MARKETING SERVICES AGREEMENT
Last Updated: October 30, 2025
This Marketing Services Agreement (“Agreement”) is by and between Fullsteam Software Holdings LLC dba Storage Commander (“Provider”) and the individual or entity identified in the Statement of Work (“Client”) (Provider and Client are referred to herein as a “Party” and collectively, the “Parties”). The ordering document specifying the Marketing Services to be provided to the Client entered into between the Provider and Client (“Statement of Work”) accompanying this Agreement, and any Statement of Work subsequently agreed to by the Parties in the manner specified herein, are deemed incorporated herein and the Parties are bound by the terms of this Agreement and each Statement of Work
1. Marketing Services. Provider shall provide the marketing products and services ordered by the Client, as described in the Statement of Work, under the terms and conditions of this Agreement (“Marketing Services”).
2. Taxes and Fees.
2.1. Taxes. Provider' fees for the Marketing Services are specified on the Statement of Work. 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 Provider in discharge of the foregoing taxes. This provision shall survive the termination of this Agreement.
2.2. Fees. Client will pay all fees set forth in the Statement of Work. All fees are non-cancelable and non-refundable, except as otherwise provided for herein. All fees are due and payable within fifteen (15) days of receipt of invoice. Failure to make timely invoice payment entitles Provider, at its option, to either withhold delivery of Marketing Services without liability or to assess a late charge on past due accounts at the maximum rate authorized or 1.5% per month, whichever is greater. Provider reserves the right to require satisfactory security or guaranty that an invoice will be promptly paid when due if at any time Provider determines in its reasonable discretion that Client’s financial status has become impaired or otherwise unsatisfactory to Provider.
3. Warranties.
3.1. 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 Provider all rights granted herein; (ii) all materials including, without limitation, inserts, coupons, graphics, advertising copy, ideas, concepts, and marketing plans, furnished by Client (“Client Material”) 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) the use of Client Materials by Provider to create, develop, prepare, produce, or distribute new creative advertising content on behalf of Client (“Provider Materials”) will not cause Provider to 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 right or violate or infringe upon any other rights of any nature of any person, firm, or entity; (iv) the creation, development, preparation, production and use of the Client Material 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; (v) the printing and use of the Client Material will not violate any applicable State, Federal or local law, rule or regulation; and (vi) Client is in compliance with applicable State and Federal laws, including, without limitation, data privacy and data security obligations, compliance with any legal requirements applicable to the content of its advertising and promotions used hereunder and Client Materials, and any consent and notice requirements required for lawfully sending advertisements and promotions hereunder to individuals designated by Client, 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. In the event Provider receives notice which contests Client’s right to display a name, trademark, service mark, copyright or other content, Provider may discontinue providing some or all Marketing Services, including, without limitation removing or discontinuing the content, without liability to Provider until such time that Client has resolved the dispute with the other Party to Provider’ satisfaction.
3.2. Provider Warranties. Provider warrants and represents that (i) assuming that Client has complied with all State and Federal 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 Provider hereunder on behalf of Client, Provider has the right, power and authority to enter into and fully perform its obligations hereunder; and (ii) the Provider Material will be of high quality consistent with customary industry standards and will be Provider’ own and original creation, except for matter in the public domain, or materials to which Provider is fully authorized to use.
4. WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY DESCRIBED HEREIN, PROVIDER MAKES NO WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO ANY MARKETING SERVICES OR PROVIDER 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. PROVIDER HEREBY DISCLAIMS ANY SUCH WARRANTY. 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.
5. LIMITATION OF LIABILITY.
5.1. EXCEPT FOR EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREIN, 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.
5.2. IN NO EVENT SHALL PROVIDER’S MAXIMUM LIABILITY HEREUNDER EXCEED A SUM THAT IS EQUIVALENT TO THE FEES PROVIDER RECEIVED FROM CLIENT FOR THE MARKETING SERVICES IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY.
6. Indemnification.
6.1. Client Indemnification. Client shall indemnify and hold harmless 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.
6.2. Provider Indemnification. 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 Provider’ gross negligence or willful misconduct.
7. Term and Termination.
7.1. Term. The term of this Agreement commences on the effective date of the first Statement of Work between the Parties (the “Effective Date”) and shall remain in effect so long as a valid Statement of Work remains in effect. During each Statement of Work term, the terms and conditions of this Agreement shall remain in full force and effect, except that the monthly billing rate shall increase annually by two percent (2%) each annum the Statement of Work remains in effect.
7.2. Termination for Breach. Either Party may terminate this Agreement immediately in the event the other Party is in breach under this Agreement and fails to cure such breach within thirty (30) days of receiving written notice from the other Party specifying the nature of such breach. Written notice of termination must be sent as specified herein.
7.3. Early Termination. If, for any reason other than an actual breach by Provider that has not been cured within the applicable cure period, this Agreement or any applicable Statement of Work is terminated prior to the end of the then-current term, Client must pay all fees set forth in the Statement of Work (ongoing monthly services fees, or such other fees as described therein) for the remainder of then-current term.
7.4. Effect of Termination. Upon termination or expiration of all outstanding Statement of Works, this Agreement shall terminate. Upon expiration of an applicable Statement of Work for any reason, Provider shall cease all Marketing Services immediately and Client shall pay Provider for all Marketing Services rendered up to the effective date of termination. Upon termination of this Agreement, each Party shall promptly return or destroy all Confidential Information of the other Party in its possession or control, except for one copy that may be retained in accordance with legal or regulatory requirements. Termination of this Agreement shall not affect any rights or obligations that, by their nature, should survive such termination, including, but not limited to, provisions related to payment, confidentiality, intellectual property, indemnification, and limitation of liability.
8. Right of Review. Provider reserves the unfettered right and discretion to review and approve or reject, in its sole discretion, any insert, sample, advertisement, online coupon, online advertisement, URL link embedded in an advertisement, online or otherwise, space reservation, position commitment, advertising copy, sweepstakes and contest offers, as well as non-category offers or materials to be mailed hereunder based on its determination as to whether such insert may adversely affect the goodwill or the reputation of Provider or any other participant in the mailing, or that such insert may violate any other agreement that Provider may have with a third party or violate laws or regulations. Neither Provider’ approval nor failure to exercise its right to review shall affect either (i) Client’s representations and warranties made herein, or (ii) any of Client’s obligations hereunder.
9. Ownership: Client Marks and Client Data.
9.1. Provider License. Client grants to Provider, and Provider accepts from Client, during the term of this Agreement, a royalty free, nonexclusive, nontransferable, license to use, reproduce, distribute and display Client’s tradenames, trademarks, service marks and logos, as such are identified in the Statement of Work (collectively the “Client Marks”) for the sole purpose of performing Provider’s obligations under this Agreement. Client further grants to Provider, and 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 Provider Materials. Except as specifically set forth herein, no right, title or interest in any of the Client Marks is intended to be given to or acquired by Provider. Client represents and warrants that it has the authority to grant the license contained in this Section.
9.2. Client Data. Client acknowledges and agrees that, in the course of providing the Marketing Services to Client, both Provider and Client will collect, store, and use data and information collected by Provider in the course of providing the Marketing Services and may include, without limitation: (i) customer contact information (such as name, phone number, email address, etc.); (ii) personal information about customers (such as age, race, gender, income level, and education level); (iii) information about customer transactions; (iv) information on how customers interact with the Marketing Services; (v) customer purchase history; and (vi) location information (“Client Data”) in accordance with all applicable state and federal laws and in accordance with Provider’s Privacy Policy, available on the Provider website. If Client wishes to use any Client Data for purposes other than as described in Provider’s Privacy Policy, Client shall be solely responsible for putting in place its own separate privacy policy governing use of Client Data.
9.3. Anonymized and Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Provider may capture data related to Client’s customers’ use of the Marketing Services and may aggregate, use, disclose, compile, distribute, and publish statistical or analytical data regarding such use of the Marketing Services. Provider may aggregate, use, disclose, compile, distribute, and publish statistical or analytical data regarding the performance, provision, and operation of the Marketing Services, on an anonymized, aggregated basis, and may make such information publicly available, provided that such information does not directly identify Client’s Confidential Information or such customers of Client. Provider retains all intellectual property rights in such anonymized, aggregated data.
10. Advertising Materials. Provider may, at its discretion, include the Provider Materials in 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.
11. Website License and Ownership
11.1. Website License. Subject to the terms of this Agreement, Provider hereby grants Client a non-exclusive, non-transferable, revocable license to access, use, and operate the website provided by Provider (“Licensed Website”) solely for the duration of this Agreement.
11.2. Reservation of Rights. Customer acknowledges and agrees that all rights, title, and interest in and to the Licensed Website, including but not limited to its design, content, code, and functionality, are and shall remain the exclusive property of Provider. Nothing in this Agreement shall be construed to grant Customer any ownership rights in the Licensed Website. Upon termination or expiration of this Agreement, all Licensed Website rights granted to Customer under this license shall immediately cease.
12. Client Represented by Agency.
12.1. If Client is represented under this Agreement by an Agency (as defined in this section), 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. Each and every obligation of Client pursuant to this Agreement may be satisfied by an advertising agency which as been duly appointed by Client to act on Client’s behalf (the “Agency”) and shall be deemed to be obligations of the Agency. Collectively, the Client and Agency will be referred to as “Client.” Each shall be jointly and severally liable for the obligations of the other under all terms of this Agreement and any Statement of Work.
12.2. Agency Obligations. 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 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 Provider, Agency will confirm whether Client has paid to Agency in advance funds sufficient to make payments pursuant to this Agreement.
12.3. Agency Liability. In the event of a breach of any Client obligation, Provider may pursue satisfaction from Client and Agency jointly, severally, or individually in its discretion. Provider assumes no responsibilities or obligations owed between Client and Agency.
13. Delays and Cancellations.
13.1. Delays. Any failure by Client to provide address lists, data files, or any other required program information to Provider in a timely manner may require that the scheduled Marketing Services be delayed or canceled and may result in additional charges to Client.
13.2. Cancellations. Cancellation by Client hereunder shall not relieve Client from its obligations herein for any fee and additional expenses owed to Provider.
14. Security. Each Party shall use reasonable administrative, technical and physical measures, as are consistent with applicable law concerning data security practices applicable to Client Data to help prevent unauthorized use, access, disclosure/theft, modification or distribution of Client 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 Client 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 (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.
15. Confidentiality.
15.1. 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 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 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.
15.2. Confidentiality Limitations. 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.
16. General Terms.
16.1. 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 Provider:
Fullsteam Software Holdings LLC dba Storage Commander
540 Devall Dr Suite 301, Auburn, AL 36832
Attn: Marketing Legal Department
If to Client:
Contact information on file with Provider
16.2. Interpretation of Agreement. 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.
16.3. 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.
16.4. 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 Provider reserves the right to assign this Agreement to any person or entity acquiring all or substantially all of its assets or stock.
16.5. Relationship. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between Provider and Client. Provider is an independent contractor pursuant to this Agreement. Neither Provider or Client has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party. Nothing in this section shall preclude a Client’s agency relationship as set forth in Section 10.
16.6. Governing Law, Jurisdiction, and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of Georgia without regard to conflicts-of-law principles. Any action or proceeding by either Party to enforce this Agreement shall be brought in an arbitration in Atlanta, Georgia. Nothing in this Agreement shall, however, prevent the Parties from seeking emergency temporary injunctive relief in the state or federal courts for Fulton County, Georgia. 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.
16.7. 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, and no other agreement, statement or promise relating to the subject matter of this Agreement not contained herein shall be valid or binding.
16.8. Amendment. Provider reserves the right to amend this Agreement or modify the Marketing Services by providing Client with at least thirty (30) days’ prior written notice of any such amendment or modification. Any amendments or modifications shall become effective at the end of the notice period unless Client objects in writing prior to the end of the notice period. If Client objects, the Parties shall negotiate in good faith to resolve the objections. If the Parties are unable to reach a resolution, Client may terminate the Agreement by providing written notice to Provider prior to the effective date of the amendment.
16.9. Control. 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.
16.10. This Agreement serves to confirm Client’s participation in the advertising programs described in the Statement of Work. Client agrees that it has not relied on any warranty or representation in executing this Agreement, other than those expressly set forth in this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party. THIS AGREEMENT SHALL NOT BE BINDING UPON EITHER PARTY UNTIL ITS ACCEPTANCE