Professional Services Agreement

This Professional Services Agreement (the “Agreement”) governs your (“Client”) use of and access to professional products and services, as described in the Statement of Work (“Services”) provided by Fullsteam Software Holdings LLC DBA Storage Commander (“Service Provider”). Each Statement of Work is subject to, and incorporated into, the terms and conditions of this Agreement. Client and Service Provider sometimes are individually each referred to as a “Party”, and collectively referred to herein as the “Parties”

Should there be any inconsistency between this Agreement and the Statement of Work; the documents shall be interpreted in the following order of priority: (1) any portion of the Statement of Work that expressly, and by reference to the affected provision of this Agreement, modifies this Agreement; (2) this Agreement; and (3) the remainder of the Statement of Work. The terms and conditions of this Agreement shall control over any terms, conditions, or other representation, oral or written in any solicitation, request for proposal, proposal, purchase order, letter, email, acknowledgement, or other correspondence.

Professional Services.

General. Service Provider shall provide the Services to Customer pursuant to one or more Statements of Work and in accordance with the terms and conditions of this Agreement.

Change Order. Service Provider is not required to perform services that are inconsistent with the Statement of Work or terms and conditions set forth in this Agreement. Either party may request changes to the scope of Services. To be effective, such change(s) must be agreed in writing and signed by the Parties. Service Provider is not required to perform, and may cease performance of, any changes until and unless such changes are agreed to in writing and signed by the parties.

Fees, Taxes, and Refund.

Fees. Fees for the Services are specified in the Statement of Work. Service Provider shall issue Client the first invoice upon execution of the applicable Statement of Work. Client will pay all fees set forth in the Statement of Work within 14 days after the invoice date. During each Statement of Work renewal term, the terms and conditions of this Agreement shall remain in full force and effect. Client authorizes Service Provider to store your payment method(s) and to automatically charge your payment method(s) upon invoicing or renewal (as applicable) until Client cancels or Service Provider otherwise terminates the Services. Alternatively, Service Provider may use a third party payment processor (the “Payment Processor”), to process payment, as applicable, in connection with your use of the Services. The processing of such payments will be subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer in addition to this Agreement. Service Provider is not responsible for any errors by the Payment Processor or for any security breaches suffered by such entity.

Taxes. All fees are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Client pursuant to this Agreement. Client shall be responsible for all such charges, costs, and taxes, and all amounts paid and payable by Service Provider in discharge of the foregoing taxes. This provision shall survive the termination of this Agreement.

Refunds. All fees are non-cancelable and non-refundable, except as otherwise provided for herein.

Failure to Pay. Failure to timely pay invoices shall entitle Service Provider, at its option, to (i) suspend delivery of Services without liability pending payment for Services, and/or (ii) assess a late charge on past due accounts at 1.5% or the maximum rate allowable by law. Service Provider reserves the right to require satisfactory security or guaranty that an invoice will be promptly paid when due if at any time Service Provider determines in its reasonable discretion that Client’s financial status has become impaired or otherwise unsatisfactory.

Term and Termination

This Agreement will be effective as of the Effective Date and continue until six (6) months after the last SOW expires or terminates unless earlier terminated as provided in the Agreement. 

Unless as otherwise set forth in an SOW, your Services will automatically renew for consecutive periods equivalent to the initial Services Period, unless You provide Service Provider thirty (30) days’ notice of non-renewal prior to the annual renewal date. Such renewed Services will be charged at the then-current fees. 

If either party materially breaches a term of this Agreement or any SOW hereunder and fails to correct the breach within thirty (30) days of written notice of the breach, then the non-breaching party may suspend and/or terminate the SOW under which the breach occurred after thirty (30) days or earlier if not curable. If we terminate the SOW as specified in the preceding sentence, Client must pay within thirty (30) days all undisputed amounts that have accrued prior to such termination, as well as all undisputed sums remaining unpaid for the Services under such SOW.

Delays/Cancellations.

Delays. Client’s failure to provide address lists, data files, or any other required information to Service Provider in a timely manner may require that the scheduled Services be delayed or canceled and may result in additional charges to Client.

Cancellations. Cancellation by Client hereunder shall not relieve Client from its obligations herein for any fee and additional expenses owed to Service Provider.

Right of Review. Service Provider reserves the unfettered right and discretion to review, approve or reject, use or decline use, in its sole discretion, any Client Materials, Service Provider Materials, or any other content or materials.

Ownership.

Client Materials. Client grants to Service Provider, and Service Provider accepts from Client, during the term of the Statement of Work, a royalty free, nonexclusive, nontransferable, license to use, reproduce, distribute and display any information provided by Client including, but not limited to, inserts, coupons, graphics, advertising copy, ideas, concepts, and marketing plans, tradenames, trademarks, service marks and logos (collectively the “Client Materials”) for the sole purpose of performing Service Provider’s obligations under this Agreement. Client further grants to Service Provider, and Service Provider accepts from Client, during the term of this Agreement, a royalty free, nonexclusive, nontransferable, license to use, reproduce, distribute, modify (including the right to create derivative works of), transmit, and display the Client Materials and to utilize the Client Materials in creation of the Service Provider Materials. Except as specifically set forth herein, no right, title or interest in any of the Client Materials is intended to be given to or acquired by Service Provider. Client represents and warrants that it has the authority to grant the license contained in this Section. Further, Service Provider will not be responsible for any back up, recovery or other steps required to ensure that Client Materials are recoverable in the case of data loss. Client is responsible for backing up Client Materials on a regular basis.

Customer Data. Client acknowledges and agrees that, in the course of providing the Services, both Service Provider and Client will collect, store, and use information about data and information collected by Service Provider in the course of providing the Services and may include, without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) personal information (such as age, race, gender, income level, and education level); (iii) information about customer transactions; (iv) information on how individuals interact with the Services; (v) customer purchase history; and (vi) location information (collectively “Customer Data”). If Client wishes to use any Customer Data for any purpose, Client shall be solely responsible for putting in place its own separate privacy policy governing use of Customer Data and shall have sole liability for Client’s use of Customer Data.

Service Provider Materials. Client acknowledges and agrees that, in the course of providing the Services, Service Provider may use Client Materials to create inserts, coupons, graphics, advertising copy, ideas, concepts, and marketing plans (“Service Provider Materials”).

Anonymized Data. Service Provider may anonymize Customer Data (“Anonymized Data”) and may use Anonymized Data for any lawful purpose. Service Provider retains all intellectual property rights in Anonymized Data.

Client Obligations. Client shall comply with applicable state and federal laws, including, without limitation, data privacy and data security obligations, compliance with any legal requirements applicable to the content or materials used hereunder. Client understands and agrees that Client is solely responsible for ensuring that Client’s Use of the Services complies with all applicable laws including but not limited to the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. Section 227 et seq., and all implementing rules, orders and regulations of the Federal Communications Commission, 47 C.F.R. Section 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310, the Do-Not-Call Implementation Act and the Do-Not-Call list registry rules (http://www.donotcall.gov), the CAN Spam Act of 2003, and all other federal, state, local or international laws, rules, regulations, and guidelines relating to calling, texting, telemarketing and telephonic solicitation (collectively, the “Calling Laws”). Client is solely responsible for complying with and providing any consent and notice requirements required for lawfully sending advertisements and promotions hereunder, whether such advertisements and promotions are displayed online or on a mobile device, and whether such advertisements and promotions are sent in the form of electronic mail, Short Message Service (SMS), Multimedia Messaging Service (MMS), or other form of electronic communications. Client is responsible for honoring consumer opt-outs immediately and shall not transmit or cause to be transmitted calls or SMS or MMS text messages to any recipient who has opted-out, withdrawn consent or for whom Client does not otherwise have all necessary consents and permissions to communicate with through the Services. Client acknowledges that solely Client is responsible and liable for any and all phone numbers that are acquired for or on behalf of Client in connection with the Services, and Client certifies that it is authorized to enroll any and all such phone numbers to receive calls and SMS and MMS text messages.

Client Represented by Agency.

Appointment. If Client is represented under this Agreement by an advertising agency which has been duly appointed by Client to act on Client’s behalf (“Agency”), the Agency representative represents and warrants that he or she has all necessary authority to enter in this Agreement on behalf of Agency. Agency represents and warrants that it has all necessary authority to enter into this Agreement on behalf of Client and has the express authority of the Client to bind Client.

Liability. Each Client and Agency shall be jointly and severally liable for the obligations of the other under all terms of this Agreement and any Statement of Work.

Agency Fees. Agency shall be liable for payment of all fees specified herein and in the Statement of Work, regardless of any contrary language in any past, contemporaneous, or future writing, and regardless of whether Agency receives payment from Client. Agency will make available to Service Provider upon request, written confirmation of the relationship between Agency and Client and of Agency’s authorization to act on Clients behalf in connection with this Agreement. In addition, upon the request of Service Provider, Agency will confirm whether Client has paid to Agency in advance funds sufficient to make payments pursuant to this Agreement.

Recourse. In the event of a breach of any Client obligation, Service Provider may pursue satisfaction from Client and Agency jointly, severally, or individually in its discretion. Service Provider assumes no responsibilities or obligations owed between Client and Agency.

Security. Each party shall use reasonable administrative, technical and physical measures, as are consistent with applicable law concerning data security practices applicable to Customer Data to help prevent unauthorized use, access, disclosure/theft, modification or distribution of Customer Data (a “Data Breach”). Each party will notify the other party as soon as reasonably practicable under the circumstances (unless required to respond more promptly under applicable law) after becoming aware of any facts or circumstances indicating that a Data Breach involving such party’s (the “Breached Party”) information technology systems or other systems or processes has or may have occurred and will provide the other party a detailed description of the Data Breach, the Customer Data involved, and such other information as the other party may reasonably request concerning the Data Breach. The Breached Party shall (a) use reasonable efforts to mitigate the effects of the Data Breach, (b) commence a forensics investigation of the Data Breach and provide a report (to be maintained in confidence) thereof to the other part within five (5) days of completion of the investigation, and (c) employ commercially reasonable efforts to correct any identified deficiencies in its information technology systems or other systems or processes. Unless prohibited by applicable law, the Breached Party shall also notify the other party of any third-party legal actions relating to any Data Breach of which the Breached Party becomes aware including, but not limited to, any related legal actions or inquiries initiated by any government entity.

Advertising Materials. Service Provider may, at its discretion, include the Service Provider Materials in Service Provider portfolio and samples of corporate sales and marketing materials used for the purpose of promoting its business and product offerings to others. Client understands that it will not receive any compensation as a result of such use.

WARRANTIES. EXCEPT AS SPECIFICALLY DESCRIBED HEREIN, SERVICE PROVIDER MAKES NO WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO ANY SERVICES OR MATERIALS SUPPLIED OR PRODUCED HEREUNDER INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, INCLUDING, BUT NOT LIMITED TO,ANY WARRANTIES ASSOCIATED WITH THE ACCURACY OF ANY DATABASES, MAILING LISTS, AND TARGET MARKET INFORMATION PROVIDED OR USED IN THE PERFORMANCE OF THIS AGREEMENT. SERVICE PROVIDER HEREBY DISCLAIMS ANY SUCH WARRANTY. SERVICE PROVIDER DISCLAIMS ANY WARRANTY REGARDING (A) THE PRECISE NUMBER OF PERSONS WHO WILL ACCESS ANY ADVERTISEMENT OR PROMOTION TO BE DISPLAYED ONLINE OR ON A MOBILE DEVICE, (B) ANY BENEFIT CLIENT MIGHT OBTAIN FROM ANY SUCH ADVERTISING OR PROMOTION, AND (C) THE SPEED, ACCESSIBLITY, OPERATION, OR FUNCTIONALITY OF ANY ADVERTISING OR PROMOTION TO BE DISPLAYED ONLINE OR ON A MOBILE DEVICE.

LIMITATION OF LIABILITY. EXCEPT FOR EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS, AND FURTHER EXCEPTING CLIENT’S OBLIGATIONS WITH RESPECT TO ANY CANCELLATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA,OR USE, INCURRED BY EITHER PARTY, WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY, OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SERVICE PROVIDER’S MAXIMUM LIABILITY HEREUNDER EXCEED A SUM THAT IS EQUIVALENT TO THE FEES SERVICE PROVIDER RECEIVED FROM CLIENT IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY.

Indemnification and Client Warranties.

Client Warranties. Client warrants and represents that: (i) it has the right, power and authority to enter into and fully perform its obligations hereunder and to grant to Service Provider all rights granted herein; (ii) all Client Materials will be of high quality consistent with customary industry standards and will be Client’s own and original creation, except for matter in the public domain, or materials to which Client is fully authorized to use; (iii) Service Provider’s creation, development, preparation, production and use of the Client Materials will not infringe upon any trademark or trade name, violate the rights of privacy or publicity of, or constitute defamation or violate any copyright, or literary, artistic, intellectual, dramatic, or other intellectual property right of any person, firm or entity; and (v) the use of the Client Materials will not violate any applicable State, Federal or local law, rule or regulation.

Client Indemnification. Client shall indemnify and hold harmless Service Provider, and its affiliates, subsidiaries, and their respective directors, officers, principals, managers, partners, employees, and controlling persons and their affiliates (the “Indemnitees”) from and against any loss, penalties, fines, damages, liabilities, claims, suits, data privacy breach, data security breach, costs and expenses, of any kind whatsoever, incurred by the Indemnitees as a result of Client’s breach of the representations and warranties contained in this Agreement or otherwise incurred by the Indemnitees in connection with the Client Materials or the products or services offered by Client.

Service Provider Warranties. Service Provider warrants and represents that (i) assuming that Client has complied with all federal and state laws and regulations regarding electronic communications, including content and notice and, further assuming that Client has obtained the express written consent of individuals who will receive electronic communications concerning the advertisements and promotions to be provided by Service Provider hereunder on behalf of Client, Service Provider has the right, power and authority to enter into and fully perform its obligations hereunder; (ii) the Service Provider Material will be of high quality consistent with customary industry standards and will be Service Provider’s own and original creation, except for matter in the public domain, or materials to which Service Provider is fully authorized to use; and (iii) the creation, development, preparation, production and use of the Service Provider Material will not infringe upon any trademark or trade name, violate the right of privacy or publicity of, or constitute defamation against or violate any copyright, or literary, artistic, intellectual, dramatic or other intellectual property right of any person, firm or entity.

Service Provider Indemnification. Service Provider shall indemnify and hold harmless Client, and its affiliates, employees, directors and agents (“Client’s Indemnitees”) against any loss, penalties, fines, damages, claims, suits, costs or expenses (including reasonable attorney’s fees), incurred by Client’s Indemnitees as a result of Service Provider’ breach of the representations and warranties contained in Section 12.3.

Confidential Information. The Parties understand and acknowledge that each may have access to and may learn about confidential, secret, and proprietary documents, materials, data and other information, in tangible and intangible form, of and relating to businesses and existing and prospective customers, suppliers, investors and other associated third parties (“Confidential Information”). Neither Client nor Service Provider shall disclose to any person or entity, directly or indirectly, Confidential Information, except on a confidential or privileged basis to its business, legal and financial advisors, or as required to be disclosed under applicable law or legal process, or with the prior written approval of the other. Client and Service Provider shall, from receipt/disclosure of such Confidential Information, protect and safeguard the other party’s Confidential Information with at least the same degree of care as it would protect its own Confidential Information and not use the other 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 this Agreement and accompanying Statement of Work.

These restrictions shall not apply to the extent any such information (i) is developed independently without the use of any Confidential Information of the other party, as demonstrated by written records; (ii) is disclosed by the party to whom the information relates to a third party without obligation of protection; (iii) is or becomes publicly available through no fault of the recipient party hereunder, or (iv) is already known by the other party.

Notices. All notices, including notices of address changes, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by prepaid certified mail, return receipt requested, or sent via recognized overnight courier to the Parties at the addresses set forth below:

If to Service Provider:

Fullsteam Software Holdings LLC

954 E PAces Ferry RD NE Ste 1400, Atlanta, GA 30326

Conflicts and Interpretation. To the extent there is a conflict between the business terms of a Statement of Work and this Agreement the business terms of the Statement of Work shall control to the extent of the conflict and only to such Statement of Work. The legal terms of this Agreement shall take precedence over any legal terms in the Statement of Work. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

Force Majeure. Except for Client’s payment obligations hereunder, neither party shall be responsible for any cessation or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to: war, acts of terrorism, fire, accident, pandemic or epidemic, labor difficulty, strike, riot, civil commotion, hurricanes, floods, other acts of God, inability to obtain necessary other materials, electronic or electrical interference, telecommunications difficulties, system failure, technical failure, equipment breakdown, failure of any third party system or product, delay or errors in the United States mail or change in laws or regulations.

Assignment. Neither party may assign, delegate or transfer, by operation of law, merger, sale or otherwise, this Agreement or any of its rights or obligations hereunder, without the express written consent of the other party, except Service Provider reserves the right to assign this Agreement to any person or entity acquiring all or substantially all of its assets or stock.

Relationship of the Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between Service Provider and Client. Service Provider is an independent contractor pursuant to this Agreement.

Governing Law; Jurisdiction and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of Delaware without regard to conflicts-of-law principles. Any action or proceeding by either Party to enforce this Agreement shall be brought in Delaware. Nothing in this Agreement shall, however, prevent the parties from seeking emergency temporary injunctive relief in the state or federal courts for Delaware. The Parties hereby irrevocably submit to the jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT.

Amendment. Service Provider may amend this Agreement, including any applicable fees, at any time by providing thirty (30) days prior notice. Any Statements of Work attached to this Agreement are incorporated by reference and bound by the Terms and Conditions stated herein.

Entire Agreement. This Agreement and any Statement(s) of Work hereunder represents the entire agreement of the parties hereto and supersedes any and all other agreements, either oral or in writing, between the parties with respect to the subject matter of this Agreement.

Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.