it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs or otherwise engage, in a malicious act or disrupt its security, integrity or operation; (viii) publish or release any benchmarking or performance data applicable to the Subscription Service; or (ix) access or disable any OpsRamp or third party data, software or network. MSP represents, covenants, and warrants that MSP will use the Subscription Service only in compliance with the Documentation and all applicable laws and regulations. MSP hereby agrees to indemnify and hold harmless OpsRamp against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing restrictions.
   2. MSP shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). MSP shall also be responsible for maintaining the security of the Equipment, MSP account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of MSP’s account or the Equipment with or without MSP’s knowledge or consent.
   3. MSP shall not: (i) use or permit the use of the Subscription Service for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law; (ii) transmit Use Data using the Subscription Service that infringes upon or misappropriates the intellectual property or privacy rights of any third party; (iii) perform any load testing of the Subscription Service or attempt to probe, scan or test the vulnerability of the Subscription Service without proper authorization; or (iv) log into a server or account that MSP is not authorized to access.
   4. MSP is responsible for all activity occurring under Authorized User accounts and for each Authorized User’s compliance with all terms and conditions of this Agreement. MSP shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Use Data generated, uploaded and transmitted by MSP and Authorized Users. MSP shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Service and notify OpsRamp immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
   5. MSP acknowledges that the successful and timely provision of the Subscription Service shall require the good faith cooperation of MSP. OpsRamp shall not be liable for any failure to provide the Subscription Service that arises from MSP’s failure to cooperate in good faith with OpsRamp.
7. CONFIDENTIALITY; PROPRIETARY RIGHTS
   1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of OpsRamp includes non-public information regarding features, functionality and performance of the Subscription Service. Proprietary Information of MSP includes the Use Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information and (ii) not to use (except in performance of the Subscription Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without violation of this Agreement, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, as evidenced by documentation, or (e) is required to be disclosed by law, as advised by the Receiving Party’s legal counsel. If MSP has entered into a non-disclosure agreement with OpsRamp prior to the Effective Date, then upon the Effective Date such non-disclosure agreement will be deemed terminated and replaced by the terms of this Section 7 as applicable to the performance of this Agreement.
   2. OpsRamp shall own and retain all right, title and interest in and to (a) the Subscription Service and all Updates thereto, (b) any software, applications, inventions or other technology developed in connection with the performance of Professional Services or Support Services, and (c) all intellectual property rights related to any of the foregoing.
   3. MSP, or End Users, as applicable, shall own all right, title and interest in and to the Use Data. MSP hereby grants to OpsRamp a worldwide, non-exclusive, fully paid-up license to use the Use Data in any manner reasonably necessary to perform the Subscription Service, Professional Services and Support Services. MSP represents and warrants that MSP has a license granting it the rights necessary to permit it to grant the foregoing license. Use Data is retained by OpsRamp in accordance with the OpsRamp data retention policy, which MSP may obtain upon request. It is MSP’s responsibility to download those portions of the Use Data that MSP wants to retain prior to permanent deletion by OpsRamp in accordance with such policy.
   4. OpsRamp shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Service and related systems and technologies (including, without limitation, information concerning Use Data and data derived therefrom), and OpsRamp will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Subscription Service and for other development, diagnostic and corrective purposes in connection with the Subscription Service and other OpsRamp offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business.
   5. MSP acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about the Subscription Service provided by MSP to OpsRamp are non-confidential and OpsRamp (as well as any designee of OpsRamp) shall be entitled to the unrestricted use and dissemination of this information for any purpose, commercial or otherwise, without acknowledgment or compensation to MSP.
8. PAYMENT OF FEES
   1. MSP will pay OpsRamp the then-applicable fees described in the Order Form for the Subscription Service and Professional Services in accordance with the terms therein (“Fees”).
   2. Fees for Subscription Service will be invoiced in accordance with the terms of the Order Form (“Committed Resources”), and may be charged in advance, in arrears, or a combination of both. Fees may be calculated based upon number of Managed Resources, hours Managed Resources are managed, or other criteria as set forth in an accepted Order Form.
   3. Additionally, if MSP’s use of the Subscription Service exceeds the Committed Resources, such excess usage will be invoiced (“Quarterly True-up”) at the non-committed-Resource rate as set forth in the Order Form. Fees for Professional Services will be invoiced as set forth in an Order Form or statement of work. Upon thirty (30) days prior notice to MSP (which may be sent by email) OpsRamp reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term. If MSP believes OpsRamp has billed MSP incorrectly, MSP must contact OpsRamp within thirty (30) days of the due date of the applicable invoice. Except for an adjustment or credit, if any, that may be forthcoming as a result of an incorrect billing, all payments are final and non-refundable.
   4. MSP acknowledges that the monthly Committed Resources Fee is based on MSP’s access requirements as provided to OpsRamp by MSP as further set forth on an Order Form. In the event MSP wishes to subsequently expand access to additional users, sites, other assets, or Affiliates, as applicable, MSP may purchase additional Committed Resources by executing a separate Order Form.
   5. Invoices are due and payable in full within thirty (30) days of the invoice date. Unpaid amounts are subject to a finance charge of 1.5% per month (or the maximum permitted by law, whichever is lower) on any outstanding balance. OpsRamp reserves the right to charge for all expenses of collection, including reasonable attorneys’ fees. Non-payment of invoices may result in suspension or termination of the Subscription Service.
   6. MSP shall be responsible for all taxes associated with Subscription Service, and other services provided under this Agreement, other than U.S. taxes based on OpsRamp’s net income. All payments shall be made in U.S. dollars unless otherwise agreed by OpsRamp in writing.
   7. At reasonable times and upon reasonable prior notice, OpsRamp may audit the business records of MSP to ensure compliance with the terms of this Agreement and to verify the number and kind of Resources being managed by the Subscription Service pursuant to this Agreement and any outstanding Order Forms. OpsRamp will bear all costs of audits unless an audit shows greater than a five percent (5%) error in Fees owed in favor of OpsRamp, in which case MSP will bear all reasonable expenses incurred by OpsRamp to perform the audit.
9. TERM AND TERMINATION
   1. Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the Order Form (the “Initial Service Term”), and, unless otherwise provided in an Order Form, shall be automatically renewed for additional periods of one (1) year (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
   2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within the thirty (30) day notice period.
   3. Upon termination or expiration of this Agreement, MSP shall cease to access the Subscription Service and shall delete and destroy all copies of Resident Software in MSP’s or an End User’s possession. MSP will pay in full for the Subscription Service up to and including the last day on which the Subscription Service is provided. Upon any termination, OpsRamp will make all then-current Use Data available to MSP for electronic retrieval for a period of thirty (30) days, but thereafter OpsRamp may, but is not obligated to, delete stored Use Data.
   4. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
10. WARRANTY AND DISCLAIMER
    1. OpsRamp shall use reasonable efforts consistent with prevailing industry standards to maintain the Subscription Service in a manner which minimizes errors and interruptions in the Subscription Service and shall perform the Professional Services and Support Services in a professional and workmanlike manner.
    2. The Subscription Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by OpsRamp or by third-party providers, or because of other causes beyond OpsRamp’s reasonable control, but OpsRamp shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
    3. OPSRAMP DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SUBSCRIPTION SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SUBSCRIPTION SERVICE AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND OPSRAMP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. INDEMNITY
    1. OpsRamp shall defend and hold MSP harmless from liability to third parties resulting from infringement by the Subscription Service of any United States patent or any copyright or misappropriation of any trade secret, provided OpsRamp is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. OpsRamp will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to infringement claims arising from (i) a modification of the Subscription Service by any party other than OpsRamp; (ii) a combination of the Subscription Service with other software products, processes or materials not supplied by OpsRamp; or (iii) use of the Subscription Service not in accordance with this Agreement or the Documentation.
    2. If, due to a claim of infringement, the Subscription Service is held by a court of competent jurisdiction to be or is believed by OpsRamp to be infringing, OpsRamp may, at its option and expense (a) replace or modify the Subscription Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for MSP a license to continue using the Subscription Service, or (c) if neither of the foregoing is commercially practicable in OpsRamp’s judgment, terminate this Agreement and MSP’s rights hereunder and provide MSP a refund of any fees prepaid to OpsRamp and not used for the remainder of the Subscription Service.
    3. MSP shall defend, indemnify and hold OpsRamp harmless from liability, damages and expenses, including attorney’s fees, relating to claims by End Users arising from a breach by MSP of the terms of this Agreement or the services that MSP provides to End Users (other than the Subscription Services), provided MSP is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. MSP will not be responsible for any settlement it does not approve in writing.
12. LIMITATION OF LIABILITY
    NOTWITHSTANDING ANYTHING TO THE CONTRARY, OPSRAMP AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OF THE SUBSCRIPTION SERVICE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR LOSS OF BUSINESS OR REVENUE; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR UNAUTHORIZED ACCESS TO THE SUBSCRIPTION SERVICE; (D) FOR ANY MATTER BEYOND OPSRAMP’S REASONABLE CONTROL; OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES RECEIVED BY OPSRAMP FOR THE SUBSCRIPTION SERVICE UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT OPSRAMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. MISCELLANEOUS
    1. Publicity. MSP agrees that OpsRamp may use MSP’s name and may disclose that MSP is a customer of OpsRamp products and services in OpsRamp’s advertising, press, promotion and similar public disclosures; provided, however, that such advertising, promotion or similar public disclosures shall not indicate that MSP in any way endorses any OpsRamp products or services without prior written permission from MSP. MSP agrees that OpsRamp may issue a press release regarding their relationship, provided that the parties mutually agree to the content and timing of such release which approval shall not be unreasonably withheld or delayed. Upon a request from OpsRamp, MSP will serve as a reference site for the Subscription Service and will prepare with OpsRamp a case study of MSP’s use of the Subscription Service.
    2. Non-Solicitation. MSP acknowledges and agrees that OpsRamp has made a significant investment in recruiting, training and retaining its employees. Accordingly, MSP agrees that, during the Term of this Agreement and for a period of one year thereafter MSP will not directly or indirectly solicit or hire any employee or contractor of OpsRamp who is or becomes known to MSP in connection with this Agreement.
    3. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    4. Amendment. No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties, unless otherwise provided for herein.
    5. Assignment. This Agreement is not assignable, transferable or sublicensable by MSP except with OpsRamp’s prior written consent. OpsRamp may assign this Agreement to an Affiliate or to any entity that purchases substantially all of the equity or assets of the business unit of OpsRamp that is responsible for the performance of this Agreement.
    6. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and MSP does not have any authority of any kind to bind OpsRamp in any respect whatsoever.
    7. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by a recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
    8. Law and Jurisdiction. All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement shall be governed and construed by the law of California, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against a party arising out of or related in any respect to this Agreement shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over Santa Clara County, State of California. The parties hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Notwithstanding the foregoing, OpsRamp may seek equitable relief in any applicable jurisdiction in an action for protection of OpsRamp’s intellectual property. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement
    9. Force Majeure. OpsRamp shall not be responsible or liable for any loss, damage, delay or failure to act caused by war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, earthquake, weather, interruption to or absence of energy supplies, lock outs, strikes, other labor disputes, the failure of OpsRamp’s suppliers or carriers to meet their contractual obligations, or, without limitation, any other cause beyond OpsRamp’s reasonable control (“Force Majeure Event”).
    10. No Export. MSP may not remove or export from the United States or allow the export or re-export of the Subscription Service, software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
    11. U.S. Government Usage. As defined in FAR section 2.101, the Subscription Service and Documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
    12. High Risk and Restricted Data Activities. The Subscription Service is not fault-tolerant and is not designed, manufactured or intended for use or resale (i) as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Subscription Services could lead directly to death, personal injury, or severe physical or environmental damage or (ii) for containing or processing health, financial or other similar restricted or sensitive data that is regulated under law including, but not limited to HIPAA (Health Insurance Portability and Accountability Act), GLBA (Gramm-Leach-Bliley Act) or similar federal or state data security statutes (“High Risk and Restricted Data Activities”). OpsRamp and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk and Restricted Data Activities.
    13. GDPR Compliance. If the use, processing and/or transfer of Subscriber Data in the Subscription Service is subject to regulation under the European Union General Data Protection Regulation (GDPR), then the parties will enter into OpsRamp’s Data Processing Agreement (DPA) as located at https://www.opsramp.com/wp-content/uploads/2022/07/Online-Data-Processing-Agreement_20190710.docx.pdf, as may be updated by OpsRamp from time to time. Upon execution thereof, such DPA will be deemed issued under and incorporated by reference into this Agreement. This provision does not apply to Authorized Users that are using the Subscription Service under an agreement with a managed services provider that is providing managed services to the Authorized Users.
    14. Data Backup. The Subscription Service will maintain certain data transferred for the purpose of the performance of the Subscription Service. Although OpsRamp performs regular routine backups of data, Subscriber is primarily responsible for all data that Subscriber has transferred (including Subscriber Data) or that relates to any activity Subscriber has undertaken using the Subscription Service. Subscriber agrees that OpsRamp shall have no liability to Subscriber for any loss or corruption of any such data, and Subscriber hereby waives any right of action against OpsRamp arising from any such loss or corruption of such data.