Master Services Agreement

SUBSCRIPTION AGREEMENT

This Subscription Agreement (“Agreement”) is between ARC Document Solutions, LLC, a Texas limited liability company (“ARC”), with its principal place of business at 12657 Alcosta Blvd., Suite 200, San Ramon, CA 94583, and the organization agreeing to these terms (“Client”).

ARC provides a cloud-based software platform (“SKYSITE”) that provide quick and easy access to digital business documents. This Agreement governs Client’s access to and use of SKYSITE.

• CERTAIN DEFINITIONS

  • “Affiliate” means any legal entity directly or indirectly controlling, controlled by or under common control with a Party, where control means the ownership of a majority share of the stock, equity or voting interests of such entity. A Client Affiliate may procure services under this Agreement for its own account pursuant to an Order Form executed by such Client Affiliate. A Client Affiliate who signs an Order Form will be deemed to be the Client here under and solely responsible for its performance or non-performance here under.
  • “AUP” means ARC’s acceptable use policy, posted at https://www.skysite.com/terms-of-use/.
  • “Client Data” means all data and information, including, without limitation, any physical and electronic documents, graphics or images that are created, installed, uploaded, provided or transferred by Client or Client’s Users in connection with access to and use of the SKYSITE Platform.
  • “License Subscription” means the right to access and use the SKYSITE Platform as described in Exhibit A and as set forth in an Order Form.
  • “Order Form” means the ordering document related to SKYSITE signed from time to time during the Term.
  • “Other One-Time Services” means such optional one-time custom services provided by ARC to Client as set forth in an Order Form.
  • “Quick Start Program” means the one-time services provided by ARC to Client as set forth in an Order Form.
  • “Services Subscription” means the optional ongoing services provided by ARC to Client as set forth in an Order Form.
  • “SLA” means ARC’s standard service level agreement, currently posted at https://www.skysite.com/sla.
  • “Users” means users of Client’s License Subscription account, including Client’s, and Client’s Affiliate’s, employees, consultants, contractors and agents.

• SKYSITE PLATFORM

  • Use. During the Term, Client and its Users may access and use the SKYSITE Platform pursuant to the terms of this Agreement and any applicable Order Form. Access to the SKYSITE Platform is granted to individual Users and cannot be shared with or used by third parties who are not authorized Users under this Agreement.
  • Modifications; Updates. ARC may modify and update the SKYSITE Platform, the Optional Services (as defined below), SLA and AUP from time to time. If ARC modifies the SKYSITE Platform in a manner that materially reduces their functionality, ARC will notify Client at the email address associated with Client’s account, and Client may provide notice within thirty days of the modification to terminate this Agreement.
  • Software.
    • The License Subscription allows Client and Users to download software used in connection with the SKYSITE Platform. If any component of that software is offered under an open source license, ARC will make the license available to Client and to the extent that the provisions of that license grant Client additional rights, those provisions may override some of the terms of this Agreement with respect to that component of the software.
    • ARC grants to Client during the Term a limited non-exclusive license to use the software solely in connection with the License Subscription and in accordance with this Agreement. This license is non-transferable, non-sublicensable and will be fully paid up upon Client’s payment of fees owed under this Agreement.
  • Trial Use. Client may access and use the SKYSITE Platform on a trial basis during the applicable trial period subject to the terms of this Agreement. ANY ACCESS AND USE FOR TRIAL PURPOSES IS PROVIDED “AS IS” AND ARC PROVIDES NO SLA OR WARRANTIES FOR THE TRIAL. ANY CLIENT DATA PROVIDED DURING THE TRIAL WILL NOT BE STORED OR AVAILABLE AFTER THE TRIAL.

• SUPPORT; SLA

  • Support. ARC will provide support to Users via email at Support@skysite.com and via phone at 1-844-759-7483. Support is included in the License Subscription at no additional charge.
  • SLA. ARC will provide the service levels described in the SLA. The remedies listed in the SLA are Client’s sole remedy for any failure of the SKYSITE Platform. Credits issued pursuant to the SLA apply to outstanding or future invoices only and will be forfeited upon termination of the Agreement. ARC is not required to issue refunds or make payments against such credits.

• OPTIONAL SERVICES

  • Optional Services. ARC will provide the Services Subscription and/or Other One-Time Services (the “Optional Services”), if any, as specified in an Order Form, and Client will provide assistance necessary to enable delivery of the Optional Services.

• CLIENT RESPONSIBILITIES

  • Acceptable Use. Client will comply with the AUP. In addition, Client will not: (a) use the SKYSITE Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the SKYSITE Platform, except Client’s Users; (b) provide passwords or other log-in information to any third party, except Client’s Users; (c) share non-public features or content of the SKYSITE Platform with any third party; or (d) access the SKYSITE Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the SKYSITE Platform, or to copy any ideas, features, functions or graphics of the SKYSITE Platform. In the event that it suspects any breach of the requirements of this Section 5.1, ARC may suspend Client’s access to the SKYSITE Platform without advance notice, in addition to such other available remedies.
  • Unauthorized Access. Client will take reasonable steps to prevent unauthorized access to the SKYSITE Platform, including protecting its Users’ passwords and other sign-in information. Client will notify ARC immediately of any known or suspected unauthorized use of the SKYSITE Platform.
  • Compliance with Laws. In its use of the SKYSITE Platform, Client will comply with all applicable laws, including laws governing the protection of personally identifiable information and other laws applicable to the protection of Client Data.
  • Use and Access. Client is responsible and liable for: (a) its Users’ use of the SKYSITE Platform, including unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Client; and (b) any use of the SKYSITE Platform through Client’s account, whether authorized or unauthorized.

• FEES; PAYMENT; TAXES

  • Fees. Client will pay all fees specified in each Order Form in U.S. Dollars. Except as otherwise provided in this Agreement, fees are non-cancellable and non-refundable.
  • Invoicing & Payment. Fees for the License Subscription, Quick Start Program and any Optional Services are due within 30 days of the invoice date without deduction of any kind. Any late payments will be subject to a service charge equal to 2% per month of the amount due or the maximum amount allowed by law, whichever is less.
  • Taxes. The amounts payable under this Agreement are exclusive of any sales, use, excise, value added, import, business, service, goods and services, consumption, withholding or other applicable taxes, tariffs or duties (“Taxes”). Client is solely responsible for payment of all Taxes except for any taxes based solely on ARC’s net income.

• TERM & TERMINATION

  • Term. The term of this Agreement will commence on the Effective Date and continue for a period of five (5) years (“Term”). This Agreement will automatically renew for successive one (1) year periods (each a “Renewal Period”) unless either party gives the other party written notice at least ninety (90) days prior to the end of the then-current term.
  • Termination. Either party may terminate this Agreement for cause upon thirty (30) days written notice (10 days in the event of non-payment) to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such notice period. If ARC terminates this Agreement due to Client’s material breach of this Agreement, ARC is not obligated to issue a refund or credit for any unused portion of the fees paid for License Subscription, Quick Start Program and Optional Services. Upon termination by Client for uncured breach by ARC, ARC will refund Client any prepaid unused fees after the effective date of termination.
  • Outstanding Fees. Termination, for any reason, will not relieve Client of the obligation to pay fees for the License Subscription, Quick Start Program and Optional Services completed by ARC prior to the effective date of the termination in accordance with the applicable Order Form.
  • Effect of Termination. Client may download Client Data that is in electronic format prior to the effective date of termination of this Agreement. ARC will provide to Client a digital copy of Client Data that is in electronic format promptly following ARC’s receipt of Client’s written request for Client data that is in electronic format, which written request must be received by ARC prior to the effective date of termination of this Agreement. If this Agreement is terminated for Client’s material breach, the full balance of any unpaid fees will immediately become due and payable, together with any arrears unpaid at the time of default. Promptly following termination of this Agreement, ARC will, unless legally prohibited, remove and permanently delete all Client Data (and any backups thereof) in its systems or otherwise in its possession or under its control. ARC will not be liable for any loss or damage incurred by Client, its Users or any third party as a result of ARC’s deletion of Client Data upon termination of this Agreement.
  • Surviving Provisions. Sections 5, 6, 8, 9, 11.2, 12 and 13 will survive any termination or expiration of this Agreement.

• INTELLECTUAL PROPERTY RIGHTS

  • Reservation of Rights. ARC retains all right, title, and interest in and to the SKYSITE Platform, including all related proprietary software and underlying infrastructure and all graphics, user interfaces, logos, and trademarks reproduced and through the SKYSITE Platform. This Agreement does not grant Client any intellectual property license or rights in or to the SKYSITE Platform or any of components, except to the limited extent that this Agreement specifically sets forth Client’s Users right to use and access the SKYSITE Platform.
  • Suggestions. ARC may use, modify and incorporate into its products and services, license and sub-license any feedback, comments or suggestions related to the SKYSITE Platform, Quick Start Program and Optional Services that Client or Users may provide to ARC without any obligation to Client.
  • Client Data.
    • Client retains all right, title and interest in and to Client Data. Client grants ARC and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, irrevocable, sub-licensable and transferable license to host, cache, copy, and display Client Data in any form, medium, or technology now known or later developed during the Term and any Renewal Period for the purpose of providing products and services under this Agreement. Client will not provide, upload or transmit any personally identifiable or sensitive information to the ARC Platform and agrees that ARC will have no liability for Client’s failure to comply with this requirement.
    • Client represents and warrants that (i) Client owns or has sufficient legal right to the intellectual property rights in the Client Data, (ii) Client has and will keep in effect during the Term, all such licenses, approvals, consents and permissions necessary to provide the Client Data to ARC at no charge to ARC and (iii) the Client Data does not violate applicable law or the rights of any third party. Client will indemnify, defend (with counsel reasonably acceptable to ARC) and hold ARC harmless from any reasonable costs and other amounts that ARC may incur from Client’s failure to comply with this Section.
    • Promptly following termination of this Agreement, ARC will, unless legally prohibited, remove and permanently delete all Client Data, and Client will indemnify, defend (with counsel reasonably acceptable to ARC) and hold ARC harmless from any claim or liability arising from such removal and deletion.
    • ARC will not be responsible or liable for the accuracy of Client Data. Client is solely responsible for retaining adequate back-ups of Client Data and assumes all risk related to the transmission of Client Data to the SKYSITE Platform. Client agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the SKYSITE Platform, Client assumes such risks. ARC provides no representation, warranty or guarantee that Client Data will not be exposed or disclosed through errors or the actions of third parties.
    • Unless it receives Client’s prior written consent, ARC will not access, process, or otherwise use Client Data other than as necessary to provide the SKYSITE Platform, Quick Start Program and Optional Services; provided, however, that ARC may compile aggregated statistics that may include Client Data and data of other clients for internal or statistical use, provided that such use will not include any information that would identify Client or its Users or that would result in a breach of ARC’s obligations under Section 10.

• CONFIDENTIALITY

  • During the Term, ARC and Client may have access to confidential or proprietary information of the other party (“Confidential Information”). Both parties agree to use the Confidential Information only as necessary to fulfill their respective obligations under this Agreement and agree to hold such Confidential Information in confidence, except such disclosure as may be required by law. Each party agrees that it will treat the other party’s Confidential Information with the same degree of care as it treats its own Confidential Information. Each party’s Confidential Information will remain the property of that party.

• PUBLICITY

  • If ARC creates any audio, video or printed marketing material (collectively the “Materials”) in connection with the Services, Client agrees that ARC may use and display the Materials solely for marketing and promotional purposes without liability for infringement of copyright or other proprietary rights. Client grants to ARC and its agents a limited, worldwide, non-exclusive, fully paid-up and royalty-free, perpetual, and irrevocable license to use, reproduce, publicly perform, and display the Materials.

• LIMITED WARRANTY & DISCLAIMER

  • Limited Warranty. In regard to the Quick Start Program and Optional Services only, ARC warrants that such services will be performed in a professional and workmanlike manner in accordance with the applicable Order Form. This limited warranty for the Quick Start Program and Optional Services will survive for a period of ninety (90) days following completion of the Quick Start Program or Optional Services. This limited warranty does not cover issues or failure resulting from abuse, misuse, alteration, acts of nature or natural disaster or use of the SKYSITE Platform or the software used in connection therewith or any hardware. Client’s sole remedy for breach of this limited warranty will be will be, in ARC’s sole discretion and at no charge to Client, (a) to use commercially reasonable efforts to provide Client with an error correction or work-around that corrects the reported non-conformity or, if ARC determines such remedy to be impracticable, (b) to allow Client to terminate and receive as its sole remedy any prepaid fees for the Quick Start Program or Optional Services for the remainder of the Term or the then current Renewal Period after the effective date of termination.
  • DISCLAIMER. CLIENT ACCEPTS THE SKYSITE PLATFORM “AS IS” AND AS AVAILABLE. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ARC MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ARC DOES NOT GUARANTEE THAT USE OF THE SKYSITE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS OR THAT CLIENT DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

• LIMITATION OF LIABILITY

  • Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, ARC’S MAXIMUM LIABILITY UNDER THIS AGREEMENT (INCLUDING ANY ORDER FORMS) WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO ARC PURSUANT TO THIS AGREEMENT (INCLUDING ANY ORDER FORMS) IN THE PRECEDING SIX (6) MONTH PERIOD. NOTWITHSTANDING THE FOREGOING, THIS SECTION 13 WILL NOT APPLY WITH RESPECT TO (A) DAMAGES FOR BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY (B) CLIENT’S BREACH OF SECTION 5 OR SECTION 8.3.2, OR (C) A PARTY’S BREACH OF SECTION 9.

• GENERAL PROVISIONS

  • Modification. ARC may revise this Agreement from time to time and the most current version will be available at https://www.e-arc.com/contracts/msa/. If a revision, in ARC’s sole discretion, is material, ARC will notify Client (by, for example, sending an email to the email address associated with the applicable account). Client is responsible for checking the most current version of this Agreement regularly. By continuing to access or use the SKYSITE Platform after revisions to this Agreement are made available, Client agrees to be bound by the revised Agreement.
  • Entire Agreement. This Agreement, including any Order Form, constitutes the entire agreement between Client and ARC with respect to the subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. In the event of a conflict among documents the following order of precedence will apply: the Order Form, this Agreement. Any terms and conditions on a Client purchase order will not apply to this Agreement and are null and void.
  • Governing Law. THE AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
  • Attorneys’ Fees and Costs; Waiver of Jury. The prevailing party in any action to enforce or interpret this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. To the maximum extent permissible, the parties hereby waive their rights to a trial by jury and acknowledge that such waiver is part of the consideration supporting this Agreement, without which, the parties would not have entered into this Agreement.
  • Notice. Notices must be sent via first class post or overnight courier and are deemed given when received. Notices to Client may also be sent to the applicable account email address and are deemed given when sent. Notices to ARC must be sent to ARC Document Solutions, LLC, 12657 Alcosta Blvd., Suite 200, San Ramon, CA 94583, with a copy to ARC Legal Department.
  • Waiver. A waiver of any default is not a waiver of any subsequent default.
  • Subcontracting; Assignment. ARC may subcontract the provision of the Quick Start Program and Optional Services, or any part thereof, including technical support, to subcontractors selected by ARC. Client may not assign this Agreement or any rights or obligations under this Agreement without the written consent of ARC. ARC may not assign this Agreement without providing notice to Client, except ARC may assign this Agreement or any rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
  • No Agency. ARC and Client are not legal partners or agents, but are independent contractors.
  • Force Majeure. Except for payment obligations, neither ARC nor Client will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action and Internet disturbance).
  • No Third-party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, Users are not third-party beneficiaries to Client’s rights under this Agreement.
  • Authority. Each individual executing this Agreement on behalf of a party represents and warrants that he or she has the authority to do so and has the power to bind the party on whose behalf he or she is signing.
  • Export Restrictions. The export and re-export of Client Data via the SKYSITE Platform may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The SKYSITE Platform may not be used in Cuba, Iran, North Korea, Sudan or Syria, or any country that is subject to an embargo by the United States and Client must not use the SKYSITE Platform in violation of any export restriction or embargo by the United States or any other applicable jurisdiction.

EXHIBIT A

SKYSITE Platform and Optional Services

SKYSITE is comprised of a cloud-based software platform (“Platform”).

The Platform

The Platform uses proprietary technology to read the contents of documents, making information searchable with quick and easy access on mobile and desktop devices.

• SKYSITE has ongoing development and release of new functionality. Generally, new functionality is included within the Platform at no extra charge. From time to time, ARC may release significant new features and functionality that constitute a different module. In this case, and only if ARC charges other clients separately for this new functionality, then such new functionality would not be included in the Services.
• ARC will maintain service levels as set forth at https://www.skysite.com/sla.

Optional Services

Other One-Time Services — Additional services required by Client, as specified in the Order Form.