This Services Agreement, and any applicable Orders, Statements of Work, or schedules, each as may be subsequently amended (collectively, the “Agreement”) is between CWPS Easy Data Protection, LLC, a Delaware limited liability company (“Company” or “CWPS”) and (“Customer” or “Client”), each a party. This Agreement is entered into and effective as of (the “Effective Date”) and shall remain in effect until terminated pursuant to the terms of this Agreement. This Agreement is incorporated by reference into the Service Order(s) between the Company and the Customer. In exchange for the covenants and promises herein, which the parties agree are sufficient consideration, the parties agree as follows:
A) Services. The Company will provide to Customer the services (the “Services”) described in the Service Order(s).
B) Customer Area and Equipment. As part of the Services, Customer may be required to purchase Company Equipment placed “Company Equipment” at Customer’s business location. The “Customer Area” shall mean the location(s) within Customer’s location that the Company and Customer mutually agree upon for placement of Company Equipment. As part of Services, Company is hereby granted a license to install, maintain, use, operate, monitor, repair and replace in the Customer Area certain equipment owned or controlled by Company as set forth in EDP On-boarding Scope of Work which is prepared by the Company with Customer’s input, and any tools, devices, supplies or materials brought into the Customer Area by Company (collectively the “Company Equipment”). Company is responsible for the maintenance and operation of Company Equipment. In the event no Company Equipment exists, provisions in this Agreement that describe requirements for Company Equipment shall not apply, including Section 8(b). Company may use the Customer Area for any purpose that facilitates providing the Services to Customer and as set forth herein. Company is not granted, and specifically disclaims, any possessory, leasehold, or other real property interest in the Customer Area, or any other portion of the building or premises in which the Company Equipment is located. Customer shall work with Company to ensure the Customer Area is sufficient to enable Company to provide the Services.
2. FEES AND BILLING.
A) Charges. Charges are specified in Article 5 of the Service Order All such charges are exclusive of any sales or use taxes and other federal, state, municipal, or other governmental taxes or levies applicable to the sale or use of Services hereunder (collectively “Taxes”) now in force or enacted in the future, all of which Customer will be responsible for and shall pay in full. Customer will be fully responsible for any fees, charges, costs, expenses (collectively “charges”), other than those included in the Services, and third-party claims that may result from Customer’s use of, or access to, the Services.
B) Billing and Payment Terms. The Company issues invoices monthly, or as set forth in an applicable Service Order. Recurring monthly charges are invoiced in arrears. Customer will be invoiced for all non-recurring charges, and the recurring monthly charges for the then current month (pro-rated) at the end of the month, including any initial setup fee. Customer shall pay all charges upon receipt of the invoice, and payment shall be past due if not paid thirty (30) days after date of the invoice. Late payments will accrue interest at the lower of 1½ % per month, or the highest rate allowed by law. If Customer makes a late payment during the Term, the Company has the right, upon written notice to Customer, to require a security deposit or other reasonable assurances to secure Customer’s payment obligations hereunder. Customer agrees to pay the Company’s reasonable costs of collection of past due amounts, including collection agency fees, attorneys’ fees and court costs.
C) Security Deposit. In the event Customer is required to pay to the Company a security deposit (“Security Deposit”), the Company may, without further notice to Customer and without prejudice to the Company’s other remedies, apply part or all of the Security Deposit toward the cure of Customer’s Default if Customer Defaults under this Agreement. In such event, Customer shall, within five (5) business days after written demand, pay the Company an amount equal to the amount so applied to restore the Security Deposit to its original amount. The Company may co-mingle the Security Deposit with its own funds. Customer shall not be entitled to receive interest on the Security Deposit. Any part of the Security Deposit not used by the Company shall be returned to Customer within sixty (60) days after this Agreement expires or is terminated, after applying the Security Deposit to any outstanding amounts due and payable to the Company. If the Company assigns this Agreement, then the Company shall be relieved of liability for the Security Deposit upon delivery of the Security Deposit to an authorized assignee.
3. RIGHTS AND OBLIGATIONS.
A) Access Control. Customer will provide to the Company’s employees, or designee, access to the Customer Area during normal business hours as needed for Company to provide the Services (the “Permitted Individuals”).
B) Acceptable Use. Customer’s use of the Services shall comply with the Company’s Acceptable Use Policy incorporated into this Agreement as set forth in https://azure.microsoft.com/en-us/support/legal/subscription-agreement/(“AUP”), as the same may be modified by the Microsoft from time to time. As of and after the Effective Date, Customer shall have access to the AUP at the URL cited above or at Company’s website. Customer acknowledges that the Company exercises no control whatsoever over the content of information passing through the Customer equipment or Company Equipment utilized in connection with the Services, and that it is Customer’s sole responsibility to ensure that the information it transmits and receives complies with the AUP and all applicable laws and regulations.
C) Restrictions on Use. Customer shall not and shall not permit others, including its employees and agents, to reproduce, reverse-engineer, de-compile, disassemble, alter, translate, modify, adapt, market, resell, or sublease any Services, unless expressly permitted by this Agreement. Other than as specified herein, no license, title, or right is granted or transferred to Customer in or to any service marks, trademarks, copyrights, patents, trade secrets or other intellectual property rights of the Company (“Proprietary Information”), and Customer shall not have any right to use any Proprietary Information, or any Company software or hardware except as provided to Customer as part of the Services. Customer may not directly connect Company Equipment with equipment of a third party or any other equipment without the consent of Company. The Company reserves the right to take any reasonable action to prevent harm to the services, personnel, or property of the Company (and its affiliates, vendors, and customers) or other persons. Without the prior written consent of the Company, Customer shall not permit the Services to be utilized for the provision of any services that compete with any Services.
D) Cooperation. Customer shall reasonably, timely, and in good faith cooperate with the Company and the Company’s designees and agents to facilitate the Company’s performance of Services and shall provide the Company with reasonable access to the necessary information, including but not limited to, system or platform design, network architecture, IP addresses, hardware, and software specifications (“Customer Information”) to provide the Services described in this Agreement. It is essential to the Company’s performance hereunder that the Company have reasonable access to Customer Information. Customer shall (i) configure the Customer equipment (and allow Company to configure the Company Equipment), and if applicable for the Services, any of Customer’s equipment not located in Customer’s premises, according to the technical specifications reasonably provided by the Company, and (ii) maintain any necessary licenses associated with any of Customer’s equipment. The Company assumes no responsibility to obtain from Customer’s licensees necessary licenses or consents to monitor or access Customer equipment to perform the Services. If Customer modifies its Customer Information in a manner that necessitates a change to the Services, then Customer shall pay any reasonable time and materials that the Company incurs to troubleshoot, modify, or make repairs necessary to adapt to the Customer modifications. Unless specified otherwise in the Service Order(s), Customer is responsible for purchasing and maintaining all manufacturer warranties, updates, patches, upgrades, and service plans reasonably required to ensure that the Customer equipment and Customer Information remains in working order through the Term and the Company shall not be responsible for any delay or failure by Customer to purchase or maintain such coverage.
E) Customer Security. Customer agrees to use reasonable security precautions in connection with the use of the Services (including encrypting any information that is subject to special legal or regulatory security requirements and that is transmitted to or from, or stored by Customer on, the services or storage devices used by Customer) and require its customers and end users to use reasonable security precautions. Customer is otherwise responsible for the security of the Equipment. Customer shall be responsible for unauthorized use of the Services by any person, unless such unauthorized use results from the Company’s failure to perform its obligations hereunder.
F) Customer Equipment. Customer agrees to adhere to the Company’s reasonable quality standards for Customer equipment. The Company has the right to relocate Equipment with prior written notice to the Customer. The Company will not arbitrarily or discriminatorily make such changes and will work in good faith to minimize disruption to the Services.
G) Non-Solicitation. During the period beginning on the Effective Date and ending on the first anniversary of the termination or expiration of this Agreement in accordance with its terms, Customer agrees that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by the Company during such period. In the event of a violation of this provision, in addition to any other right the Company may have, Customer shall make a one-time payment to the Company in the amount of fifty percent (50%) of the employee’s new total estimated compensation for one (1) year.
H) Software Agent. Customer understands and agrees that, as part of the Services, (i) Company will install software on Customer equipment, (ii) the software is Company Equipment, and (iii) as a condition precedent to Customer’s use of the Services, Customer must accept and agree to the then-current end user license agreement for the software and failure to do so will prevent Company from providing the Services. Customer acknowledges and agrees that neither Company nor the software provider represent that the software is error-free or that the software will satisfy all or any Customer requirements.
A) Minimum Levels of Insurance. During the Term, both parties will keep in full force and effect insurance policies covering: (i) commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, (ii) workers’ compensation insurance in an amount not less than that required by applicable law, and (iii) “all risk” property insurance covering each party’s own property and equipment for the perils customarily insured for full replacement cost at the time of the loss. Within twenty (20) business days after written request, Customer will provide to the Company evidence of the foregoing insurance naming the Company as additional insured. Neither party has any obligation to insure the equipment or property of the other. The insurance policies required in this Agreement will be issued by financially secure insurance companies authorized to issue such insurance in the state in which the issuing party is conducting business or receiving Services.
B) Waiver of Subrogation. Neither party, nor its officers, directors, shareholders, employees, agents or invitees, will be liable to the other party or to any insurance company insuring the other party (by way of subrogation or otherwise) for any loss or damage to its equipment, property, or data, or for loss of business revenue or extra expense arising out of or related to its equipment, property, or data, if a party is required in this Section to maintain insurance for such loss or damage or expense.
5. CONFIDENTIAL INFORMATION.
A) Confidential Information. Each party may have access to certain non-public information of the other party. All such information, if in writing, shall be specifically and obviously marked as “confidential” by the disclosing party at the time of disclosure, or if disclosed orally, shall be orally designated as confidential and thereafter identified as confidential by written notice to the receiving party within a reasonable time (“Confidential Information”). The pricing and terms of this Agreement, the Service Order(s), Service Level Agreement, the Company’s physical security systems, specialized recovery equipment, techniques, audit and security reports, server configuration designs, Company Equipment designs, names of Company customers, pricing, and method of providing its respective services and products are hereby deemed Confidential Information and may be disclosed by the Company only. Neither party will use for its own account or the account of any third party, nor disclose to any third party (except as required by law or as reasonably necessary to the receiving party’s attorneys, accountants and other advisors who are obligated to maintain the confidentiality of such information), any of the other party’s Confidential Information. The disclosing party retains all right, title and interest in all Confidential Information it discloses under this Agreement and all improvements and modifications made thereto. Each party will use reasonable care, at least equivalent to the care used for its own similar Confidential Information, to protect the confidentiality of the disclosing party’s Confidential Information. Each party’s obligation under this Section will survive for an indefinite period following the expiration or termination of this Agreement. Each party agrees to use the other party’s Confidential Information only in connection with the performance or use of Services hereunder.
B) Exceptions. Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement and through no fault of the receiving party, (ii) the receiving party was legally in possession of prior to receiving it, (iii) the receiving party can demonstrate was developed by it independently and without use of or reference to the disclosing party’s Confidential Information, or (iv) the receiving party receives from a third party without restriction on disclosure. If a party is required to disclose Confidential Information by law, court order, or government agency, such disclosure shall not be deemed a breach of this Agreement.
C) Remedy. Any unauthorized copying, transfer, or use of any Confidential Information of the other party shall cause irreparable injury to the disclosing party that cannot be adequately compensated by monetary damages and the disclosing party shall be entitled to seek equitable relief, including injunctive relief, with bond waived, against the receiving party as a remedy for any material breach of this Section. The disclosing party may in addition to equitable relief, pursue any and all legal and contractual remedies available to the disclosing party.
6. REPRESENTATIONS AND WARRANTIES.
A) Warranties by Customer. Customer represents and warrants to the Company that (i) Customer has the legal right and authority to place and use the Company Equipment as contemplated by this Agreement, (ii) Customer is duly organized and has the authority to enter into this Agreement and to perform its obligations hereunder, (iii) the person signing this Agreement, the Service Order(s), and any other documents on behalf of Customer is authorized to do so, and upon its execution by such person, this Agreement is the legally binding obligation of Customer, (iv) Customer’s and Customer’s end users’ use of the Services and of the Company Equipment does not, as of the Installation Date, and will not during the Term, violate applicable laws or regulations or the rights of third parties, (v) Customer has read the AUP, and Customer and Customer’s end users are in compliance with and shall continue to comply with the AUP during the Term and will disclose to the Company content and use for the Services at any time requested by the Company to confirm compliance with the AUP, (vi) Customer will use the Services only for Internet and data transmission, (vii) all information provided to the Company is materially accurate, and (viii) the Company’s service commitment and Customer’s remedy for interruption of service are detailed at, and Customer has read, understood, and agrees to the Service Level Agreement described in Section 10.
B) Warranties by the Company. The Company represents and warrants to Customer that (i) the Company has the legal right and authority to provide the Services, (ii) the Company is duly organized and has the authority to enter into this Agreement and to perform its obligations hereunder, (iii) the person signing this Agreement, and the Service Order(s), on behalf of the Company is authorized to do so, and upon its execution by such person, this Agreement is the legally binding obligation of the Company, and (iv) the Services supplied to Customer under this Agreement do not, as of the Installation Date, and will not during the Term, violate applicable laws or regulations.
THIS WARRANTY DOES NOT APPLY TO ANY SERVICES THAT EXPRESSLY EXCLUDE THIS WARRANTY (AS DESCRIBED IN SERVICE ORDER). THIS SECTION 6(b) STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY THE COMPANY TO PROVIDE THE SERVICES, OR OTHERWISE IN CONNECTION WITH THE SERVICES AND EQUIPMENT. THIS WARRANTY DOES NOT APPLY WHEN CUSTOMER IS IN DEFAULT OF THIS AGREEMENT.
C) NO OTHER WARRANTY. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY. EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN SECTION 6(b) ABOVE, THE, EQUIPMENT AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE EQUIPMENT AND SERVICES IS AT ITS OWN RISK. THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. WITHOUT LIMITING THE FOREGOING, THE COMPANY DOES NOT WARRANT AND HEREBY DISCLAIMS THAT THE SERVICES WILL PROVIDE PROTECTION FROM (i) VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, CANCELBOTS, OR OTHER HARMFUL OR DELETERIOUS PROGRAMMING ROUTINES, (ii) DATA LOSS, (iii) UNAUTHORIZED, UNKNOWN, OR UNFORESEEABLE SECURITY BREACHES, ACCESSES, OR ATTACKS INTO OR AFFECTING THE EQUIPMENT OR OTHER SYSTEMS, AND (iv) ANY FORM OF REAL-TIME DETECTION OF ANY OR ALL OF THE FOREGOING. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. NEITHER PARTY SHALL MAKE ANY REPRESENTATIONS OR WARRANTIES ON THE OTHER PARTY’S BEHALF. THE COMPANY IS NOT RESPONSIBLE FOR ANY DEFECTS OR DAMAGES TO EQUIPMENT, CUSTOMER AREA OR SERVICES RESULTING FROM (X) CUSTOMER’S, CUSTOMER’S AGENTS’, OR CUSTOMER’S EMPLOYEES’ MISHANDLING, ABUSE, MISUSE, OR ACCIDENT, (Y) FORCE MAJEURE, OR (Z) CUSTOMER’S USE OR PROVISIONING OF CUSTOMER EQUIPMENT ELECTRICALLY OR MECHANICALLY INCOMPATIBLE WITH SERVICES OR OF INFERIOR QUALITY. THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY REASON FOR ANY THIRD-PARTY EQUIPMENT PROVIDED BY CUSTOMER OR DAMAGES THAT ARISE AS A RESULT OF DEFECTS OR ISSUES RELATED TO THIRD PARTY EQUIPMENT OR CUSTOMER EQUIPMENT.
COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER , WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA, OR OTHER ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH THE INTERNET OR YOUR SERVERS.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION.
A) Limitation of Liability. (i) In no event will either party be liable or responsible to the other for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of Services or Equipment, arising from or relating to this Agreement, the Service Order(s), the Service Level Agreement, , even if advised of the possibility of such damages, whether arising under any theory of contract, tort (including negligence), strict liability, or otherwise.
(ii) EACH REPRESENTATIVE AND ANY OTHER PERSONS VISITING THE CUSTOMER AREA DOES SO AT ITS OWN RISK AND THE COMPANY ASSUMES NO LIABILITY WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER THAN THE COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PERSONAL INJURY TO SUCH PERSONS DURING SUCH A VISIT.
(iii) THE COMPANY ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS RELATING TO, CUSTOMER’S BUSINESS RESULTING FROM ANY CAUSE WHATSOEVER. THE COMPANY ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER EQUIPMENT OR TO OTHER DAMAGES CAUSED BY OR RELATED TO CUSTOMER’S USE OF THE SERVICES RESULTING FROM ANY CAUSE OTHER THAN THE COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. TO THE EXTENT THE COMPANY IS LIABLE FOR ANY DAMAGE TO, OR LOSS OF, THE CUSTOMER EQUIPMENT FOR ANY REASON, SUCH LIABILITY WILL BE LIMITED SOLELY TO THE THEN-CURRENT BOOK VALUE OF THE CUSTOMER’S EQUIPMENT SO DAMAGED. TO THE EXTENT THE COMPANY IS LIABLE FOR ANY OTHER DAMAGE OR LOSS SUCH LIABILITY WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO THE COMPANY DURING THE PRIOR SIX (6) MONTH PERIOD. THE LIMITATION OF LIABILITY PROVISIONS IN SECTION 7(a) SHALL EXTEND TO THE BENEFIT OF COMPANY INDEMNIFIED PARTIES.
(iv) Notwithstanding anything herein to the contrary, except for claims based on the Company’s willful misconduct, Company’s maximum aggregate liability to Customer and Company indemnified parties related to or in connection with this Agreement, Service Order(s), Service Level Agreement, the Services, Equipment will be limited to the total amount paid by Customer to the Company during the prior six (6) month period.
(v) At the Company’s option, the Company may provide to Customer a credit for future services at the end of the Term equal to the Company’s liability under Sections 6 and 7 in lieu of cash. At the Company’s option, the Company may also offset any amounts owed to the Customer against any amounts owed to the Company by Customer.
(vi) No claim may be asserted by either party against the other party with respect to any event, act or omission for which a claim accrued more than two (2) years prior to such claim being asserted.
B) Indemnification. (i) Each party (the “Indemnifying Party”) will indemnify, defend and hold the other party, and each of their respective affiliates, directors, shareholders, officers, agents, landlords, independent contractors, employees, successors and assigns (collectively an “Indemnified Party”) harmless from and against any and all costs, liabilities, losses, and expenses (including but not limited to reasonable attorneys’ fees) (collectively “Losses”) resulting from any claim, suit, action, demand, or proceeding (each, an “Action”) brought by any third party against the Indemnified Party, to the extent not covered by the Indemnified Party’s insurance, (A) alleging or arising from the gross negligence or willful misconduct of the Indemnifying Party or its employees, agents, contractors, or invitees, in the performance or non-performance of its obligations hereunder, (B) arising from any failure by the Indemnifying Party or its employees, agents, contractors, or invitees, to comply with the AUP or applicable law, (C) arising from or connected with any claims of ownership or superior rights to Customer equipment or Company Equipment or other intellectual property by a third party.
(ii) Customer will indemnify, defend and hold the Company and the Company’s Indemnified Parties harmless from and against any and all Losses resulting from or arising out of any Action brought by or against the Company or the Company’s Indemnified Parties alleging: (A) any damages arising from Customer equipment, Customer’s business or Customer’s use of the Services or Customer content, or (B) any damage or destruction to Company Equipment or Customer equipment or the equipment of any other person or entity by Customer or its representatives or designees.
(iii) The Indemnifying Party’s obligations hereunder are conditioned upon: (A) prompt notice to the Indemnifying Party upon receipt of written notice of an Action for which the Indemnified Party seeks indemnity, (B) tendering control of the defense of such Action and any related settlement discussions to the Indemnifying Party (the Indemnified Party may participate in such defense, at its own expense, with counsel of its own choosing that Indemnifying Party reasonably approves), (C) the reasonable cooperation of the Indemnified Party, at the Indemnifying Party’s request and expense, and (D) obtaining the Indemnified Party’s prior written consent (which shall not be unreasonably withheld, delayed, or cause any delay or harm in the settlement discussion), for any settlement of an Action that does not include an unconditional release of the Indemnified Party from the indemnified liability.
8. TERM AND TERMINATION.
A) Initial and Renewal Terms. This Agreement shall commence on the Effective Date and remain in effect for three (3) years (the “Initial Term”), unless earlier terminated as provided herein. The term of the Service Order(s) shall remain in effect during the Initial Term. This Agreement, and any applicable Service Order(s), shall automatically renew for successive 1-year terms (each a “Renewal Term” and collectively with the Initial Term and any Extended Term, the “Term”), unless notice of non-renewal is provided in a writing signed by the non-renewing party no less than ninety (90) days before expiration of the Initial Term or applicable Renewal Term. In the event Customer notifies the Company of non-renewal of the Term, at the end of the Term, this Agreement and any applicable Service Order(s) shall automatically renew for successive extended terms of thirty (30) days each (each an “Extended Term”), and all recurring monthly charges shall be increased by thirty percent (30%) during the Extended Term until the Services have been discontinued and the Company Equipment has been returned to Company.
B) Removal of Company’s Equipment. Immediately upon expiration of the Term or promptly upon earlier termination of this Agreement for any reason, Customer shall allow Company to remove all Company Equipment from the Customer Area.
C) Liquidated Damages. Customer acknowledges that the amount of the recurring monthly charge for Services is based on Customer’s agreement to pay the recurring monthly charges for the entire Term. The Company’s damages from (i) termination by the Company associated with a Customer Default or (ii) the early termination by Customer not associated with a Company Default are difficult to ascertain. For that reason, Customer agrees to pay one hundred percent (100%) of the remaining recurring monthly charges and any charges due and payable under any applicable Service Order(s) through the then current Term. Customer also agrees to pay one hundred percent (100%) of any third-party termination or cancellation charges that the Company incurs as a result of Customer’s Default for any of the Services ordered for and provided to Customer under this Agreement or any subsequent amendment to this Agreement. This provision is intended to establish liquidated damages and is not intended as a penalty. Other than as set forth herein, this liquidated damages provision does not waive or alter any remedies available to the Company under this Agreement for Customer’s Default or early termination.
9. DEFAULT AND REMEDIES.
A) Default by the Company. The occurrence of any of the following will be a “Default” by the Company: (i) the Company fails to perform a material obligation under this Agreement after receiving fifteen (15) days advance written notice from Customer of such failure, or (ii) the Company’s insolvency or liquidation as a result of which the Company ceases to do business, or (iii) the material breach of any representation or warranty made by the Company in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by the Company within fifteen (15) days after receiving written notice from Customer of such breach. A violation of the Service Level Agreement expressly is not a breach of a representation or warranty or a Default hereunder.
B) Default by Customer. The occurrence of any of the following will be a “Default” by Customer: (i) Customer fails to pay, when due, any fees or charges owing to the Company under this Agreement, provided that the first such nonpayment in any calendar year shall not be a Default unless Customer fails to pay such amount within three (3) business days after notice from the Company of such nonpayment (a “Payment Default”), or (ii) Customer fails to pay (or repay) timely any or all of a Security Deposit and does not cure such failure within five (5) business days after written notice thereof (“Security Default”), (iii) the material breach of any representation or warranty made by Customer in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by Customer within fifteen (15) days after receiving notice from the Customer of such breach, (iv) Customer fails to comply with any material obligations under this Agreement (other than payment or security deposit obligations) after receiving fifteen (15) days advance written notice from the Company of such failure, (v) Customer’s insolvency or liquidation as a result of which Customer ceases to do business or if the Company has a reasonably held belief that Customer may be unable to pay its debts as they become due, or (vi) the Customer’s filing for bankruptcy, reorganization or failure to discharge an involuntary bankruptcy petition within sixty (60) days.
C) Remedies for Default. If a party commits a Default, the non-defaulting party will be entitled, at its election to exercise any one or more of the following remedies, as applicable, then or at any time thereafter: (i) to exercise any remedy for such Default set forth elsewhere in this Agreement, (ii) except as otherwise limited in this Agreement, to pursue any remedy available at law or in equity, or (iii) to terminate this Agreement. In the event of Default by Customer, in addition to and without waiving any other remedies for Default available to the Company hereunder, the Company may, without notice beyond the initial notice required for the Default, (A) suspend or discontinue Services or performance under this Agreement, (B) collect liquidated damages as set forth in Section 8(c), (C) treat as abandoned, dispose of, or retain and use, free of any rights or claims thereto from Customer or anyone claiming by, through or under Customer, any or all of the Customer data, as the case may be, after Customer has been notified of Default and failed to cure the Default, and then only after twenty (20) business days prior notice to Customer and/or (D) restrict the Customer’s physical and electronic access to the Services, data, or Equipment. In the event of suspension or discontinuance of Services due to a Customer Default, Customer agrees to pay the Company’s then current reinstallation fee. Each remedy of the non-defaulting party as provided for in this Section 9 or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other remedy provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by the non-defaulting party of any one or more of such remedies shall not preclude the simultaneous or later exercise by the non-defaulting party of any or all such other remedies.
D) Power of Attorney; Further Assurances. Customer hereby appoints the Company as the Customer’s true and lawful attorney, with full power of substitution, to do any or all of the following, in the name, place, and stead of Customer, as the case may be following a Default by Customer, take any action and execute any instrument that the Company may deem necessary or advisable for the Company (i) to use, maintain, or retrieve the Company Equipment, as applicable, or (ii) to cancel, use, maintain, transfer or retrieve software licenses that Company has secured to enable Customer to use the Services. Customer, upon request of the Company, will promptly deliver and execute or cause to be delivered and executed, in form and content satisfactory to Company, any assignment, or other document as Company may reasonably request in order to accomplish the purposes of this Section 9 or to allow Company to retrieve Company Equipment.
10. SERVICE LEVEL AGREEMENT.
The Company’s Service Levels Agreement is incorporated into this Agreement as set forth in the Service Order (“Service Level Agreement”) and the credits therein constitute Customer’s sole and exclusive remedy for the Company’s provision of or failure to provide Services to Customer, except that the Company shall have no obligation to compensate Customer under any Service Level Agreement in the event Customer is in Default or not current in its payment obligations under this Agreement. The Company may amend the Service Level Agreement periodically provided that (i) Customer is informed in advance, and (ii) the amendment does not materially alter the provision of Services.
A) Availability. Customer agrees that the Company will not be in breach of this Agreement if its failure to provide the Services is due to Company, Microsoft or Veeam scheduled down-time for backup or restore utility maintenance, network or utility outages.
B) Customer Permission. Customer expressly grants to the Company and its third party service providers, for the purpose of providing the data backup and restoration services, the right to access the Customer equipment and the right to reproduce the Files. CUSTOMER AGREES AND ACKNOWLEDGES THAT THE DATA BACKUP AND RESTORATION SERVICES ARE NOT INTENDED TO BE A COMPREHENSIVE DISASTER RECOVERY SOLUTION. THE COMPANY MAKES NO COMMITMENT UNDER THE DATA BACKUP AND RESTORATION SERVICES TO REPLACE OR REPAIR SERVERS OR OTHER EQUIPMENT.
12. CERTAIN DEFINITIONS.
A) “Company Equipment” shall the EDP Local Appliance, purchased, leased, or developed hardware, software, equipment, machinery, tools and devices (i) located in any Customer Area, except for Customer equipment, and/or (ii) located on the Customer’s premises to provide Services hereunder, and as may be more fully defined in any applicable Service Order(s), this Agreement or amendments thereto. “Equipment” shall refer to Company Equipment and Customer equipment collectively.
B) “Service Order” shall mean any agreement or document that itemizes the Services and charges or fees for such Services purchased by Customer.
13. OTHER PROVISIONS.
A) Assignment, No Third-Party Rights. Customer shall not assign this Agreement in whole or in part without the Company’s prior written consent. Any assignment in violation of the foregoing restriction will be void. Company may assign its rights and obligations under this Agreement without Customer’s approval or consent. Except as restricted above, this Agreement will be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Agreement is for the sole and exclusive benefit of the parties, and except as expressly provided herein, nothing in this Agreement shall be construed to give rights to any non-party.
B) Independent Contractors. Company shall provide services under this Agreement as an independent contractor, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
C) Waiver; Severability. Failure of either party to enforce any of its rights hereunder will not be deemed to constitute a waiver of its future enforcement of such rights or any other rights. If any provisions of this Agreement are held to be invalid, illegal, or unenforceable under present or future laws, such provisions will be struck from the Agreement or amended, but only to the extent of their invalidity, illegality or unenforceability. The parties remain legally bound by the remaining terms of this Agreement, and this Agreement will be deemed reformed in a manner as consistent as reasonably possible with the original intent of the parties as expressed herein.
D) Force Majeure. Either party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, terrorism, significant failure of the Internet, significant failure of a part of the power grid, earthquake, labor disputes and strikes, riots, war, governmental acts or requirements and other events of a comparable magnitude or type. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
E) Governing Law, Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to conflict or choice of law principles. The Company and Customer hereby consent and submit to the personal jurisdiction of the state and federal courts in Virginia for any actions or claims arising from this Agreement.
F) Integration. This Agreement expresses the complete and final understanding of the parties with respect to the subject matter hereof, and supersedes all prior communications between the parties, whether written or oral with respect to the subject matter hereof. No modification of this Agreement will be binding upon the parties hereto, unless in writing and executed by Customer and the Company. The parties expressly agree that this Agreement and any amendments executed by the parties shall supersede the terms and provisions of any Customer purchase order or other ordering document submitted to the Company by Customer.
G) Attachments Incorporated. The Service Order(s), AUP, Service Level Agreement and other attachments to this Agreement or the Service Order(s) (each an “Attachment”) are incorporated and made a part hereof as if fully set forth herein. This Agreement shall govern if there is a conflict between an Attachment and this Agreement, unless expressly stated otherwise in the Attachment.
H) Attorneys’ Fees. Except as otherwise provided in Sections 2(b), 6 and 7, if a dispute arises between the parties, the prevailing party in any action based upon the dispute shall be entitled to its reasonable attorneys’ fees and costs associated with such action.
I) Notices. Except where other means of communication are expressly provided or required in this Agreement, all notices under this Agreement will be in writing, signed by the party giving the same, and will be deemed properly given and received (i) on the same business day if via electronic mail or facsimile, (ii) on the next business day after deposit for pre-paid overnight delivery by an overnight courier service or (iii) three business days after mailing, by pre-paid registered or certified mail, return receipt requested. All such notices will be addressed to the Customer at the Customer Address or to the Company at the Company’s Notice Address set forth on the Service Order. Either party may change its address for notices hereunder by notice to the other party.
J) Survival. The respective rights and obligations of the Company and Customer, which by their nature would continue beyond the termination or expiration of this Agreement, including without limitation, the rights and obligations regarding ownership of intellectual property, confidentiality, limitation of liability, and indemnification, limitation and disclaimer of warranties and these miscellaneous provisions shall survive the termination or expiration of this Agreement.
K) Amendment. This Agreement may be amended in a writing signed by both parties. This Agreement may also be amended by the Company at any time by providing written notice to Customer, which notice must comply with Section 13(i) or be contained in a Service Order. Within five (5) days of receipt of such notice, Customer may object with written notice pursuant to Section 13(i) to the proposed amendment to the Agreement, at which point the parties will negotiate in good faith concerning such proposed amendment.
L) Publicity. Customer agrees that the Company may publicly disclose that the Company is providing Services to the Customer and may include Customer’s name in promotional materials, including press releases.
M) Counterparts, Authority to Sign. This Agreement may be executed in counterparts and by facsimile signatures, each of which shall be deemed an original and all of which together shall constitute one instrument. Each person signing below on behalf of a party represents and warrants that he or she is authorized to sign on behalf of and bind that party.