V02-03/2019 Effective March 1, 2019
This Master Services Agreement (this “Agreement”), is a binding contract and applies to the Customer’s purchase of Product or Services from Fuse Commercial, LLC, doing business as zyedge (“zyedge”), having its principal place of business at 950 Herndon Parkway, Suite 400, Herndon, VA 20170. This Agreement becomes effective when Customer executes an Order with zyedge and zyedge accepts the Order.
NOW THEREFORE, for good and valuable consideration, the parties agree as follows:
1. zyedge hereby agrees to provide, as set forth in such Statements of Work may be executed from time to time by the parties (each an “SOW”), the professional and other services (“Professional Services”), managed hosting services, cloud hosting services or other hosting services (collectively “Managed Services”, and together with the Professional Services, collectively the “Services”), and to provide, as set forth in such orders as may be executed from time to time by the parties (each a “Order” and together with SOW, collectively, the “Order Documents”) the hardware and/or firmware (“Hardware”). The specifics of the Hardware, Services and any applicable period of performance, pricing, and other terms agreed upon by the parties relating thereto shall be set forth in the Order Documents. In the event of a conflict between Order Documents and this Agreement, the Order Documents shall control. Any applicable period of performance shall be set forth in the Order Documents.
2. PAYMENT. The Customer will pay zyedge the charges and fees in U.S. currency as set forth in the Order Documents. zyedge will submit a paper or electronic invoice for payment to Customer, and unless otherwise stated in the Order Documents, the Customer shall pay each invoice within thirty (30) days from invoice date. The Customer shall pay applicable taxes and fees assessed or imposed upon the amounts payable to zyedge, but not limited to any sales, use, excise, value-added, or comparable taxes, but excluding taxes for which Customer has provided a valid resale or exemption certificate. Any sum not paid by Customer when due shall bear interest until paid at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less. Customer shall also reimburse zyedge for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition, zyedge may suspend its performance under this Agreement without breach hereof or penalty if Customer fails to make timely payment to zyedge.
3. TERM AND TERMINATION.
(a) This Agreement shall be effective on the above date and shall continue for a period of one (1) year. Thereafter, this Agreement will automatically renew for successive one-year periods unless either party provides the other party with written notice of nonrenewal at least thirty (30) calendar days prior to the end of the then-current term thereby terminating this Agreement.
(b) This Agreement and any Order Documents may be also terminated as follows:
(i) by either party upon a material breach by the other party, provided the non-breaching party notifies the breaching party in writing specifying each breach and the breaching party fails to cure said breach within thirty (30) calendar days of receipt of notice with a detailed description of such breach;
(ii) by zyedge immediately, upon written notice to Customer in the event that the Customer ceases to carry on business as a going concern, either party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets; and
(iii) by zyedge immediately, upon written notice to Customer in the event of Customer’s breach of Sections 2, 4, 5 and 7.
(c) Upon termination of this Agreement and/or any Order Documents for any reason, Customer shall pay zyedge for all amounts payable to zyedge up to the effective date of termination within thirty (30) days. Any and all rights or obligations of any party in this Agreement which, by its nature, should survive termination of this Agreement, will survive any such termination of this Agreement.
4. CONFIDENTIALITY. From time to time during the term of this Agreement, either Party(as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products, services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party before being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section caused by any of its officers, employees, independent contractors, and/or other agents. On termination of the Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
(a) The Customer agrees and covenants not to directly or indirectly solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee or independent contractor of zyedge or its affiliates or induce the termination of employment or other engagement of any such employee or independent contractor during the term of this Agreement and for a period of one (1) year after the termination of this Agreement. This Section will not limit the ability of Customer to hire or contract any person who responds to a generally advertised or posted job opening or who becomes employed by a contract of Customer through no solicitation or interference by the Customer.
(b) During the term of this Agreement and for period of one (1) year after the termination of this Agreement, Customer, either alone or in conjunction with any other individual entity, will refrain from (i) causing or attempting to cause any client or customer of zyedge to terminate or materially reduce its business with zyedge, and (ii) directly or indirectly soliciting business relating to managed network services from any client or customer of zyedge.
6. INTELLECTUAL PROPERTY. Customer acknowledges that it may receive third party software as a result of Services or Hardware provided under this Agreement, and in that event, Customer agrees that it is subject to the applicable third party terms and conditions relating thereto. Neither party will use the name, service marks, trademarks, or Confidential Information of the other party or any of its affiliates for any purpose other than performing under this Agreement without the other party’s written consent.
7. EXPORT. Hardware, including associated technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Hardware, as applicable.
8. LIMITED WARRANTY. zyedge warrants that zyedge’s referred or assigned employees are US Persons, as defined by the ITAR (22 CFR 120.15) and that the Services performed by its employees under this Agreement will be performed in a workmanlike manner. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 8 AND SECTION 19, ZYEDGE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES OR HARDWARE AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
9. DISPUTES. Any dispute arising under or in connection with this Agreement with respect to the rights, duties, or obligations of the parties shall be submitted in writing for resolution to ascending levels of management of the respective Parties according to this Section. If a dispute cannot be resolved to both parties’ mutual satisfaction, after good faith negotiations, within ninety (90) days from the date the written claim is received by the other party, or such additional time as the parties agree upon in writing, either party may bring a suit, action or proceeding. The parties hereby agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought exclusively in the state courts located in Fairfax County, Virginia or the U.S. District Court for the Eastern District of Virginia, Alexandria Division, as applicable. Each party hereby irrevocably consents to the jurisdiction of such courts and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity, without the necessity of posting bond or other security.
10. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE AGGREGATE LIABILITY OF ZYEDGE AND ITS INDEPENDENT CONTRACTORS AND AGENTS FOR CLAIMS RELATING TO AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF MONEY ACTUALLY PAID BY CUSTOMER TO ZYEDGE UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. CUSTOMER AGREES THAT ANY CAUSE OF ACTION THAT CUSTOMER MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
12. INDEPENDENT CONTRACTOR. The parties are independent contractors and nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties.
13. GOVERNING LAW. This Agreement and the Order Documents shall be governed, construed, and interpreted according to the law of the Commonwealth of Virginia, without regard to its conflict of laws principals.
14. CHANGES. This Agreement and any Order Documents may only be amended or modified by a written instrument signed by each party’s representatives or authorized designees and may not be modified orally.
15. ASSIGNMENT. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party without the prior written consent of the other party; provided, however, that a party may, on written notice to the other party and without the consent of the other party (a) assign this Agreement to any entity that acquires all or substantially all of such party’s assets or equity, or (b) assign this Agreement to any affiliate that is owned or controlled by such party.
16. NOTICES. All notices and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand; (b) when received by the addressee if sent by a nationally recognized overnight courier (e.g. FedEx); or (c) on the date sent by email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Such communications must be sent to the respective parties at the addresses set forth on the signature page hereto (or at such other address as specified by a party in accordance with this Section).
17. FORCE MAJEURE. Neither party will be responsible for failure to comply or for delay in performance of this Agreement, if the failure is directly or indirectly caused by events beyond the parties’ reasonable control, including, but not limited to, natural disasters, actions or decrees by governmental bodies, or acts of God.
18. SEVERABILITY AND NO WAIVER. If any provision in this Agreement is or becomes void or unenforceable by force or operation of law, or is deemed invalid, the void, unenforceable or invalid portion shall be severable, and the remaining terms and conditions shall remain in full force and effect. A party’s failure at any time to enforce any provision of this Agreement shall not constitute a waiver of the provision or prejudice a party’s right to enforce that provision at any subsequent time.
19. EXECUTION. The parties warrant that (a) such party is duly organized and existing under the laws of its jurisdiction of formation, (b) the person executing the Order on behalf of such party is duly authorized to execute and deliver the Order on behalf of such party, (c) by so executing this Agreement, such party is formally bound to the provisions of this Agreement and the Order Documents, and (d) the entering into this Agreement and the Order does not violate any provision of any other agreement to which said party is bound.
20. COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
21. TITLE & ACCEPTANCE. Unless stated otherwise in the Order Documents, title to Hardware shall pass to Customer, and acceptance of the Hardware shall occur, upon delivery of the Hardware to the carrier F.O.B. Origin (as “F.O.B. the place of shipment” is described in the Uniform Commercial Code Section 2-319).
22. CUSTOMERS PROPERTY. All network equipment, storage equipment, video teleconferencing equipment, monitors, keyboards, desktops, phones, firewall hardware, and any other property supplied or paid for by Customer shall be and remain the property of Customer and shall be returned to Customer upon Customer’s request. All such items shall be used only in the performance of work under the Order unless Customer consents otherwise in writing. zyedge shall maintain property records for any and all property furnished by Customer. zyedge shall (i) within five (5) working days, report to Customer the loss, theft, damage, destruction of any such property, or if any such property is found to be malfunctioning or otherwise unsuitable for use and (ii) report all pertinent facts as soon as they become known. zyedge agrees to return Customer’s property in as good condition as when received, except for reasonable wear and tear due to the utilization of the property.
23. PRECEDENCE. In the event of any inconsistency or conflict between or among the provisions of this Agreement and the Order Documents, such inconsistency or conflict shall be resolved by the following descending order of preference: 1. zyedge Purchase Order, Sales Order, or Hardware Quotation; 2. zyedge Statement of Work or Documents incorporated by reference on the Order which apply to the Order; 3. This Master Service Agreement.
24. ENTIRE AGREEMENT. This Agreement, together with the Order Documents constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, proposals, representations, and warranties, both written and oral, with respect to such subject matter