1. SERVICES AND SUPPORT
1.1 EdgeAQ, LLC d/b/a Edgenet (“Edgenet”) is engaged in the business of providing processes and services in the areas of information technology and data services and providing licenses to its intellectual property in order to allow Customer to utilize Edgenet’s processes and services. Customer desires Edgenet to furnish certain technology and data services to Customer pursuant to this Agreement and to license certain intellectual property owned by Edgenet in order to allow Customer to utilize such technology and data services.
1.2 Subject to the terms of this Agreement, Edgenet will use commercially reasonable efforts to provide Customer the Services (as set forth in the Sales Order or Statement of Work, “SOW”). If applicable, as part of the registration process, Customer will identify an administrative user name and password for Customer’s Edgenet account. Edgenet reserves the right to refuse registration or cancel passwords of users it deems inappropriate. Subject to the terms hereof, Edgenet will provide Customer with reasonable technical support services in accordance with Edgenet’s standard practice, or as explicitly stated in the Services, if applicable.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Edgenet or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Edgenet hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Edgenet’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Edgenet against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Edgenet has no obligation to monitor Customer’s use of the Services, Edgenet may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Edgenet includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Edgenet to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Edgenet shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Edgenet, its affiliates and agents as are necessary or useful to perform the Services; and (b) to Edgenet as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
3.4 Notwithstanding anything to the contrary, Edgenet shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Edgenet will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Edgenet offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Edgenet the then applicable fees described in the Sales Order or SOW for the Services and/or Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Sales Order or SOW or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Edgenet reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Edgenet has billed Customer incorrectly, Customer must contact Edgenet no later than 30 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Edgenet’s customer support department.
4.2 Unless otherwise expressly set forth in the Sales Order or SOW, all fees and payments under this Agreement will be billed as of the Service Start Date and are non-refundable. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Edgenet’s net income. Failure of Customer to pay applicable Fees may result in interruption of Services without prior notice.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is effective as of the Effective Date with the Service Term as specified in the Sales Order or SOW, and, unless otherwise explicitly stated, shall be automatically renewed for additional periods of the same duration as the Service Term (collectively, the “Term”), unless either party requests termination via written notice at least thirty (30) days prior to the end of the then-current Term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5.3 Upon termination of this Agreement all rights granted to Customer hereunder and all obligations of Edgenet to provide Services will immediately terminate and Customer shall cease all use of Edgenet Services and Software.
6. WARRANTY AND DISCLAIMER
Edgenet shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Edgenet or by third-party providers, or because of other causes beyond Edgenet’s reasonable control, but Edgenet shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, EDGENET DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND EDGENET DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, EDGENET AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EDGENET’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO EDGENET FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT EDGENET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Edgenet’s prior written consent. Edgenet may transfer and assign any of its rights and obligations under this Agreement without consent.
8.2 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Notwithstanding anything to the contrary herein, in the event that Edgenet and Customer may have more than one Sales Order or SOW in place at any given time, previous Agreements applicable to such Sales Orders or SOWs shall not be superseded or merged unless explicitly stated herein; and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
8.3 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Edgenet in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
8.4 Edgenet may identify Customer as a customer and display Customer’s name and logo solely for such purpose on Edgenet’s website and marketing materials provided that Customer may request that Edgenet cease such use at any time upon written notice to Edgenet.
8.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Tennessee without regard to its conflict of laws provisions.