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These Terms and Conditions (“Terms”) are by and between Storsuite LLC (d/b/a Pinnacle Storage Managers, FineView Marketing, Storage Shield, or Phyrem), a Texas limited liability company (“Storsuite”) and the customer receiving Services from Storsuite (“Customer” and together with Storsuite, the “Parties”, and each a “Party”) pursuant to one or more SOWs as entered into by the Parties.
1. Applicability. These Terms govern the provision of all Services by Storsuite to Customer and each applicable SOW, which shall reference and incorporate these Terms. Notwithstanding anything herein to the contrary, the terms and conditions of any SOW shall prevail to the extent they are inconsistent with these Terms.
2. Services.
2.1. Statement of Work. Storsuite shall provide Customer the services (the “Services”), and, if applicable, deliver to Customer documents, work product, and/or other materials (the “Deliverables”), all as set forth in the applicable statements of work as agreed and executed by the Parties (each, an “SOW”). All effective SOWs and these Terms shall collectively be referred to as the “Agreement.”
2.2. Change in Services. Storsuite understands that, at times, changes may need to be made to the scope of Services initially agreed on. If Customer decides that it would like to change or extend the Services stated in an SOW, Customer shall provide Storsuite a written notice, outlining the proposed changes. Storsuite reserves the right to decline any requested changes in Services, and any changes or additional Services agreed to may be subject to additional fees and delay in delivery times. Storsuite may also, at times, modify the Services provided. Any additional or changed Services shall be subject to the Agreement.
3. Storsuite Obligations. Storsuite shall designate one of its employees or agents to serve as its primary contact to act as its authorized representative with respect to all matters pertaining to each SOW.
4. Customer Obligations. Customer shall:
4.1. Designate one of its employees or agents to serve as its primary contact to act as its authorized representative with respect to all matters pertaining to each SOW;
4.2. Respond promptly to any reasonable requests from Storsuite for instructions, information, or approvals required by Storsuite to provide the Services.
4.3. Cooperate with Storsuite in all matters relating to the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Storsuite to provide the Services.
4.4. Comply with all applicable law in relation to the Services and take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Storsuite’s provision of the Services.
5. Fees and Expenses.
5.1. Service Fees and Compensation. In consideration of the provision of the Services by Storsuite and the rights granted to Customer under the Agreement, Customer shall pay Storsuite the fees and compensation set forth in the applicable SOW. Payment to Storsuite of such fees and the reimbursement of expenses pursuant to this Section 5 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable SOW, said fee will be payable within thirty (30) days of receipt by the Customer of an invoice from Storsuite but in no event more than forty-five (45) days after completion of the Services performed pursuant to the applicable SOW.
5.2. Expense Reimbursement. Unless otherwise provided in the applicable SOW, Customer shall reimburse Storsuite for all reasonable expenses incurred within thirty (30) days of receipt by the Customer of an invoice from Storsuite accompanied by reasonable supporting documentation.
5.3. Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; and to the extent Storsuite is required to pay any such sales, use, excise, or other taxes or other duties or charges, Customer shall reimburse Storsuite in connection with its payment of fees and expenses as set forth in this Section 5. Notwithstanding the previous sentence, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Storsuite’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
5.4. Fee Disputes. If Customer has concerns about an invoice or wishes to dispute a fee contained in an invoice, Customer must do so within seven (7) days of the date of the invoice sent by Storsuite. Any charges not disputed within seven (7) days will be deemed accepted by Customer and correct. Parties both agree to work in good faith to timely resolve any disputed fees.
5.5. Late Payment. Except for invoiced amounts that the Customer has successfully disputed, if payment has not been made within fourteen (14) days of the date on the invoice sent by Storsuite, Storsuite shall charge a pro-rated late fee equal to 5% of the overdue amount for the first week the amount is overdue and 2.5% of the overdue amount for every week after that, plus interest charged on the unpaid amount in the amount of 18% per annum, or the maximum rate allowed under state or federal law, whichever is higher, except as otherwise set forth in an SOW. Customer shall also reimburse Storsuite for all costs incurred in collecting any late payments, including attorneys’ fees. In addition to all other remedies available under the Agreement or at law (which Storsuite does not waive by the exercise of any rights hereunder), Storsuite shall be entitled to suspend the provision of any Services and withhold any Deliverables if the Customer fails to pay any amounts within thirty (30) days after such amount becomes due hereunder.[A1]
6. Limited Warranty and Limitation of Liability.
6.1. Storsuite Warranties.
6.2. Customer Warranties. Customer warrants that:
6.3. Sole and Exclusive Liability. Except as otherwise set forth in an SOW, Storsuite’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
6.4. Disclaimer. STORSUITE MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 6.1 ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
7. Intellectual Property.
7.1. Intellectual Property and License. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all Deliverables or other documents, work product, or other materials, prepared by or on behalf of Storsuite in the course of performing the Services, or used by Storsuite in providing the Services, except for any Confidential Information of Customer or customer content or other materials shall be owned by Storsuite. Storsuite grants to Customer only the limited licenses expressly set forth in the applicable SOW. Customer acknowledges and agrees that the license granted to it under the Agreement does not include the right to modify, edit, translate, include in collective works, or create derivative works of the Intellectual Property Rights in whole or in part, except as specifically permitted herein. Storsuite reserves all rights not expressly granted to Customer under the Agreement.
7.2. Remedies. Customer acknowledges that a breach or threatened breach by Customer under this Section 7 would give rise to irreparable harm to Storsuite for which monetary damages would not be an adequate remedy. In the event of such a breach or a threatened breach by Customer, Storsuite will, in addition to any and all other rights and remedies that may be available to it at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to (a) post a bond or other security, or (b) prove actual damages or that monetary damages will not afford an adequate remedy.
8. Confidentiality.
8.1. Confidential Information. Either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party, including business operations and strategies, marketing plans, research material and data, creative elements, style guides, training materials, designs, effects and special effects, artwork, visual representations, and any information and materials that, due to the nature of the subject matter or circumstances surrounding the disclosure thereof, would reasonably be understood to be confidential or proprietary, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and (z) not disclose any such Confidential Information to any person or entity, except that Storsuite to its and its affiliate’s employees, agents and contractors who need to know the Confidential Information to assist Storsuite, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
8.2. Mandatory Disclosure. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure and except to the extent prevented by law, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
9. Termination; Survival.
9.1. Termination for Breach. Either Party may terminate an SOW, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party materially breaches such SOW and the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach, or such material breach is incapable of cure.
9.2. Termination for Other Causes. Either Party may terminate the Agreement, effective upon written notice to the Defaulting Party, if the Defaulting Party:
9.3. Termination for Nonpayment. Notwithstanding anything in the foregoing, Storsuite may immediately terminate the Agreement at any time on written notice if Customer fails to pay any amount when due under this Agreement: (a) and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment; or (b) more than three times in any three-month period.
9.4. Survival. The rights and obligations of the Parties set forth in this Section 9.4 and Section 7, Section 8 of these Terms, and any other right or obligation of the Parties in the Agreement which, by its nature, should survive termination or expiration of the Agreement, will survive any such termination or expiration of the Agreement.
10. Indemnification. Each Party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other Party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Losses”) that arise from, or are related to, any claim, suit, action, or proceeding by any third party relating to (a) the Indemnifying Party’s breach of the Agreement; and (b) the Indemnifying Party’s gross negligence or willful misconduct, or (c) any failure to comply with applicable law in connection with the Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this Section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (x) such counsel shall be retained at the Indemnifying Party’s sole cost, and (y) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.
11. Limitation of Liability.
12. Non-Solicitation. To the maximum extent allowable under applicable law, Customer agrees, during the term of each SOW and for one (1) year after the end of such term, not to solicit for employment or otherwise induce, influence, or encourage to terminate employment with Storsuite (or any of its affiliates and subsidiaries) any employee of Storsuite (or any of its affiliates and subsidiaries) with whom Customer had contact or who became known to Customer in connection with the Services.
13. Privacy. Customer has been given the opportunity to read Storsuite’s Privacy Policy before signing any SOW and allows for Storsuite to use Customer’s personal information in the ways specified in the Privacy Policy. Storsuite uses reputable third parties to store personal information, communicate with clients, and complete administrative tasks. However, Storsuite cannot 100% guarantee the security of these third-party services and shall not be liable for breach of third-party security systems. If Storsuite has a reason to believe that a system used has been compromised and that personal information may have been stolen, Storsuite will notify Customer as soon as reasonably possible.
14. Entire Agreement. The Agreement, including and together with any related SOWs and all Exhibits (defined below), constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
15. Precedence of Documents. The parties acknowledge and agree that if there is any conflict between the terms and conditions of these Terms and the terms and conditions of any SOW, the terms and conditions of such SOW shall supersede and control.
16. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under the Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.
Notice
Customer:
17. Severability. If any term or provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, Parties shall negotiate in good faith to modify the Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
18. Amendments. No amendment to or modification of or rescission, termination, or discharge of the Agreement is effective unless it is in writing and signed by each Party.
19. Waiver. No waiver by any Party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
20. Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Storsuite. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under the Agreement. Storsuite may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Storsuite’s assets without Customer’s consent.
21. Successors and Assigns. The Agreement is binding on and inures to the benefit of the Parties to the Agreement and their respective permitted successors and permitted assigns.
22. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Storsuite shall be under its own control, Customer being interested only in the results thereof. Storsuite shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in the Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
23. No Third-Party Beneficiaries. The Agreement benefits solely the Parties to the Agreement and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
24. Interpretation. All exhibits, schedules, and documents attached hereto (“Exhibits”) are incorporated herein by this reference, and any new or updated Exhibits issued by the Parties shall be incorporated into the Agreement upon mutual written consent of the Parties or as otherwise expressly permitted by the Agreement. All of the recitals of the Agreement are incorporated herein by this reference and are made a part hereof as though set forth herein. All references to sections and schedules are to sections and schedules in or to the Agreement unless otherwise specified. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in the Agreement shall refer to the Agreement as a whole and not to any particular provision hereof or thereof. When used in the Agreement, the word “including” shall mean “including but not limited to” the word “or” is not exclusive. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.
25. Dispute Resolution. If a dispute, controversy, or claim arises out of or relating to the Agreement (the “Dispute”) cannot be amicably resolved by negotiation, the Parties may attempt to settle the Dispute with the help of a mutually agreed-upon mediator. Except for attorney fees, all other costs associated with the mediation will be shared equally. In adherence to Section 5.5 of these Terms, Customer will be solely responsible for all Dispute resolution costs (including reasonable attorney fees) if a dispute arises related exclusively to failure to make payment under the Agreement. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, either Party may commence binding arbitration in accordance with the provisions below in Section 25.1. Nothing contained in this Section 25 shall bar the right of either Party to seek and obtain provisional injunctive or equitable relief or its equivalent from a court of competent jurisdiction
26. Prevailing Party. A prevailing Party shall have the right to collect from the other Party its reasonable costs and necessary disbursements and reasonable attorneys’ fees incurred in enforcing the Agreement.
27. Choice of Law. The Agreement and all related documents including all Exhibits and all matters arising out of or relating to the Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
28. Choice of Forum. Subject to Section 25, each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to the Agreement, including all Exhibits and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Western District of Texas or the courts of the State of Texas sitting in Harris County, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the Western District of Texas or the courts of the State of Texas sitting in Harris County. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
29. Counterparts. Each SOW may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of an SOW delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the SOW.
30. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations of the Customer to make payments to Storsuite hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics and pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of the Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within fifteen (15) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
