1. Legal

This Master Services Agreement (MSA) is executed between the Client and Apex Hosting LLC(Apex). On April 11th, 2024, all contracts under this MSA will be assigned from MCProHosting LLC to Apex. If Client had previously entered this MSA with MCProHosting LLC, then this MSA shall govern the provision of the Services set forth herein to Client as of the date of the assignment.

This MSA is accompanied by the following addenda:

• Managed Services Addendum (MS)
• Service Level Agreement Addendum (SLA)
• Bare Metal Addendum (BMA)
• Acceptable Use Policy (AUP)

The MSA and these addenda govern services that Apex provides and define the terms of the basic MSA between Client and Apex. Apex offers many services, some of which require auxiliary agreements. These documents provide the fundamental terms for each respective service, and/or any additional services that Client would like Apex to provide. Some addenda may not be applicable to all Client engagements but are included for reference for future services. Client may locate these addenda at https://apexminecrafthosting.com/sla for review.

2. Acceptance

Client accepts this MSA by clicking or checking an acceptance option provided on our web site, electronically signing an order form or addendum, or installing and using any of the provided services or products. By accepting these services Client is agreeing that:

• Client accepts the MSA entirely as it relates to the services Client is requesting.
• Client agrees that Client is bound by the MSA.
• This MSA, the applicable addenda, and the SOW, RM and AUP are binding and enforceable obligations.

If Client does not agree with any of these statements, Client SHOULD NOT sign, click or check acceptance options, install, or use any services.

3. Fees, Billing, and Payment Terms

• Client agrees to pay all undisputed fees, costs, and charges as outlined in this MSA and the Client Service Order Form (SOF) for services provided to Client during the term of this MSA. Apex will provide Client with the services listed on the SOF and gives Client a license to use the Client services for permitted purposes.
• Additional services are available for a fee; these additions, if any, shall be recorded in a new SOF or a Change Order.
• Apex will bill Client monthly by sending Client an invoice. Payment for non- recurring charges are due, in full and in advance of the Commencement Date. Other monthly recurring charges and fees on the invoice must be paid within 30 (thirty) days of Client’s receipt of the invoice.
• Client must dispute an error to Apex, in writing, within 30 (thirty) days of the receipt of the invoice. Undisputed fees still must be paid on time.
• Apex only accepts US Dollars for payment. Payment may be made via check or money order mailed to our address (at the end of this document), or may be made by any electronic method made available in the control panel.
• Delinquent payments can harm Client credit with Apex, and Apex may require Client payment terms to be modified—possibly requiring a security deposit (initially or an increase to), automatic payments, or payments prior to provisioning.
• If a security deposit is required, Apex stores the funds in our general account. Apex does not pay interest on security deposits, and Apex only draws on the funds if Client becomes past due in an obligation to Apex. Client will need to replenish the security deposit promptly if Apex has to draw against it. Apex will refund the security deposit to Client within 60 (sixty) days of the termination of the MSA with each other as long as Client’s account is paid in full.
• Occasionally, a utility provider may change the amounts that they charge Apex for power delivery, resulting in an increased cost for power delivery that is passed on to Client. Apex will use commercially reasonable efforts to inform Client of the increase in utility charges.
• Apex may provide third party software solutions to Client. In the event a third- party software solution provider changes the amounts that they charge Apex, resulting in increased cost for such software, Apex will pass this increased cost on to Client.
• If Client orders something from Apex that requires a cost or expense to be incurred by Apex and Client pre-approved those expenses or those expenses are otherwise specified in this MSA, Client will be required to reimburse Apex for those expenses or costs. Apex will issue an invoice to Client in the subsequent billing cycle for any such reimbursement.
• If Apex or Client dispute any aspect of this MSA and litigation is initiated, the prevailing party will be entitled to reasonable attorney’s fees and costs incurred by it in connection with the legal process. Collection fees incurred by Apex are included in this provision.
• License fees may change from time to time and fee increases are effective after the end of each term on the (yearly) anniversary of the date Apex started billing Client as provided on the SOW.
• An Early Termination Fee (ETF) equal to seventy-five percent (75%) of the remaining contractual balance shall be assessed to Client in the event Client chooses early termination.
• Apex makes no guarantee of continued availability for any service or feature. In the event that Apex ceases offering a service or feature, Client will be notified by email or via www.apexminecrafthosting.com. Upon the termination of any service or feature for which Client has prepaid a fee, Apex will refund a pro-rated portion of the fee to the Client’s original payment method.

4. Term and Termination

• This entire MSA is effective for the duration of the initial term listed on Client SOF and any subsequent renewal terms.
• The Commencement Date listed on the SOF is the date that the initial term begins. If services are not delivered to Client, for any reason, by the Commencement Date, the date of delivery of services becomes the new Commencement Date.
• If Client orders multiple services contained on one SOF, those items may be delivered on different dates. In this instance the Commencement Date is the actual date of delivery of each specific item, which can result in multiple Commencement Dates on one SOF. Such changes may or may not result in adjustments to License Fees or other charges. Upon mutual agreement, cessation of services provided under varied commencement dates shall be coterminous.
• This MSA shall be in force for the initial term from the Commencement Date as provided in the Service Order Form (SOF) and any subsequent renewal term(s). Either party will have the right to terminate this MSA by giving at least thirty (30) days’ written notice to the other party to terminate the MSA at the end of the then current term.

5. Default Events and Remedies

• The following events by Client will cause a default:
  • Failure to pay undisputed fees or other amounts due under this MSA.
  • Client becomes insolvent, has a negative tangible net worth, admits in writing that Client is unable to pay Client’s debts when they are due, files a bankruptcy petition to take advantage of any insolvency statute, makes an assignment for the benefit of creditors, makes a fraudulent transfer, applies for or consents to the appointment of a receiver of itself or of the whole or any substantial part of its property, files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States or any individual state.
  • A court enters an order, judgement, or decree adjudicating Client as bankrupt or appointing a receiver of Client’s whole or a substantial part of Client’s property without Client’s consent, or approving a petition filed against Client seeking reorganization or arrangement of Client’s company under US or state bankruptcy laws, and that item is not vacated, set aside, or stayed within thirty (30) days of entry.
  • Client fails to perform any material obligation under this license within thirty (30) days of notification of nonperformance from Apex.
• The following remedies are available to Apex in the occurrence of a default (or at any time thereafter without further notice or demand). These remedies can be exercised concurrently, alternatively, or in succession:
  • Suspension of some or all of the services that Apex provides to Client.
  • Termination of this MSA.
  • Recover accrued and unpaid license fees and damages arising from Client’s breach of the license, as well as any applicable late charges and interest in the case of Clients’ failure to pay amounts due. The interest rate is eighteen percent (18%) per year or the highest rate allowed by law, whichever is less.
  • Recovering all reasonable attorneys’ fees and other expenses that Apex incurs while enforcing this MSA, recovering a possession, and collecting amounts owed when Apex is the prevailing party in any suit or proceeding.
  • Pursuing of any other remedies available by law or in equity.
• The following events by Apex will cause a default:
  • Breach of any material term or condition of this MSA. Client must notify Apex in writing of any breach and Apex has 30 days from receipt of notice to cure the breach.
  • Apex becomes insolvent, has a negative tangible net worth, admits in writing that Apex is unable to pay its debts when they are due, files a bankruptcy petition to take advantage of any insolvency statute, make assignment for the benefit of creditors, makes a fraudulent transfer, applies for or consent to the appointment of a receiver of itself or of the whole or any substantial part of its property, files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States or any individual state.
  • A court enters an order, judgement, or decree adjudicating Apex as bankrupt or appointing a receiver of Apex’s whole or a substantial part of Apex’s property Apex’s without consent, or approving a petition filed against Apex seeking reorganization or arrangement of Apex’s company under US or state bankruptcy laws, and that item is not vacated, set aside, or stayed within thirty (30) days of entry
• The following remedies are available to Client in the event of a default by Apex, provided that all amounts due in accordance with Client MSA are paid:
  • Return of any unused fees prepaid by Client and not used by Apex, including but not limited to, a pro-rata portion of the most recently paid License Fees, costs, and charges for the remaining days of the term month.
  • Recovering all reasonable attorneys’ fees and other expenses that Client incurs while enforcing this MSA when Client is the prevailing party in any suit or proceeding.
  • Recovering from Apex any and all reasonable direct damages a breach causes Client.
  • Pursuing of any other remedies available by law or in equity.
• Survival
  • Some of the rights and obligations of both Client and Apex will survive the expiration of this MSA, including, but not limited to, provisions related to security deposits, dispute resolution and costs, remedies, confidentiality, and other general provisions.

General Provisions

• Governing Law, Lawsuits
  This MSA is governed by the laws in the state of Wyoming, exclusive of any Wyoming choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The state or federal courts in Wyoming are the exclusive venue for any disputes arising from this MSA and neither party shall bring an action in any other venue. Client may not dispute personal jurisdiction or venue in these courts.
• Disclaimer of Warranties
  • CLIENT’S USE OF THE SERVICES IS AT CLIENT’S OWN DISCRETION AND RISK.
  • SERVICES ARE PROVIDED “AS-IS” WITH NO WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
  • APEX DOES NOT WARRANT THAT THE SERVICE WILL MEET CLIENT’S SPECIFIC BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES(S) WILL BE TIMELY, UNINTERRUPTED, WITHOUT RISK, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED TO STANDARDS OF CLIENT.
  • APEX DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS ABOUT THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
  • CLIENT ASSUMES TOTAL RESPONSIBILITY FOR CLIENT (AND CLIENT’S END-USERS’) USE OF THE SERVICES.
• Disclaimer of Consequential Damages
  EXCEPT AS REQUIRED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS MSA FOR LOSS OF PROFITS, LOSS OF DATA, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER A THEORY OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. IF EITHER PARTY IS FOUND TO BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGE OR LOSS ARISING UNDER THIS MSA OR IN CONNECTION WITH THE SERVICES, TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT FOR THE SERVICES FOR THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENTS GIVING RISE TO ITS LIABILITY.
• Maximum Liability
  In consideration of each party’s performance under this MSA and with exception to anything contrary in the addendums to this document and/or the SOF, SOW, or RM, Client agrees to the following:
  • Recourse against either party’s successors is limited to the maximum aggregated liability which cannot exceed the total amount actually paid by Client to Apex during the six (6) months immediately preceding the month in which the claim arises.
  • Except in cases if willful misconduct or gross negligence, Apex will have no liability at all for claims, losses, actions, damages, suits, or proceedings resulting from our efforts to address or mitigate the following: security breaches (including, but not limited to, eavesdropping), third party access to Client data or assigned computers, third party access or misuse of passwords provided to Apex, the interception of sent or received traffic, relicense or exposure for other reasons of personally identifiable information or private data (including that of Client’s own Clients and of other users), denial of service attacks, viruses, worms and other third party interference, loss of data or access to data, actions of third parties, including without limitation agents or contractors of Apex, actions of Apex employees outside of the scope of their employment, mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or other failures of performance.
• Allocation of Liability
  The Disclaimer of Warranties (Section B of the General Provisions), Disclaimer of Consequential Damages (Section C of the General Provisions), and Maximum Liability (Section D of the General Provisions) in this and other provisions of this MSA and the allocation of risk are essential elements of the bargain between the parties and without this, neither Apex nor Client would enter into the MSA. The pricing of the products and services reflects the allocation of risk and these limitations.
• Applicability
  Limitations in this MSA apply to any and all claims and causes of action regardless of whether in contract, tort, strict liability, or other theory.
• Basis of the Bargain; Failure of Essential Purpose
  Each party acknowledges that Apex has set its prices and each party enters into this MSA by relying on the limitations of liability and disclaimers of warranties and damages (Sections B-D of the General Provisions) listed in this MSA, making this an essential basis for the bargain between Client and Apex. Client and Apex both agree that the limitations and exclusions of liability and disclaimers of warranties and damages specified in this MSA will survive and apply even if they are found to have failed in their essential purpose.
• Indemnification
  • Client agrees to indemnify, defend, and hold harmless Apex and its parents, affiliates, licensors, and providers of third party services through Apex (as well as their directors, officers, employees, contractors, agents, successors, and assigns (collectively “the Apex Parties”) from and against any and all liability (including without limitation all attorneys’ fees and costs) incurred by the Parties in connection with actual or alleged claims arising from any of the following:
    • Client’s use or misuse of the services or third party services; including software.
    • Client’s breach of this MSA.
    • Client’s, or Client’s end-customers’, breach or alleged breach of the rights of any third party’s rights in connection with their use of the services under this MSA, including without limitation, actual or alleged infringement or misappropriation of a copyright, trade secret, patent, trademark, privacy, publication, or other proprietary right.
    • Violation or non-compliance by Client, or Client’s end customer, with any law, court order, rule, or regulation in any jurisdiction.
    • Any counsel Client selects for defense or settlement of a claim must be approved in writing, in advance, by Apex prior to the engagement of the counsel to represent the Apex Parties which approval shall not be unreasonably denied, delayed or conditioned.
    • Client may not consent to any judgement, settlement, attachment, lien, or other act adverse to the interests of Apex or the Apex Parties without the prior written consent of Apex or the applicable Apex Party. Client and Client’s counsel will cooperate as fully as Client is reasonably required to provide information reasonably requested by Apex or the Apex Parties in the defense or settlement of any related matter.
    • Assertion of transfer of employment relationship claims made against Apex under EU Directive 2001/23/EC or similar by one of Client’s employees or a contracted third party providing contractual services prior to the start date.
  • Apex agrees to indemnify, defend, and hold harmless Client and its affiliates and their respective directors, officers, employees, contractors, agents, successors, and assigns, and end customers (collectively “the Client Parties”) from and against any and all liability (including without limitation all attorneys’ fees and costs), incurred by the Client Parties in connection with third-party claims to the extent such claims arise from any violation or non-compliance by Apex, or any of Apex’s employees, agents, or contractors, with any law, court order, rule, or regulation in any jurisdiction; provided, however, that Apex shall not be required to provide any such indemnification or defense to the extent the same is prejudiced by any delay in Client’s notification to Apex.
  Apex may not consent to any judgement, settlement, attachment, lien, or other act adverse to the interests of Client or the Client Parties without the prior written consent of Client or the applicable Client Party. Apex and Apex’s counsel will cooperate as fully as Apex is reasonably required to provide information reasonably requested by Client or the Client Parties in the defense or settlement of any related matter.
• HIPAA Compliance
  Client is responsible for informing Apex in writing if (i) Client is a Covered Entity or Business Associate (both as defined in the Health Insurance Portability Act of 1996 (“HIPAA”)). Client Data includes Protected Health Information (“PHI”) as defined in HIPAA. If Client notifies Apex that it is a Covered Entity or Business Associate and that Client Data includes PHI, and Apex determines that, based on such notification, it is considered a Business Associate, then the parties will execute Apex’s Business Associate MSA. If Client does not so notify Apex, Apex will have no obligation to provide the contracted services in compliance with HIPAA.
• DMCA
  Apex is an ISP (Internet Service Provider) under the DMCA (Digital Millennium Copyright Act). Clients are expected to comply with the DMCA. Apex follows the notification and takedown procedures set forth in the U.S.C 17 Section 512 DMCA and may block access to, or terminate any or all services provided under this MSA for repeat infringers.
• Privacy Compliance
  Apex needs to gather and use certain information about individuals. This information can include customers, suppliers, business contacts, employees and other people the organization has a relationship with or may need to contact. Apex’s General Data Protection Regulation (GDPR) – Compliant Data protection Policy describes how this personal data must be collected, handled and stored to meet the company’s data protection standards – and to comply with the law. Client may view Apex’s GDPR Policy together with Apex’s Privacy Policy at https://apexminecrafthosting.com/privacy-policy.
  
  The parties agree that Client is solely responsible for obtaining all required consents, and providing all required notices, to Client’s customers, users, and other third parties whose data Apex processes on behalf of Client to facilitate Apex’s processing of personal data in accordance with applicable law and the Apex Privacy Policy. Further, Client shall be responsible for facilitating all data subject rights requests under applicable law. Client shall
  
  In the event of an assignment of this MSA, Client agrees, on its own behalf and on behalf of its customers, users, and other third parties whose data Apex processes on behalf of Client, that Apex may transfer all relevant data and personal information to the assignee of this MSA. Client warrants that it has the right to make the foregoing representations.
  • You can contact Apex at any time to:
    • Request access to information that Apex has about you.
    • Correct any information that Apex has about you.
    • Delete information that Apex has about you.
    If you have any additional questions about Apex’s collection and storage of data, please contact us at: [email protected]
• SLA Credits
  Any credits issued to Client’s account in accordance with the SLA may only be used as a credit toward future charges for services and may not be sold, converted to cash, or transferred. SLA credits expire on the termination or expiration of the MSA.
• Taxes
  • Prices and fees referred to in this MSA are not inclusive of any tax, withholding, sales, use, value added, levies, import, custom duties, excise, or other tax equivalent required as a result of the supply of services. All taxes will be paid by Client.
  • Client is not liable for Apex’s income taxes, and Apex is not liable for Client’s income taxes.
  • Apex is required to collect applicable taxes on behalf of Client unless Client provides Apex with a valid tax exemption certificate from the appropriate authority.
  • If withholding tax applies to any payments for services made in this MSA, Client may pay those taxes to the appropriate tax authority and provide Apex with the official tax receipt, and notify Apex that withholding tax is required, and Client will ensure that Apex receives the full amount of the invoice.
  • Client agrees that Client and Apex will cooperate as much as possible to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties, if applicable, to the relevant tax authority to reduce the rate or tax or exempt the amount if applicable.
  • Client will account for any tax withheld to the tax authorities on a timely basis.
• Confidential Information; Non-Solicitation
  • Each party acknowledges that it will have access to certain confidential information and materials of the other party (“Confidential Information”). Confidential Information will include, but is not limited to, information regarding each party’s business, plans, technology, products, proprietary software, and customer information. Apex specifically designates as Confidential Information its internal documentation, prices, rates, quotations, and other financial information relating to this MSA. Client specifically designates as its Confidential Information all data and content stored or transmitted by Client, or accessed by Apex, in connection with its use of Apex’s services under this MSA. Both Client and Apex must keep all Confidential Information confidential and only share Confidential Information where this MSA allows or when required to do so by law. Both parties will make every reasonable effort to keep this Confidential Information confidential and will on request return all Confidential Information to the other party within thirty (30) days of the expiration or termination of this MSA. Neither party may keep any copies of Confidential Information except as where required by law or for administrative record keeping.
  • Information will not be deemed Confidential Information hereunder if the receiving party can establish by reasonably competent evidence that such information was: a) known to the receiving party before it was disclosed by the disclosing party, b) becomes known by disclosure from a direct or indirect source who does not have an obligation of confidentiality to the disclosing party, c) becomes publicly known or ceases to be confidential (not by breach of this MSA by the receiving party), of it is independently developed without the use of Confidential Information from the disclosing party.
  • The obligations and restrictions set forth herein regarding Confidential Information shall survive during the term of this MSA and for three (3) years after its termination or expiration.
  • Neither Client nor Apex may hire, offer work to, or contract employees or contractors of the other party that become known to them through this relationship have worked directly with the party in connection with the provision of services under this MSA. This remains in effect during the entire term of Client MSA.
  • This remedy does not waive the right to seek any other remedies or injunctive relief permitted by this MSA.
• Force Majeure
  Neither Client nor Apex is liable for failure or delay in performance under this MSA due to causes beyond their reasonable control, including without limitation acts of war or terrorism, acts of god, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, epidemic or pandemic, governmental acts, or failure of the Internet. The affected party should promptly notify the other party in writing and use its best effort to correct any failure or delay under this provision.
• Changes to this MSA
  This MSA is subject to updates and modifications. Updates are always posted at https://mcprohosting.com/msa and Client’s continued use of the services serves as Client’s acceptance of the updates and updates are in effect as soon as they are posted. Modifications of any terms must be approved in writing by Apex. Modifications to Apex’s policies regarding Acceptable Use, Privacy, and Security may be updated, with all updates being effective upon written notice to Client and posting in location available to Client.
• Use of Trade Names
  • Neither Client nor Apex will use the trade name, trademark, logos, or symbols of the other without prior written consent of the other party’s authorized representative.
  • Apex may disclose Client’s name to its employees, vendors, contractors, and service providers that have a reasonable need to know for purposes of providing services under this MSA.
  • Unless otherwise prohibited, Apex may use Client name in a list of Client references or other similar marketing materials.
• Information Security
  • Client represents and warrants that its collection, access, use, storage, disposal, and disclosure of its end-Customer Personal Information does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives.
  • If, in the course of its engagement with its end Customer, Client (a Service Provider) has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit or other payment cardholder information, Client shall at all times remain in compliance with 12.9 of the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Client’s sole cost and expense.
• Export Matters
  • Client may not transfer or authorize the transfer of any services to a U.S. or U.N. embargoed country, anyone on the U.S. Treasury Department list of Specially Designated Nationals, U.S. Commerce Department’s Table of Denial Orders or Entity List of proliferation concern, or on the U.S. State Department’s Debarred Parties list.
  • Client may not be located in, under the control of, or a national resident of any country on any of the lists mentioned in Section S(a) of these General Provisions.
  • Client may not use Apex’s services for development, design, manufacture, production, stockpiling, or use of nuclear, chemical, or biological weapons, weapons of mass destruction in any country mentioned in Country Groups D: 4 and D: 3 in Supplement No. 1 to the Part 740 of the U.S. Export Administration Regulations.
  • Client may not transfer through Apex services any data, materials, or other items controlled for export under the International Traffic in Arms Regulations (ITAR Data) or other applicable laws without Apex’s consent to the transfer, ten (10) business days’ prior written notice of the ITAR Data transfer, and all necessary assistance necessary to help us obtain U.S. Government permission.
  • Client is responsible for, and will reimburse Apex for, all costs, expenses, or damages incurred in connection with Client transfer of ITAR Data without Apex’s agreement.
• Legal Process
  • Apex reserves the right to comply with any and all warrants, court orders, subpoenas, summons, and other legal requirements.
  • Client authorizes Apex to consent to any access, search, seizure, or other governmental action that is valid by our reasonable opinion.
  • Apex shall use its best reasonable efforts to notify Client of any legal process within forty eight (48) hours of service. Failure of this notification will not restrict our rights under this Section T and does not constitute as a breach.
  • Apex reserves the right to restrict or terminate access by Client or any representative to the facility from and after the service of a search or seizure warrant and/or after receiving an order of a court or government agency.
• Integration, Modifications, and Severability
  • This MSA and its attachments and addenda are the entire MSA and supersede any prior MSAs, promises, representations, understandings, and negotiations between the parties
  • Any modifications, amendments, supplements, or waivers of this MSA must be in writing and executed by authorized representatives of both Client and Apex.
  • If any provision in this MSA is declared invalid the remaining provisions of the MSA will remain in full force and effect. Client and Apex will renegotiate the invalid provision in good faith and be bound by the mutually agreed-upon replacement provision.
• No Waiver
  • Either party’s failure or delay in exercising any of its rights under this MSA does not create a waiver of or modification to those rights.
  • Either party’s waiver of any right under this MSA must be in writing.
• Assignment
  • By Client:
    Client will not assign Client’s rights or delegate Client’s duties under this MSA (in whole or in part) without the prior written consent of Apex, such consent not to be unreasonably withheld This includes the following:
    • Partnerships and LLCs: By operation of law, voluntarily, or involuntarily withdrawing or changing a majority of partners or members or a transfer of a majority of ownership interests, aggregate or cumulative, or the dissolution of the partnership or LLC.
    • Private Corporation: Dissolution, merger, consolidation, or other reorganization, sale or other transfer of more than a cumulative aggregate of 50% of the voting shares of Client’s net assets (other than to immediate family members by gift or death), or sale, mortgage, hypothecation, or pledge of more than a cumulative aggregate of 50% of Client net assets.
  • By Apex:
    • Apex may assign its rights and obligations of this MSA to one or more service providers, affiliates, or other third parties for the provision of related services and will notify Client of any arrangement with a service provider and provide their contact information.
    • Apex may transfer all or any portion of its interest in the facility or other assets relating to the services set forth herein. In such an event the new owner (transferee) will assume the role and obligations of Apex after the date of transfer and Apex is automatically released from all liability accrued after the transfer date. Any attempts to assign or delegate in violation of this provision are null and void. This MSA binds and inures to the benefit of each party’s successors and assigns.
• Notices
  Electronic notification may be sent to
  
  [email protected]
  
  Delivery date is notification date.
• Estoppels
  When necessary, Apex shall request that Client execute, acknowledge, and deliver a statement in writing that may be relied upon by a prospective mortgagee, purchaser, or other similar encumbrance certifying all matters reasonably requested, and Client will comply with such request. Apex and the addressee of the certificate are entitled to rely on the information contained in the certificate that Apex submitted to Client as true, correct, and complete and Client may not later deny, contradict, or take any position inconsistent with the information in the certificate.
• Counterparts
  The MSA may be executed in two or more counterparts and each will be considered an original, but together constitute the same instrument.
• Relationship of Parties
  MSA and Client are independent contractors, and this MSA does not establish a relationship or partnership, joint venture, employment, franchise, or other agency between Client and Apex. Neither Client nor Apex has the power to bind the other or incur obligations on the other’s behalf without the written consent of the other unless that power is specified in this MSA.
• Language
  Apex’s official language is English and it does not provide translations into any other language of any services, support, notices, designations, specifications, or communications. All references to days throughout this MSA shall mean calendar days unless specified otherwise.
• No Negative Construction
  Both Client and Apex agree that it has reviewed and had the opportunity to have legal counsel review this MSA and its attachments and addendums and that this MSA is intended not to be construed against either party as the drafting party.
• Representation of Authority
  Any individual signing this MSA on behalf of an entity represents and warrants that he or she has full authority to do so. The signatories to this MSA respectively warrant that they are fully authorized to enter into this MSA on behalf of their respective entity or individual; that entities which are corporations, partnerships or limited liability companies are duly organized, validly existing and in good standing; and that the making, execution and performance of this MSA have been duly approved by the entities governing bodies and do not violate any provision of the entity’s respective articles of incorporation, charters, by-laws, or partnership agreements.
• Priority
  Conflicts or discrepancies between any portions of this MSA are governed by the following order of precedence:
  • Order of Service Order Form
  • Statement of Work (SOW)
  • Responsibility Matrix (RM)
  • This MSA and the Addenda listed in Section 1, Legal