MSA

This Master Service Agreement (“MSA” or “Agreement”) is a legally binding contract between Define Edge (“us,”, “our,” “we” “or “Define Edge”) and any party that has entered a Work Order (as hereinafter defined) with Define Edge or otherwise engaged Define Edge for the sale of good or services (“you” or “Client). Define Edge and Client may sometimes be individually referred to as a “Party” and collectively as the “Parties”. This MSA defines and governs the relationship and obligations between the Parties and limits our liability for any services or products that we provide to you.

Please read this Agreement carefully and keep a copy for your records.

By accessing or using any service or product that we provide to you, you agree to be bound by this Agreement and all of its terms, as may be modified from time to time.

Please note that this MSA contains an arbitration clause that requires that any dispute between you and us be decided by a private arbitrator.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Define Edge and Client hereby agree that the terms and conditions set forth in this MSA shall be applicable to any Work Order entered into between Define Edge and Client and any such Work Order shall be deemed to incorporate the terms and conditions of this MSA.

SCOPE: SERVICES

This Agreement governs all services and/or projects that we perform for you, as well as any licenses, services, or products that we assign, sell or re-sell to you, whether provided as Subscription Services (as hereinafter defined), as Pay as You Go Services (as hereinafter defined) or otherwise (collectively, the “Services”)
Subscription Services. Define Edge may provide “Subscription Services” as more fully described in one or more Statement(s) of Work, quotes, proposals, service orders, or similar electronic or paper documents that we provide to you, and any amendments, attachments or exhibits thereto, (collectively “SOW”). The SOW will describe, summarize, and/or define the Subscription Services to be provided by Define Edge to You, including the individual additional terms and conditions specific to that SOW. By executing an SOW, you agree to be bound by the terms of this Agreement.
Pay As You Go Services. Define Edge may provide “Pay as You Go Services” when requested by the Client, the scope, and fees for which will be confirmed and accepted by Define Edge in writing and/or by email in a Service Order Confirmation (“SOC”). By requesting and receiving “Pay as You Go Services” you agree to be bound by the terms of this Agreement and any additional terms set forth by Define Edge in the Service Order Confirmation.
No Obligation. Define Edge has no obligation to provide Services unless and until the Parties enter into a mutually acceptable agreement as to the scope, terms, and fees for the Services to be provided as set forth in an executed SOW or SOC (collectively, “Work Orders”).
Conflict of Terms. Other than for the provisions set forth in the paragraphs titled “Ownership”, “Confidentiality”, “Limited Warranties”, “Indemnification; Limitations on Liability”, “Term; Termination”, “Arbitration”, “Customer Representations, Warranties and Covenants, “Additional Terms; Third Party Services” and “Miscellaneous” (collectively, the “Fundamental Sections”), in case of conflict or inconsistency between the terms in a Work Order and the terms in this Agreement, then the terms of the Work Order will govern and control exclusively as to the Services provided under that Work Order. In no event will any provision in a Fundamental Section be amended, supplemented, or modified except in a writing signed by us and expressly stating that such writing overrides a specific provision in such Fundamental Sections.
Amendments. We reserve the right to amend this Agreement (each, an “Amendment”) at any time by posting the Amendment on our website at (the “Website”). Any Services provided by us will be governed by the terms of the Agreement available on the Website on the date that: 1) the specific Work Order regarding those Services is approved by you and us; or 2) the specific Work Order is renewed. We recommend that you read and retain a copy of this Agreement as in effect at those times.

GENERAL REQUIREMENTS

Environment Defined. For the purposes of this Agreement, “Environment” means, collectively, any computer network (cloud-based or otherwise), computer system, peripheral or device (virtual or physical) that is either a) installed, maintained, monitored, or operated by us pursuant to a SOW or b) in existence and in use by the Client when an WOC is sent by us. To avoid a delay or negative impact on our provision of the Services, during the term of any Work Order, you agree to refrain from modifying or moving the Environment or installing software or adding hardware in the Environment, unless we have expressly authorized, in writing, such activity in advance. In situations where we are co-managing an Environment (such as situations in which we are supporting your internal IT department), we will not be responsible for changes to the Environment or issues that arises from those changes that are not authorized by us in writing. Unless specifically and expressly included in a Work Order, any consultation, information technology services, equipment or products required to remediate issues caused by your unauthorized modification of the Environment are out-of-scope and not covered under any Work Order. If requested and accepted by Define Edge, Define Edge may provide Services to help you remediate the issues, but only after a new, mutually acceptable scope of work is set forth in a new Work Order concerning the mediation services which likewise incorporates the terms of this Agreement is agreed to and executed by the Parties.
Minimum Requirements. Everything in the Environment must be genuine and licensed including, but not limited to all hardware, software, etc. If we ask for proof of authenticity and/or licensing, you must provide us with such proof. If we, or any third-party provider of equipment, services or software (each, a “Third Party Provider”), require you to implement certain minimum hardware or software requirements in a Work Order, (“Minimum Requirements”), you agree to do so as an ongoing requirement of us providing the Services to you. Unless specifically and expressly included in a Work Order, any consultation, information technology services, equipment or products required to bring the Environment into compliance with Minimum Requirements, or to maintain the Minimum Requirements, are out-of-scope and not covered under any Work Order. If requested and accepted by us, Define Edge may provide Services to help you meet Minimum Requirements, but only after a new, mutually acceptable Work Order concerning the Minimum Requirements which likewise incorporates the terms of this Agreement is agreed to and executed by the Parties.
Software Agents. Certain Services may require the installation of software agents in the Environment (“Software Agents”). Software Agents are software programs that can operate responsively without continuous human supervision to perform a necessary function. You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so.
Updates. Patches and updates to hardware and software (“Updates”) are created and distributed by third parties—such as equipment or software manufacturers—and may be supplied to us from time to time for installation into the Environment. If Updates are provided to you under a Work Order we will implement and follow the manufacturer’s recommendations for the installation of Updates; however, (i) we do not warrant or guarantee that any Update will perform properly, (ii) we will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, and (iii) we may, in our sole discretion, decline to install an Update if your Environment is not in compliance with Minimum Requirements or if any Recommendation (as defined below) material to such Update has not been implemented.
Third Party Support. If, in our discretion, a hardware or software issue requires vendor or original equipment manufacturer (“OEM”) support, we may contact the vendor or OEM (as applicable) on your behalf and invoice you for all fees and costs incurred by us in connection thereto.
Third Party Products. Some of our Services may require you to license, install, or use third party software, hardware, or products (“Third Party Products”).You agree that your license, installation or use of each Third Party Product shall be governed by the Third Party Product license provided therewith and that you agree and warrant that you will abide by its terms, including all limitations your license of the Third Party Products. Unless otherwise specified in a Work Order, Client shall be responsible to pay for, maintain and comply with any necessary licenses as may be necessary for the performance of the Services under this Agreement.
Open-Source Components. Some of our Services may include open-source components licensed under open-source licenses approved by the Open-Source Initiative. Any use of such Services is governed by and subject to the terms of such open-source licenses.
Recommendations. From time to time, we may provide you with recommendations related to the Services (each, a “Recommendation”). For example, our Recommendation may include increasing server or hard drive capacity, increasing CPU power, replacing obsolete equipment, or refraining from engaging in acts that disrupt the Environment or make the Environment less secure. A Recommendation may require you to make additional purchases or investments in the Environment at your sole cost. We are not responsible for any problems or issues (such as downtime or security-related issues) caused by your failure to promptly follow our Recommendation. If your failure to follow a Recommendation materially adversely affect the provision of our Services under a Work Order, we may, in our sole discretion, elect to suspend the provision of such Services or terminate such Work Order, upon notice to you, effective as of the date stated in such notice. We are not responsible for any losses, damages and costs incurred by you upon such suspension or termination. Unless specifically and expressly stated in a Work Order, any services required to remediate issues caused by your failure to follow any Recommendation are out-of-scope and not covered under any Work Order. If requested, Define Edge may provide Services to help you remediate the issues, but only after a new, mutually acceptable Work Order is agreed to and executed by the Parties, which incorporates the terms of this Agreements.
Services Start Dates, Services Timeline. Dates and timelines provided in a Work Order are estimates, provided as a reference, and may vary and/or be delayed as circumstances warrant. All Services will be performed on a schedule, and in a prioritized manner, as we deem reasonable and necessary. Exact commencement and/or start dates may vary, deviate or be delayed from the dates stated in a Work Order depending on the Service being provided and the extent to which prerequisites must be completed, such as transition or onboarding activities, if any. If Services are significantly delayed due to any failure on your part to comply with Minimum Requirements and/or Recommendations, we may be unable to provide the Services at the prices quoted in a Work Order.
Authorized Contact(s). You are required to provide us, in writing, with the name and contact information of one or more of your personnel or representatives who are authorized to provide directions or consent in connection with our Services. (“Authorized Contacts”). Unless a different Authorized Contact is appointed pursuant to a specific Work Order in connection with the Services to be rendered thereunder, the Authorized Contact for all Work Orders and all Services shall be the person identified as “Primary Contact” on Define Edge’s Customer Intake Form. Define Edge will be entitled to rely on any directions or consents provided by the Authorized Contact, unless you have submitted to us, in writing, any changes or revocations of authority. Changes submitted in writing will be implemented within two (2) business days after the first business day on which we receive your change notice. Do not use a ticketing system or help desk request to notify us about the change of an Authorized Contact; similarly, do not leave a recorded message for us informing us of a change to your Authorized Contact. We may, in our sole discretion, delay the provision of Services until we can confirm the Authorized Contact’s authority within your organization. Under no circumstances, will we have any responsibility or liability for any action or inaction undertaken with the direction or consent of any one of your Authorized Contacts.
Insurance.
- Generally. Define Edge and you will each maintain, at each Party’s own expense, all insurance reasonably required in connection with this Agreement or any Work Order, including but not limited to, workers compensation and general liability. We agree to maintain a general liability policy with a limit not less than $1,000,000 per occurrence. If any of the insurance policies described in this Section are canceled, materially changed or not renewed, the applicable Party must provide the other Party at least thirty (30) calendar days written notice of such cancelation, change or non-renewal by certified mail unless such insurance policy is replaced by a policy providing substantially similar coverage.

- Cybersecurity and Cybersecurity Insurance. Define Edge is not a managed security service provider. Although Define Edge takes all reasonable steps to protect the Services from a cybersecurity incident, such as through malware, ransomware, or other malicious activity (“cyber incident”) no steps are foolproof and the means by which cyber incidents occurs are constantly changing. There are many steps you should consider reducing the risk of a cyber incident occurring and mitigate its impact if a cyber incident nevertheless occurs. For example, you should consider (I) educating your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and other techniques used by bad actors to perpetrate a cyber incident; (ii) using up-to-date software, hardware and operating systems and installing all recommended updates and security patches, as further discussed above, and (iii) obtaining insurance against all types of cyber incidences, including cyberattacks, business email compromise, ransomware, social media fraud, data loss, and all other malware-related matters and privacy-related breaches. Unless a cyber incident is caused by our intentionally malicious behavior or our gross negligence, you agree to indemnify and hold us harmless from any costs, expenses, or damages arising from or related to such incidents.

- Define Edge Equipment. If you are supplied with any computer hardware, peripherals, devices and their software, hardware and other components that Define Edge provides to you to enable its provision of Services under a Work Order (collectively, “Define Edge Equipment”), you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of that equipment. Define Edge must be listed as an additional insured/loss payee on any policy acquired and maintained by you under this Agreement, and the policy will not be canceled or modified during the term of the applicable Work Order without thirty (30) days’ prior notice to Define Edge. Upon our request, you agree to provide proof of insurance to us, including proof of payment of any applicable premiums or other amounts due under the insurance policy. If you fail to obtain and maintain insurance for Define Edge Equipment as required under this Paragraph, we may, at our sole discretion, elect to obtain such insurance and charge you for the cost thereof. You agree to indemnify and hold us harmless of all losses, damages and costs incurred by us arising or resulting from or otherwise in connection with your failure to insure Define Edge Equipment.

FEES; PAYMENT

Payment. You agree to pay all amounts due under each Work Order and this Agreement at the times specified therein and herein. You are responsible for all freight, handling charges, insurance, sales or use taxes and any other taxes or governmental fees (including but not limited to import or export duties, and excise taxes) associated with the Services. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption prior to any applicable order being placed or service being implemented.
ACH; Credit Card Charges. Generally, fees charged for Services as described in a Work Order are based on timely payment by you via ACH. Payments made by any other methods may result in increased fees or costs. A surcharge of up to three percent (3%) will be added to all payments made by credit card. The prices quoted in an SOW for Subscription Services are based on automatic monthly recurring payment by you via ACH. Recurring payments made by ACH will be deducted from your designated bank account on the first business day of each month in which the Services are to be provided. Recurring payments made by credit card, plus the three percent (3%) surcharge, will be charged on the first business day of each month in which the Services are to be provided.
Additional Fees and Expenses. In the event that additional fees and expenses are incurred, including without limitation, in connection with Third Party Support or Third Party Products, the amount of such additional fees and expenses shall be added to your monthly recurring payment for Subscription Services or invoice for Pay as You Go Services, and shall be paid at the same time and in the same manner as set forth in the preceding paragraph.
Disputes. Notice of disputes related to any amounts due under a Work Order or this Agreement must be received by us within thirty (30) days after the applicable Service is rendered; otherwise, you waive your right to dispute such amounts thereafter.
Nonpayment. We may, in our sole discretion, suspend part or all of the Services without prior notice to you if payment of any amounts due under any Work Order or this Agreement are not made timely. Monthly or recurring charges shall continue to accrue and be due and payable by you during any period of suspension. We are not responsible, and you agree not to hold us liable for any problems or issues caused by a suspension of Services due to your nonpayment.
Collections. If we are required to send your account to collections or to start any collections-related action to recover unpaid amounts due under any Work Order or this Agreement, we will be entitled to recover all costs and fees we incur in the collections process including but not limited to reasonable attorneys’ fees and expenses.

RESPONSE; REPORTING

Pay As You Go Services Response. We will respond to your request for Pay As You Go Services in a commercially reasonable time, including consideration of the nature of the Services requested, the availability of our company resources, the urgency of the Pay As You Go Services requested, etc. Our estimation as to when we will be available to respond to request for Services will be included in the Service Order Confirmation, we send agreeing to provide the requested Pay As You Go Services. In no event shall we be responsible for delays in our response to a request for Pay As You Go Services or for any delay in providing Pay As You Go Services under a Service Order Confirmation that results for your acts, errors or omissions or issues concerning the Environment, or equipment or network, the availability of Pay As You Go Services or products from third parties or as a result of a Force Majeure Event (as defined below).
Subscription Services Response. We respond to any notification received by us of any error, outage, alarm, or alert pertaining to the Environment, in accordance with the following priority table:
- Critical/Urgent – First Response Time – 2 Hours
- High priority – First Response Time – 6 Hours
- Medium – First Response Time –2 business days

In no event will we be responsible for delays in our response or our provision of Services during (I) those periods of time covered under the Transition Exception (as defined below), or (ii) periods of delay caused by Client-Side Downtime (as defined below), or Vendor-Side Downtime (as defined below) or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Environment or our equipment or network, or (iv) delays caused by a Force Majeure Event (as defined below).

Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by us but which will not occur between the hours of 9:00 AM and 5:00 PM Eastern Time, Monday through Friday without your authorization or unless, in our sole discretion, exigent circumstances exist, during which time we will perform scheduled maintenance or adjustments to the Environment. We will use reasonable commercial efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
Client-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused, in whole or in part, by your actions or omissions (“Client-Side Downtime”).
Third Party Provider Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Third Party Providers, including any internet service providers, network providers or any other similar “upstream” service or product vendors.

Transition Exception. You acknowledge and agree that for the first forty-five (45) days following the commencement date of a Work Order, as well as any period of time during which we are performing “off-boarding-related services” (e.g., assisting you in the transition of the Services to another provider, terminating a service, etc.), the response time commitments described in this Agreement or any applicable Work Order will not apply to us, it being understood that there may be unanticipated downtime or delays related to those activities (the “Transition Exception”).

CUSTOMER REPRESENTATIONS, WARRANTIES AND COVENANTS

No Conflicts. You represent and warrant that you know of no law, rule or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. It is your sole and exclusive responsibility to determine whether Client and/or Services provided to the Client are governed by any law, rule, or regulation. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services or be grounds for our termination of the related Work Order and this Agreement.
Authorized Users. You represent and warrant that you will (i) limit the use of and access to the Services only to authorized persons (each, an “Authorized User”) and prevent unauthorized access to or use of the Services, (ii) maintain the security and confidentiality of usernames and passwords, (iii) periodically review personnel access rights to ensure that access policies are being enforced, and to help ensure that all access rights are correct and promptly updated; (iv) not exceed the number of Authorized Users permitted under the relevant Work Order; and (iv) promptly notify us if you become aware of or reasonably suspect any illegal or unauthorized activity or a security breach.
Virtual Security. You understand and agree that no security solution is one hundred percent effective, and the security of any system may be circumvented and/or rendered ineffective, in whole or in part, by malware, such as for example, “ransomware”, “worms”, “viruses” or other malicious software that may have been unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment. You likewise understand and agree that reasonable security solutions can be inadvertently or deliberately overcome by the acts, errors or omissions of your Authorized Users or your past or present employees, agents, third party contractors or others that gain access to the Services through you, including but not limited to by use of social media and “phishing”. For further discussion, see Section 11 (Insurance) above.
Physical Security. You agree to implement and maintain reasonable physical security for all managed hardware and related devices in your physical possession or control. Such security measures must include but are not limited to (i) physical barriers, such as door and cabinet locks, designed to prevent unauthorized physical access to protected equipment, (ii) an alarm system to mitigate and/or prevent unauthorized access to the premises at which the protected equipment is located, and (iii) fire detection and retardant systems.
Access to the Virtual and Physical Environment. You hereby grant to Define Edge and its designated Third-Party Providers he right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to enable us or our vendors, as applicable, to provide the Services. Depending on the Services, we may be required to install one or more Software Agents into the Environment through which such access may be enabled. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for Define Edge or its vendors to provide Services to the Environment and, if applicable, at your designated premises, both physically and virtually. Proper and safe environmental conditions must be provided and assured by you at all times. Define Edge shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve. You agree to indemnify and hold us harmless of all losses, damages and costs incurred by us arising or resulting from or otherwise in connection with your failure to provide proper and safe environmental conditions.
Prohibited Acts. You agree not to use our Services to (i) transmit, distribute or store any material in violation of any applicable law or regulation; (ii) infringe or misappropriate the intellectual property or proprietary rights, privacy or other rights of others; (iii) distribute content that may disable, damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information, including viruses, Trojan horses, spyware, malware, worms, time bombs or cancelbots; or (iv) knowingly engage in any activity designed to harass, or that will cause a denial-of-service to any other Define Edge customer or anyone else, or interfere with the use of Define Edge services by other Define Edge customers, or otherwise engage in any activity that would harm our operations or reputation.
Data & Service Access. You represent and warrant that none of the Services will be provided to persons outside of the United States and none of your data will be accessed, viewed, or stored on servers located outside of the United States. You agree to notify us if you require us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.
License Restrictions. You agree to comply in all respects with all applicable terms of Third-Party Services and Third-Party Products. Without derogating from the generality of the foregoing, you agree not to, and shall not permit any person to: (i) copy, in whole or in part, any software provided or licensed to you under a Work Order or this Agreement, or created or developed in connection with the provision of Services by us to you (each, a “Software”); (ii) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software; (iii) reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party; (v) bypass or breach any security device or protection used for or contained in the Software or its documentation; (vi) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or any entity, or that violates any applicable law; or (vii) use the Software for purposes of: (x) developing, using, or providing a competing software product or service; or (y) any other purpose that is to our, or the applicable licensor’s, detriment or commercial disadvantage.
Non-Solicitation. You acknowledge and agree that during the term of this Agreement and any Work Order and for a period of one (1) year following the termination of this Agreement and all Works Orders, you will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of our employees with whom you worked to discontinue or reduce the scope of their business relationship with us, or recruit, solicit or otherwise influence any of our employees with whom you worked to discontinue his/her employment or agency relationship with us. In the event of a violation of the terms of the restrictive covenants in this section, you acknowledge and agree that the damages to us would be difficult or impracticable to determine, and in such event, you will pay us as liquidated damages, and not as a penalty, an amount equal to one hundred thousand dollars ($100,000) or the amount that we paid to that employee in the one (1) year period immediately preceding the date on which you violated the foregoing restriction, whichever is greater in addition to such actual, out-of-pocket damages that we may be able to prove as a result of your actions. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to our employees by you will be deemed to be a material breach of this Agreement, in which event we shall have the right, but not the obligation, to terminate this Agreement or any then-current Work Order immediately.

OWNERSHIP

Each Party is, and will remain, the owner and/or licensor of all intellectual property owned by such Party, including, without limitation, all inventions, patents and patent applications, trademarks and trademark applications, trade dress and trade dress applications, works of authorship, copyrights and copyright applications, trade secrets, know-how, and any other intellectual property, including, without limitation, any other intellectual property that may be embodied within any idea, technique, process, system, methodology, software, program, code, data, document, or algorithm (collectively, “Intellectual Property”). Nothing in this Agreement or any Work Order shall be deemed to convey or grant any ownership rights or goodwill in one Party’s Intellectual Property to the other Party. You understand and agree that we own any Intellectual Property created or developed in connection with the provision of Services to you. In addition, you agree not to make any claim to ownership of any Intellectual Property created or developed in connection with the provision of Services to you. If, for any reason, any Intellectual Property created or developed in connection with the provision of Services to you is not otherwise owned by us upon creation or development, then you hereby irrevocably transfer and assign all rights, ownership, title, and interest in such Intellectual Property to us.
If we provide licenses to you for third party software under a Work Order, then you understand and agree that such software is licensed, and not sold, to you. You are allowed to use such third-party software subject to the terms and conditions of: (i) this Agreement; (ii) the applicable Work Order; and (iii) any applicable end-user license agreement (a “EULA”); no other uses of such third-party software are permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.

ADDITIONAL TERMS REGARDING THIRD PARTY SERVICES AND PRODUCTS

Define Edge as Reseller. As a cloud solution provider, Define Edge may provide cloud-based subscriptions to third party software, on a monthly, annual, or multi-year basis. Subscriptions to such software licenses provided by Third Party Providers are subject to the terms and conditions of the master software license agreement between Define Edge and such Third-Party Provider, including but not limited to price increases, minimum term subscriptions or monthly price surcharges. Where a Third-Party Provider requires an annual subscription for discounted monthly pricing, you will be charged an early termination fee equal to the monthly discounted subscription fee multiplied by the remaining months of the annual term, in addition to any other termination fees that may apply.
Portions of the Services may require you to accept the terms of one or more third party End User License Agreements. (“EULA”). If the acceptance of a EULA is required in order to provide the Services to you, then you hereby grant us permission and authorize us to accept the EULA on your behalf. AN EULA may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. You agree to be bound by the terms of each such EULA applicable to the portion of the Services to which it relates and will look only to the applicable Third-Party Provider for the enforcement of the terms of such EULA. If, while providing the Services, we are required to comply with a EULA, which is thereafter modified or amended, we reserve the right to modify or amend any applicable Work Order to ensure our continued compliance with the terms of the third-party EULA.
Third Party Services. Portions of the Services may be acquired from, or rely upon the services of Third-Party Providers, such as, for example, data hosting services, help desk services, domain registration services, and data backup/recovery services (“Third Party Service”). Not all Third-Party Services may be expressly identified as such in a Work Order. At all times we reserve the right to utilize the services of any Third-Party Provider or to change Third Party Providers in our sole discretion as long as the change does not materially diminish the Services to be provided to you under a Work Order. We are not responsible for the failure of any Third-Party Provider to provide Third Party Services to Define Edge or to you, and you agree to look solely to this Third-Party Provider for any losses or costs incurred by you for such failure.
Bring Your Own Devices (“BYOD”). You hereby represent and warrant that we are authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers, etc.) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you. Unless otherwise stated in a Work Order, Devices will not receive or benefit from the Services while the devices are detached from, or unconnected to, the Environment. You are strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to us and are not expressly covered under a managed service plan from us (“Unknown Devices”). We will not be responsible for the diagnosis or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and we will not be obligated to provide the Services to any Unknown Devices.
Define Edge Equipment. Unless otherwise noted in the applicable Work Order, all Define Edge Equipment is licensed to you, and is neither owned by you nor leased to you. Upon the expiration of an applicable Work Order, your license to use the Define Edge Equipment shall immediately terminate, and thereafter all Define Edge Equipment must be returned to us immediately at your expense. All configurations on the Define Edge Equipment are our proprietary information and may not be circumvented, modified, or removed by you without our prior written consent.
Hardware/Software Purchased Through Define Edge. All hardware, software, peripherals, or accessories purchased through Define Edge (“Third Party Products”) are generally nonrefundable once the product is obtained from a Third-Party Provider. If you require a refund, then the return policies of the applicable Third-Party Provider shall apply. We do not guarantee that any Third-Party Products will be returnable, exchangeable, or that re-stocking fees can or will be avoided. You will be responsible for the payment of all re-stocking or return-related fees charged by a Third-Party Provider. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you, but will have no liability whatsoever for the quality, functionality or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products.
Services Not a Compliance Solution. Unless otherwise expressly stated in a Work Order, the Services are not intended, and will not be used, to bring you into full regulatory compliance with any rule, regulation, law, or requirement that may be applicable to your business or operations. It is your sole responsibility to determine what, if any, rule, regulation, law, or requirement is required based on the nature of your business and the Services that we will be providing. Depending on the Services provided, the Services may aid your efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution.

WARRANTY FOR SERVICES.

The Services to be performed hereunder will be as described and limited by the terms of this Agreement and in the applicable Work Order as agreed to by the Parties. Define Edge does not warrant in any form the results or achievements of the Services provided or the resulting work product or deliverables. Define Edge only warrants that the Services will be performed by qualified personnel in a professional and skillful manner in accordance with the generally accepted industry standards then in practice.

LIMITATION OF WARRANTY.

THE WARRANTY SET FORTH IN THIS SECTION IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY WORK ORDER BETWEEN THE PARTIES, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. DEFINE EDGE DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIAL OR PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. DEFINE EDGE DOES NOT MAKE ANY WARRANTY THAT THE ACCESS TO OR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR YOUR EXPECTATIONS. DEFINE EDGE DOES NOT MAKE ANY WARRANTY THAT ACCESS TO OR USE OF THE SERVICES WILL BE AVAILABLE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT THE SERVICES ARE FREE OF MALWARE, VIRUSES, OR OTHER HARMFUL COMPONENTS. DEFINE EDGE MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USING THE SERVICES OR THAT THE SERVICES WILL COMPLY WITH REGULATORY OR LEGAL STANDARDS THAT APPLY TO YOU. DEFINE EDGE SHALL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY THIRD PARTY VENDORS OR THIRD-PARTY PROVIDERS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DEFINE EDGE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE SERVICES SHALL BE TO DISCONTINUE USING IT.
TO THE EXTENT THAT CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY. IT IS AGREED THAT THE DISCLAIMERS AND EXCLUSIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

NO WARRANTY FOR DATA LOSS.

UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DATA LOST, CORRUPTED OR RENDERED UNREADABLE DUE TO (I) COMMUNICATION AND/OR TRANSMISSIONS ERRORS OR RELATED FAILURES, (II) EQUIPMENT FAILURES (INCLUDING BUT NOT LIMITED TO SILENT HARDWARE CORRUPTION-RELATED ISSUES), OR (III) OUR FAILURE TO BACKUP OR SECURE DATA FROM PORTIONS OF THE ENVIRONMENT THAT WERE NOT EXPRESSLY DESIGNATED IN THE APPLICABLE WORK ORDER AS REQUIRING BACKUP OR RECOVERY SERVICES. UNLESS EXPRESSLY STATED IN A WORK ORDER, WE DO NOT WARRANT OR GUARANTEE THAT ANY MAINTAINED STORAGE DEVICE OR FUNCTIONALITY, DATA BACKUP DEVICE OR FUNCTIONALITY, OR LOAD BALANCING FUNCTIONALITY WILL OPERATE IN AN ERROR-FREE MANNER.

WARRANTY DISCLAIMER AS TO THIRD PARTY PRODUCTS AND SERVICES.

AS BETWEEN DEFINE EDGE AND YOU, ALL THIRD PARTY PRODUCTS AND THIRD PARTY SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY BY US OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIAL OR PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. DEFINE EDGE DOES NOT WARRANT THAT (I) THE THIRD PARTY PRODUCTS OR THIRD PARTY SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; (II) THAT YOUR ACCESS TO OR USE OF THE THIRD PARTY PRODUCTS OR THIRD PARTY SERVICES WILL BE AVAILABLE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT THE THIRD PARTY PRODUCTS OR THIRD PARTY SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (III) THAT THE THIRD PARTY PRODUCTS OR THIRD PARTY SERVICES WILL COMPLY WITH REGULATORY REQUIREMENTS APPLICABLE TO YOU OR APPEAR PRECISELY AS DESCRIBED IN THE ACCOMPANYING DOCUMENTATION; OR (IV) THAT THE RESULTS THAT MAY BE OBTAINED FROM YOUR ACCESS AND USE OF THE THIRD PARTY PRODUCTS OR THIRD PARTY SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS.

INDEMNIFICATION

Third Party Infringement Claim. In the event of a claim by a third party for intellectual property infringement on your use of the Services, Define Edge may, at its option, and sole cost and expense, (i) obtain the right for you to continue to use the Services as contemplated by the applicable Work Order or this Agreement, (ii) modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing, while providing substantially equivalent features and functionality, or (iii) terminate this Agreement with respect to the applicable Work Order and require you to immediately cease use of the Services alleged to be infringing. The foregoing shall not apply to any claim of infringement arising from a Third Party Product, any data, materials and information provided by you to us (“Customer Data”), or modification by you or on your behalf of any Services, or data, materials or information provided by us to you in connection with the Services without our prior written approval. THIS PARAGRAPH 1 SETS FORTH YOUR SOLE REMEDY AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Client Indemnification. You agree to indemnify, defend and hold Define Edge harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees and expenses, (collectively, “Damages”) that arise from, or are related to (i) your Customer Data, (ii) your failure to timely implement applicable Recommendations, (iii) a breach or non-fulfillment by you of any provision of a Work Order or this Agreement; (iv) your negligent, reckless or willful misconduct in the performance of your obligations under any Work Order or this Agreement or (v) your failure to comply with any federal, state or local laws, regulations or codes applicable to your business and operations.

LIMITATION ON LIABILITY

This paragraph limits our liabilities arising under this Agreement or any Work Order and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that Define Edge will not enter into any Work Order or this Agreement unless Define Edge could rely on the limitations described in this paragraph. IN NO EVENT SHALL DEFINE EDGE BE LIABLE TO YOU OR ANY PERSON FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, SUCH AS LOST REVENUE, LOSS OF PROFITS, SAVINGS, OR OTHER INDIRECT OR CONTINGENT EVENT-BASED ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY WORK ORDER , OR THE SERVICES, OR FOR ANY LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, OR FOR ANY BREACH HEREOF OR FOR ANY DAMAGES CAUSED BY ANY DELAY IN FURNISHING SERVICES UNDER THIS AGREEMENT OR ANY WORK ORDER, EVEN IF DEFINE EDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE FOREGOING, IF DEFINE EDGE IS NEVERTHELESS FOUND TO BE LIABLE TO YOU FOR DAMAGES, IT IS HEREBY AGREED THAT DEFINE EDGE’S TOTAL LIABILITY TO ANY PERSON FOR DAMAGES FROM ANY AND ALL CLAIMS OR CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ANY SUCH ACTION(S), THAT ARISE FROM OR RELATE TO ANY WORK ORDER OR THIS AGREEMENT (COLLECTIVELY, “CLAIMS”), WHETHER IN CONTRACT, TORT, INDEMNIFICATION, NEGLIGENCE OR OTHERWISE, SHALL BE LIMITED SOLELY TO THE AMOUNT OF THE FEES PAID BY YOU (EXCLUDING HARD COSTS FOR LICENSES, HARDWARE, ETC.) TO DEFINE EDGE FOR THE SPECIFIC SERVICE UPON WHICH THE APPLICABLE CLAIM(S) IS/ARE BASED DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED OR $500 WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT THAT THE CLAIMS ARE DIRECTLY AND SOLELY CAUSED BY DEFINE EDGE’S WILLFUL OR INTENTIONAL MISCONDUCT, OR GROSS NEGLIGENCE. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IT IS AGREED THAT THE FOREGOING IS NOT INTENDED TO BE AND IS NOT A PENALTY.

CONFIDENTIALITY

Confidential Information. Confidential Information means any and all non-public information provided to one Party (the “Recipient”) by the other Party (the “Disclosing Party”), including but not limited to such Disclosing Party’s business and operations, business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, device configurations, embedded data, compilations, metadata, technologies, manuals, records, articles, systems, customer information, customer lists, vendor information, vendor lists, financial information, results, accounting information, accounting records, legal information, pricing information, personnel information, reports, internal controls, security procedures, notes, communications, algorithms, inventions, unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, unpublished patent applications, patents, original works of authorship, copyrights, and other confidential intellectual property, and all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials (the “Notes”) prepared by or for the Recipient or its representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.
Exclusions. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient without use or reference to the Disclosing Party’s Confidential Information, or (iii) is or was lawfully and independently provided to the Recipient prior to disclosure by the Disclosing Party, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
Recipient Obligations. The Recipient agrees to keep confidential the Disclosing Party’s Confidential Information and not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the Disclosing Party in writing, (ii) as needed to fulfill Recipient’s obligations under this Agreement, (iii) as necessary to obtain insurance or legal, accounting or other professional advice, (iv) as otherwise required by law.
Due Care. The Recipient to exercise the same degree of care with respect to the Disclosing Party’s as it would normally take to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
Compelled Disclosure. If Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Disclosing Party’s Confidential Information, and to the extent permitted by law, Recipient will immediately notify the Disclosing Party in writing of such requirement to allow the Disclosing Party, at its expense, to seek a protective order or other appropriate remedy and/or waive Recipient’s compliance with the provisions of this Paragraph. Failing the entry of a protective order or the receipt of a waiver hereunder, Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that it has been advised, by written opinion from counsel, that it is legally compelled to disclose.
Business Associate Agreement. Where applicable and required, you and we may enter into a Business Associate Agreement (“BAA”) for the protection of personal health information in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). It is your sole responsibility to determine whether a BAA is required due to the nature of your business and the Services that we will be providing. In such cases, in the event of a conflict or inconsistency between the terms and conditions of a BAA and the terms and conditions of the confidentiality obligations under this Agreement, then the terms and conditions of the BAA shall govern and control.
Return or Destruction of Confidential Information.

- Define Edge Confidential Information. After the termination of this Agreement, at our written request, you will promptly return to us all copies of our Confidential Information, whether in written, electronic, or other form or media, or destroy all such copies and certify in writing to the us that such Confidential Information has been destroyed. In addition, you will destroy all copies of any Notes created by you or your representatives and certify in writing to us that such copies have been destroyed.

- Customer Confidential Information. Unless you request in writing in connection with a request for Transition Services (as defined below) or otherwise expressly stated in a Work Order, we may delete all of your Confidential Information from all our electronic records within thirty (30) days from the termination of this Agreement or as may be permitted by law, whichever is later.

FORCE MAJEURE.

Neither Party will be liable to the other Party for delays or failures to perform its obligations under this Agreement or any Work Order because of circumstances beyond such Party’s reasonable control. Such circumstances include any acts of God, flood, fire, earthquakes, pandemics or other natural disasters, or any acts or omissions of any governmental authority, or government orders, rules, regulations or laws, or acts of a public enemy, acts of terrorism, war, invasion, hostilities, or riots, sabotage, labor shortages, disputes or differences with workmen, or telecommunications breakdowns, power failure, or shortages, or delays in transportation or deliveries of supplies, or materials, or cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software and other similar events beyond a Party’s reasonable control (each, a “Force Majeure Event”).

TERM; TERMINATION

Term.
- Subscription Services. The duration and renewal terms for Subscription Services will be as set forth in each applicable SOW. This Agreement and the related SOW begins on the earliest date on which you accept the SOW and continues until expiration of the term as described in the related SOW or as provided in this Agreement, unless renewed as provided thereunder. The termination of one or more SOWs shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Work Order between the Parties.
- Pay As You Go Services. Pay As You Go Services are provided on an as requested and accepted basis as expressly set forth in a Service Order Confirmation by Define Edge and automatically terminate upon the completion of the Services described in such Service Order Confirmation.
Termination For Convenience.
- You and we may mutually consent, in writing, to terminate a Work Order or this Agreement at any time, subject to the payment of early termination fees, if applicable.
- Subject to the second paragraph under Section 4 below (Early Termination Fees), either Party may terminate this Agreement for convenience upon five (5) business days prior written notice to the other Party without penalty or fees so long as all obligations of all Parties under any Work Order and this Agreement have been performed to the satisfaction of the applicable Party, including but not limited to the payment of all amounts due under any Work Order and this Agreement. Notwithstanding the foregoing, you acknowledge and agree that any subscriptions to software licenses provided by Third Party Providers are subject to the terms and conditions of the master software license agreement between Define Edge and such Third Party Provider, including but not limited to price increases, minimum term subscriptions or monthly price surcharges. Accordingly, you agree that you shall remain responsible for payment in full of any payment obligations to any Third-Party Provider arranged or incurred on your behalf (including in connection with any software licenses) in accordance with the terms thereof. Where a Third-Party Provider requires an annual subscription for discounted monthly pricing, an early termination fee equal to the monthly discounted subscription fee multiplied by the remaining months of the annual term shall be payable upon early termination, in addition to any other termination fees that may apply.
- Define Edge may terminate an applicable Work Order (or the applicable portion of such Work Order) by providing no less than sixty (60) days prior written notice to you if Define Edge decides to generally cease providing a Service to all of its customers.
Termination For Cause.
- Define Edge may suspend or terminate this Agreement, effective on written notice to you, if (i) you fail to pay any amount when due hereunder and such failure continues more than ten (10) days after written notice of such failure has been delivered to you, or (ii) you or any of your staff, personnel, contractors, or representatives engages in any unacceptable act or behavior in violation of this Agreement or in a way that, in Define Edge’s sole discretion, renders it impracticable, imprudent, or unreasonable to provide the Services to you.
- Either Party may terminate this Agreement and all Work Orders, effective upon written notice to the other Party if the other Party materially breaches in the performance of any of its obligations under a Work Order or this Agreement, (other than non-payment as set forth in the preceding paragraph) and such breach is (i) incapable of cure, or (ii) being capable of cure, remains uncured within thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
- Either Party may terminate this Agreement and all Work Orders, effective immediately upon written notice to the other Party if the other Party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Effects of Termination.
- Use of Services, Third Party Products and Third-Party Services. Your right to use shall cease, and you agree to cease using, the Services and any Third-Party Products and Third-Party Services upon the expiration or termination of this Agreement or an applicable Work Order. All access to Services, Third Party Products and Third-Party Services shall be disabled effective as of the termination date of this Agreement.
- Early Termination Fees.If Define Edge terminates this Agreement or any Work Order pursuant to Paragraph 3 above, or if you terminate any Work Order for convenience prior to such Work Order’s expiration date, then Define Edge shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to Define Edge had this Agreement or the applicable Work Order remained in effect. If you terminate this Agreement or a Work Order pursuant to Paragraph 3 above, then you will be responsible for paying only for those Services that were delivered properly and accepted by you up to the effective date of termination.
- Equipment/Software Removal. Upon termination of this Agreement or applicable Work Order for any reason, you will provide us with access, during normal business hours, to your premises or any other locations at which any Define Edge Equipment is located to enable us to remove and take possession of such Define Edge Equipment. If you fail or refuse to grant Define Edge access as described herein, or if any of the Define Edge Equipment is missing, broken or damaged (normal wear and tear excepted) or any of Define Edge-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items.
- Deletion of Data. Unless otherwise expressly stated in a Work Order, we will have no obligation to store or maintain any of your data in our possession or control beyond thirty (30) days following the termination of this Agreement (the “Storage Period”). We are not responsible for any losses, costs, fees, or expenses incurred by you that arise from, or are related to, our deletion of your data on and after the expiration of the Storage Period.
- Transition Services. Upon the termination of this Agreement and at your written request prior to the expiration of the Storage Period, we may, but are not obligated to, provide assistance to transition you away from our Services, including but not limited to the retrieval and provision of passwords, log files, administrative server information, or conversion of data (collectively, the “Transition Services”). A request for Transition Services will not be accepted until all amounts due and owing to us under any Work Order and this Agreement are paid to us in full. Transition Services will be billed at our then-current hourly rates for such services, with up-front amounts to be paid to us as we may require. We do not warrant or guarantee any (i) requests for Transition Services received or accepted after the expiration of the Storage Period, or (ii) that the Transition Services will perform as expected due to the variability of the requirements of other service providers.

ARBITRATION

Any controversy, claim or dispute, of any nature, arising out of, in connection with, or relating to this Agreement, any Work Order or the breach thereof, (including the scope or meaning of this arbitration clause) shall be determined and decided by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Each of the Parties hereby waives any right it may have to have any controversy, claim, or dispute under this Agreement or any Work Order, adjudicated in a court of law, or by a judge or jury, except exclusively for the enforcement of the arbitrator’s decision.
The arbitration shall be conducted before a single arbitrator, as mutually selected by the Parties or, if there is no AAA-certified arbitrator available within a twenty (20) mile radius of our office, then by any arbitration forum as determined by us. In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property, and information technology transactions. If the Parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in person in our office or such other or different venue to which the Parties and the arbitrator all agree or, by remote online access via a commercially available, secure conference provider, if the Parties and the arbitrator all agree. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the Parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the Parties; provided, however, that the Party prevailing in the arbitration shall be entitled to an award of its attorneys’ fees and costs.

MISCELLANEOUS

Independent Contractor. Define Edge is an independent contractor, and is not your employer, employee, partner, or affiliate.
Subcontractors. Generally, we do not utilize subcontractors to perform onsite services; however, we reserve the right, in our sole discretion, to subcontract some or all portions of Services provided under this Agreement and/or pursuant to a Work Order.
Business Day. If a time period set forth in this Agreement expires on a day other than a business day in Ocean County, New Jersey, such period will be extended to and through the next succeeding business day in Ocean County, New Jersey.
Notices; Writing Requirement. Where notice is required to be provided to a Party under this Agreement, such notice may be sent by U.S. certified mail, return receipt requested, or by overnight courier, fax, or email. Notice will be deemed delivered three (3) business days after being deposited in the United States Mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notwithstanding the foregoing, any notice from you to Define Edge regarding (x) any alleged breach of this Agreement by Define Edge, or (y) any request for indemnification, or (z) any notice of termination of this Agreement or any Work Order, must be delivered to Define Edge by U.S. overnight courier, unless such requirement is expressly and specifically waived by Define Edge. All electronic documents and communications between the Parties, including email, will satisfy any other “writing” requirement under this Agreement.
Assignments. Neither this Agreement nor any Work Order may be assigned or transferred by a Party without the prior written consent of the other Party. This Agreement will be binding upon and inure to the benefit of the Parties, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred.
Severability. If any provision hereof or any Work Order is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any Work Order will be valid and enforceable to the fullest extent permitted by applicable law.
No Waiver. The failure of either Party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
Entire Agreement. This Agreement, together with any and all Work Orders, sets forth the entire understanding of the Parties and supersedes any and all prior agreements, arrangements or understandings related to the Services; provided, however, any payment obligations that you have or may have incurred under any prior superseded agreement are not nullified by this Agreement and remain in full force and effect. No representation, promise, inducement, or statement of intention has been made by either Party which is not embodied herein. We will not be bound by any of our agents’ or employees’ representations, promises or inducements if they are not explicitly set forth in this Agreement or any Work Order. Other than with respect to a duly executed and delivered Business Associate Agreement, any document that is not expressly and specifically incorporated into this Agreement or Work Order will act only to provide illustrations or descriptions of Services to be provided and will not modify this Agreement or provide binding contractual language between the Parties.
Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between you and us will be used to modify, interpret, or supplement in any manner the terms of this Agreement.
Other Terms; Battle of the Forms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless such terms or conditions are incorporated into a duly executed SOW or accepted by us in a SOC, or unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
Survival The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive.
Governing Law; Venue. This Agreement and any Work Order will be governed by, and construed according to, the laws of the state of New Jersey except to the extent that choice of law provisions would require the application of any other state’s law. You hereby irrevocably consent to the exclusive jurisdiction and venue of Ocean County, New Jersey, for any and all claims and causes of action arising from or related to this Agreement.
No Third-Party Beneficiaries. This Agreement solely for our and your benefit. No third party has the right to rely upon or enforce this Agreement or any part of this Agreement.
Time Limitations to Actions. You agree that, unless otherwise prohibited by law, any action for any matter arising out of this Agreement or any Work Order (except for issues of nonpayment by Client) must be commenced within one (1) year after the cause of action accrues or the action is forever barred.