Between EdgeUno Inc and the Customer who is individualized by filling out this electronic form, the following service provision contract has been agreed:
1. Definitions.
(a) “ACH” is as defined in Section 3; (b) “Affiliate” means an entity controlling, controlled by, or under common control with, directly or indirectly, a Party. “Control” for purposes of this definition refers to having or being subject to a greater than a fifty percent (50%) ownership interest in or the right to direct the management of the entity or Party; (c) “Agreement” is as defined in the preamble; (d) “Carrier” is as defined in the preamble; (e) “Carrier Equipment” is as defined in Section 6(b); (f) “Carrier System” means a communications network, including a submarine cable system, that will connect cable landing stations worldwide, with related backhaul facilities and POPs; (g) “Charges” means, in respect of particular Service(s) ordered, the fees and charges applicable to such Service(s), calculated in accordance with the Order relating to such Services; (h) “Claim” means all third-party claims, action, lawsuits, demands, proceedings, damages, costs and liabilities of any kind; (i) “Confidential Information” is as defined in Section 9; (j) “Customer” is as defined in the preamble; (k) “Default” means: (1) in the case of a failure to pay any amount when due under this MSA or any Order, if Customer fails to pay such amount within ten (10) business days following notice specifying such failure; or (2) if Customer is in material breach of Section 5 this Agreement; or (3) in the case of any other material breach of this MSA or an Order by either Party, a Party fails to cure such breach within thirty (30) days after notice specifying such breach; (l) “Effective Date” is as defined in the preamble; (m) “End User(s)” mean Customer’s end-users or customers that use a Service; (n) “Financial Assignment” means a security interest of any kind (including a collateral assignment, an assignment by way of security, a charge, a pledge, a collateral or security trust or other similar transfer of rights) relating to the Carrier System or any right of use therein;(o) “Financing Entities” means any person or entity to whom Carrier has granted any Lien in the Carrier System. “Lien” for purposes of this definition refers to any mortgage, debenture, hypothecation, pledge, lien, security interest, covenant, condition, right of re-entry, lease, license, option, claim, trust or other encumbrance or charge of whatever kind or nature, regardless of form and whether consensual or arising by law, and whether or not registered or registerable, but excluding mechanic’s liens, supplier’s liens, and other statutory liens; (p) “FOC” is as defined in Section 2(a); (q) “Force Majeure Event” means an event (other than a failure to comply with payment obligations) caused by any of the following conditions: act of God; fire; flood; labor strike; sabotage; fiber cut; material shortages or unavailability or other delay in delivery not resulting from the responsible Party’s failure to timely place orders therefor; power blackouts; lack of or delay in transportation; government codes, ordinances, laws, rules, regulations, permits or restrictions; failure of a governmental entity or other party to grant or recognize a right of way, war or civil disorder; or any other cause beyond the reasonable control of such Party; (r) “Intellectual Property Rights” means all intellectual property rights throughout the world, whether existing under statute or at common law or in equity, now or hereafter in force or recognized, including (i) copyrights, trade secrets, trademarks and service marks, patents, inventions, designs, logos and trade dress, “moral rights,“ mask works, publicity rights, and privacy rights; and (ii) any application or right to apply for any of the rights referred to in subsection (i) above, and all renewals, extensions and restorations; (s) “MRC” or “Monthly Recurring Charge” means monthly recurring charge; (t) “NRC” means non-recurring charge; (u) “Order” means a document used to order Services; (v) “Party” means each of Carrier and Customer, and “Parties” means Carrier and Customer collectively; (w) “Planned Maintenance” means network configuration, design, regrooming, rearrangement, upgrade, enhancements, maintenance or consolidation of channels or circuits and all related functions, which Carrier is able to plan and schedule in advance; (x) “POP” means a data center or colocation facility that constitutes an interconnection point on the Carrier System for Carrier, Customer and/or third parties; (y) “Premises” is as defined in Section 6(b); (z) “Regulatory Activity” means any regulation or ruling (including modifications thereto) by any governmental or quasi-governmental authority, regulatory agency, or court of competent jurisdiction; (aa) “Services” means the Carrier services provisioned pursuant to this MSA as specifically ordered from Customer from time-to-time using an Order; (bb) “Service Activation Date” is as defined in Section 2(b); (cc) “Service Term” shall mean the term, with respect to each Service, which shall begin on the Service Activation Date and continue thereafter for the period of months specified in the applicable Order and as may be renewed or extended thereafter; (dd) “Subcontractor” means either a third party to whom Carrier delegates one or more of its obligations under this Agreement or an Affiliate of a Party that is not contracting directly with the other Party; (ee) “Taxes” means any and all present and future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto; (ff) “Term” is as defined in Section 8; (gg) “Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
2. Service Order Procedure.
(a) To order a Service, Customer must execute an Order provided by Carrier. Customer may order additional Services from time to time by executing additional Orders. Additional orders that exceed the contract capacity or are not covered by the contract will be charged seperately. Upon receipt of an executed Order, Carrier will email an order acknowledgment letter to Customer. Within five (5) business days following the issuance of the Order acknowledgement letter, Carrier will either: (1) accept the Order by emailing a Firm Order Commitment (“FOC”) date to Customer; (2) request clarification of information on the Order; or (3) reject the Order. Carrier shall be under no obligation to accept an Order.
(b) After installing a Service, Carrier will email an Order completion notification to Customer. If Customer does not notify Carrier in writing within five (5) business days following receipt of the Order completion notification that the Services do not conform to Carrier’s specifications (with evidence of such non-conformance included in the notice), or if Carrier has not performed the acceptance testing by the FOC date due to Customer’s failure to satisfy any of its obligations under this MSA relating to installation, or if Customer begins using the Service for any purpose other than testing, the Service shall be deemed accepted, and such date shall constitute the “Service Activation Date”.
(c) Each Service Term shall commence on the Service Activation Date and shall continue for the period of months specified in the applicable Order, and thereafter shall continue for twelve (12) months unless and until terminated by either party upon ninety (90) days’ prior notice to the other party. In case both parties agree in writing in the Service Order to a month-to-month renewal after the Initial Service Term, the service may be subject to a price increase of 30% starting on the first month of the month-to-month renewal term. In any case, a 90-day previous notice is required for termination of a Service Order.
(d) In case of conflict between the provisions of the relevant Service Order and this MSA, the Service Order shall prevail. For all other matters in which the Service Order is silent or not in conflict with the MSA, this MSA will be enforced and will govern the Service Order.
3. Billing and Payment.
Customer shall pay the Charges for the Services without deduction, setoff or delay. Beginning on the Service Activation Date, Carrier will invoice Customer monthly in advance, and all amounts shall be due and payable no later than thirty (30) calendar days following the invoice date or within the period stipulated in the Order. Pricing on each Order includes all applicable discounts. A Monthly Recurring Charge for any period that is less than a full month shall be a prorated portion of the Monthly Recurring Charge based on the actual number of days in such month.
(a) Past due balances are subject to a two percent (2%) fee plus an interest charge of one point five percent (1.5%) per month or the maximum lawful rate allowable under applicable state law, calculated from the first day after the due date of the invoice until the date of payment and Carrier may suspend the services for late payment after notificating the Customer in writting.
In case of a dispute in the charges invoiced, Customer shall pay the part of the invoice not in dispute and communicate EdgeUno in writing about the charges in dispute, indicating the nature and reason of the dispute and evidence to support the claim. All claims regarding disputed charges must be submitted by Customer within sixty (60) days following receipt of the invoice on which the disputed charges appear. All claims not submitted to EdgeUno within such time frame will be deemed waived. In case the dispute is determined to be unfounded, unwarranted or that the charges were invoiced correctly, Customer will pay such charges within ten (10) days of the notice of dispute resolution.
In any case, EdgeUno may charge from Customer all costs, including attorney’s fees, incurred by EdgeUno to collect such past due payments. Automatic compensation or deductions of any kind are not allowed.
(b) In the event that additional exceeding capacity is delivered to the Customer willfully or accidentally, and this capacity is utilized by the Customer, the Customer agrees to be invoiced and pay for the herein capacity if no objection is documented by the Customer within the initial ninety days.
(c) At any time during the Term, if Customer has failed to make two (2) payments when due in accordance with this Section 3, Carrier may require Customer to remit all payments by electronic funds transfer via Automated Clearinghouse (“ACH”) debits initiated by Carrier. Customer agrees to execute from time to time all appropriate documentation reasonably requested by Carrier to give effect to this Section.
(d) If Customer is purchasing Carrier’s burstable Service, Customer will have a minimum bandwidth commitment assigned for a given port (the “Bandwidth Commitment”). The Bandwidth Commitment is agreed upon in the Order and is the minimum amount of bandwidth that will be charged to Customer each month at the base Service price, even if not fully used by Customer during a given month. Customer may burst up to the maximum bandwidth that can be carried on a given port, e.g. 1,000 Mbps for a Gig-Ethernet port, except otherwise stipulated in the Order Form. If Customer exceeds the Bandwidth Commitment on any burstable port in any given calendar month, Customer agrees to pay the additional per Gig charge for excess bandwidth usage over the Bandwidth Commitment as indicated in the Order Form. Such excess bandwidth usage is calculated by Carrier as the difference between Total Bandwidth Usage and Bandwidth Commitment, where Total Bandwidth Usage is determined by collecting bandwidth usage samples every 5 minutes throughout the month for each port and determining the 95th percentile of usage as indicated in the Order Form. Only one sample is captured for each 5 minute period, even though two samples are collected - one for inbound utilization and one for outbound utilization. The higher of the two samples is retained. For partial months, the total number of samples for the calendar month is used; for samples where there is no usage, 0 is the recognized value. For example, in a 30-day billing period, 8640 samples are collected (12 samples/hour x 24 hours/day x 30 days) and listed from highest to lowest. The highest 5% or 432 samples are discarded (representing the top 5% of usage levels). The highest remaining sample (sample 433 in this example) is used to determine Total Bandwidth Usage.
(e) Annual Price Adjustment. Upon conclusion of the first twelve (12) months of service, EdgeUno shall automatically implement a 5% increase to the MRC. This automatic increase will be applied starting on the first day after the initial 12 months of service and will take place every 12 months thereafter.
(f) Customer accepts that the terms and conditions on the price and form of payment of the service can be changed at any time, for which only the publication of the new conditions on www.edgeuno.com will suffice.
4 Taxes.
(a) All stated charges herein do not include, and Customer agrees to pay, any and all applicable Taxes (other than taxes on Carrier’s net income), including without limitation, all sales, use, value-added, excise, franchise, property, commercial, gross receipts, license, privilege and other taxes, levies, duties, fees, and tax-related surcharges (including the Universal Service Fund surcharge or similar international jurisdiction surcharge) and those charges resulting from Regulatory Activity, whether charged to or against Carrier or Customer with respect to the sale or use of the Services or the facilities provided by Carrier. If the Customer shall be required by applicable law to deduct or withhold any taxes from or in respect of any payment under this agreement, the payment shall be increased as necessary, so that after making all deductions or withholdings, the amount received by the Carrier is that same that would be received if no deduction or withholding was required under law (gross-up). If applicable, Customer shall provide Carrier with appropriate tax exemption certificates demonstrating that it maintains tax-exempt status from collection of all or part of these types of charges.
(b) At Carrier’s request, Customer will take reasonable steps to minimize Taxes in accordance with all relevant laws, including specifically accepting Orders between Carrier’s Affiliates and Customer’s Affiliates such that, as appropriate for a particular geographic location, invoices are issued by Carrier’s local entity to Customer’s local entity.
(c) In the event that any change in law or change in the interpretation of law results in the imposition of any additional cost or expense upon Carrier in connection with providing the Services in order to comply with such law (including without limitation any requirement that Carrier contribute to any funds administered by or on behalf of any governmental authority), the Parties will negotiate appropriate price adjustments and amendments to this Agreement. If the Parties cannot reach an agreement within 30 (thirty) calendar days following Carrier’s notice regarding renegotiation, then Carrier may, on a prospective basis, following such thirty-day period, pass any increased costs to Customer.
5. Customer’s Use of the Services.
(a) Customer represents, warrants and covenants that during the Term and/or each Service Term (i) it shall use each Service in compliance with, and subject to, all applicable government codes, ordinances, laws, rules and regulations and will require its customers to do the same; (ii) it shall secure, prior to the Service Activation Date with respect to each Service, and maintain in full force and effect during the applicable Service Term, any and all necessary approvals, consents, rights of way, permits, franchises, licenses or similar approvals from all governmental and other authorities which are necessary or required to be obtained by the Customer; (iii) it shall not use its systems or any Service in a way that interferes in any way with, or adversely affects, the use of the Carrier System or any other party using the Carrier System or any communications and/or data services thereon, and it shall not physically access in any manner the Carrier System or any components thereof;
(b) it is certified to the extent required by the proper regulatory agencies to provide interstate, international and other services in those jurisdictions where such services are to be provided by the Customer; use of the Services.
(c) the content it or its customers make available through the Service will not include any, (i) content that is obscene, defamatory, constitutes an illegal threat, (ii) constitutes a defamation or libel of Carrier or any third party, or (iii) result in any liability of Carrier to any third party.
(d) Customer is solely responsible for obtaining and maintaining all licenses, approvals, and regulatory authority requirements for its operations and the use of the Services.
(e) Carrier shall not be liable for the misuse, negligence, fraudulent, use contrary to specifications and/or unauthorized use that it or the End User gives to the services or equipment, whether through its officials or employees or by any third party, that may have direct or indirect access. Customer shall adopt the necessary measures to prevent such actions by agreeing to hold Carrier safe and harmless from any claim that may be derived from such situations.
6. Customer Premises Equipment and Interconnection.
(a) Carrier will provide Service between the demarcation points listed on the Order, or if it does not so specify, then between Carrier’s fiber distribution panels at the specified locations. Customer is responsible for all costs incurred on Customer’s side of the demarcation points, including but not limited to, costs for customer equipment, interconnections, cross connections, hand-offs, installation charges, and any costs incurred at Customer’s request.
(b) If Carrier installs fiber optic cable termination or related equipment (“Carrier Equipment”) in Customer’s owned or controlled premises (“Premises”), Carrier will notify Customer and provide Customer applicable environmental specifications, power, HVAC, and fire suppression requirements. Customer shall comply with these specifications, keep the Carrier Equipment secure, and supply properly sized and protected power, HVAC and fire suppression systems. Customer shall be responsible before Carrier for its acts or omissions that result in damage to the Carrier Equipment and shall pay Carrier the replacement cost if it is lost, damaged or destroyed. Customer shall notify Carrier in advance of any repairs or maintenance to the Premises that may affect the Carrier Equipment and shall not interfere with its operation. Carrier Equipment will remain the personal property of Carrier, notwithstanding the fact that it may be affixed or attached to the Premises, and it will belong to and be removable by Carrier during the Term of this Agreement or thereafter.
(c) Customer is responsible for obtaining and maintaining access rights to Premises and the building where the Premises are located during the applicable Service Term so that Carrier may install, repair, maintain, inspect, operate and remove Service components. If possible, Customer shall provide Carrier personnel access to Service components for maintenance activities twenty-four (24) hours per day, seven (7) days per week, on two (2) hours’ notice. If this access is not possible, Customer must provide commercially reasonable access, and any interruption in Service due to Carrier’s inability to gain access to Carrier Equipment will be excluded from calculations of service credits.
(d) Customer is responsible for obtaining all legal, regulatory or governmental licenses e permits for Customer premises and shall comply, at Customer’s expenses, with all the technical requirements specified by Carrier in this Agreement or in the respective Service Orders whenever applicable.
7. Maintenance, Repair and Upgrades.
From and after each Service Activation Date, the relevant Service shall be provided in good working order. In the event Carrier determines that it is necessary to interrupt a Service for the performance of Planned Maintenance, Carrier will use commercially reasonable efforts to notify the Customer at least seven (7) days prior to such interruption. Carrier shall have full and complete control of the configuration, design, regrooming, rearrangement or consolidation of channels or circuits and any related functions of the Carrier System. Carrier also reserves the right, from time to time, to upgrade the capacity of and make enhancements to, the Carrier System. If Carrier performs Planned Maintenance during business days, it shall do so between 0:00 and 6:00 local time. Carrier shall attempt to minimize interruption to, or impairment of, a Service arising from the implementation of any such enhancement or upgrade. In no event shall interruption for enhancements, upgrades or Planned Maintenance constitute a failure of performance by Carrier of a Service in any manner.
8. Term; Termination and Suspension of Services.
(a) This Agreement shall take effect upon the Effective Date and shall remain in effect until the expiration of the last effective Service Term, unless earlier terminated as provided in the Agreement (the “Term”).
(b) Either Party may terminate a Service for Default by the other Party. In the event of an uncured Default by Customer, within 15 (fifteen) days from the written notification sent by Carrier, Carrier shall have the right to any or all of the following remedies: (1) suspend Service(s) to Customer; (2) cease accepting or processing Orders; and (3) terminate this Agreement and any applicable Order. If Carrier terminates this MSA due to an uncured Default by Customer, Customer shall immediately pay to Carrier the early termination charge as described below. If the Service provided under any Order has been suspended or terminated by Carrier for Default and thereafter Carrier agrees to restore such Service, Customer shall pay all past due charges, without prejudice to any other legal means or rights Carrier may have to recover any losses and damages caused by the Customer.
(c) If Customer terminates a Service or an Order before the expiration of its applicable Service Term for any reason other than a Default by Carrier, Customer shall incur an early termination charge as its sole liability for an early termination. Notice of early termination must be delivered to Carrier in writing and will be effective ninety (90) days after receipt. The early termination charge shall be an amount equal to: (1) 100% of the MRC for each terminated Service multiplied by the number of months remaining in the Service Term, plus any third party termination costs, and other costs incurred by Carrier with the construction of installations, purchase of assets and other investments made for the provision of services; plus (2) all supplemental charges and NRC charges (including all nonrecurring charges that were waived by Carrier at the time that Customer entered into the Service Order Form), if not already paid; plus (3) in the case of collocation space, the costs incurred by Carrier in returning the collocation space to a condition suitable for use by other parties. The Parties agree that if a Service is terminated, the actual anticipated loss that Carrier would likely suffer would be difficult or impossible to determine and the charges set forth herein constitute a reasonable estimate of the anticipated loss from such termination and do not constitute a penalty.
(d) Either Party may terminate this Agreement, including all attachments, exhibits and Orders, without liability if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of any proceeding related to its liquidation, insolvency or for the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of its creditors; (iv) enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations.
(e) Carrier may temporarily suspend or terminate an Order without liability if Carrier reasonably determines that Customer or an End User has (i) failed to comply with any foreign, federal, state or local law or regulation related to the Service; (ii) has committed any illegal act relating to the Service, including but not limited to, use of the Service(s) for illegal purposes; provided that the Carrier lift such suspension promptly following Customer’s cure of its failure to comply; (iii) made improper use of the service which violates the provisions of this MSA or its technical specifications; (iv) committed any breach of the security and privacy policies of the network in accordance with the policies established by Carrier for the correct provision of service; (v) for complying with an order from Judiciary or Regulatory authorities.
Carrier may temporarily suspend or terminate this MSA or an Order without liability if such suspension or termination is necessary to protect the technical integrity of the Carrier System due to actions by Customer or an End User. Any termination pursuant to the prior sentence shall constitute a Default by Customer without notice to Customer. Parties shall, endeavor their best efforts to provide an opportunity to cure the action giving rise to this suspension or termination right.
9. Confidentiality.
(a) Commencing on the Effective Date and continuing for a period of one (1) year following the expiration or other termination of this MSA, each Party shall protect as confidential and not disclose to any third party any Confidential Information received from the disclosing Party or otherwise discovered by the receiving Party during the Term of this MSA.
(b) For the purpose of this Agreement “Confidential Information” means all information and/or documents regarding one party’s business, shareholders, partnerships and affiliates disclosed to the other party, other party’s employees, their affiliates or third parties contracted by the party itself, its employees, affiliates or third parties contracted verbally or in writing, including, but not limited to, the pricing and terms of this MSA or any Order. Information about customers, costs, profit, sales, services, products, product development, payment information, account information, bank information, any other financial information, personnel, working and service information, pricing, salary policy and levels, operation methods, technology, ideas, inventions, know-hows, brands, logos, patents, software, resource codes, intellectual and industrial property rights, confidential business information, technical processes, formulas, plans, designs, licenses and permits, drawings, arrangements, models, projections, any written or verbal information and/or document regarding business plans are within the information stated.
(c) Each party accepts and undertakes to (i) keep the other party’s confidential information cautiously as well as its own confidential information; (ii) keep confidential the information that has been disclosed to it; (iii) not to disclose Confidential Information to any third party in any condition excluding the conditions this contract allows explicitly; (iv) use the information only for the purposes of the commercial relationship and will not directly or indirectly use the related information for any purposes which are not related with commercial relationship of the parties; (v) return or destroy within reasonable time, at discretion and request of the disclosing Party the confidential information disclosed during the term of this Agreement.
(d) Notwithstanding, Confidential Information, shall not include information that the Recipient can demonstrate, through substantial and documented evidence that, (i) is now or subsequently becomes available in the public domain through no fault or breach of the Recipient; (ii) was rightfully in the Recipient's possession prior to the disclosure of the Confidential Information; (iii) was rightfully obtained from a third party, who has the right to transfer or disclose it, without default or breach of an obligation of confidentiality or nondisclosure; (iv) if such information is developed by the Receiving Party independent of any disclosure of such information by the Disclosing Party and without any use of the Confidential Information of the Disclosing Party, as demonstrated by written records created at the time of such independent development.
(e) Neither Party will use or disclose Confidential Information from the disclosing Party without its prior written consent, except where: (i) the disclosure is required by applicable law or regulation (including securities laws regarding public disclosure of business information) or by an order of a court or other governmental body having jurisdiction after taking steps to maintain its confidentiality where practicable; (ii) it is reasonably necessary to be disclosed to that Party’s, or its Affiliates’, employees, officers, directors, attorneys, accountants and other advisors; or (iii) it is necessary for a Party to exercise its rights and perform its obligations under this Agreement. In any case, the disclosing Party shall ensure that disclosure shall not be broader than necessary, and that the recipient agrees prior to receipt to keep the information confidential to the same extent as under this Agreement (except that such agreement need not be obtained for disclosures to a court, regulator or arbitrator).
(f) Parties agree that technical information related to the services under this MSA and which are meant for direct or indirect benefit of the Customer can be disclosed to Carrier's Agents and Providers to ensure the correct provision of services, operation, maintenance and eventual upgrades required by Customer.
(g) If one of the party learns about unauthorized disclosure because of itself, its shareholders, employees, affiliates or third parties contracted, it shall notify the other party about this unauthorized disclosure immediately in writing. It shall also take necessary precautions to minimize the other party’s loss occurring because of this disclosure. The party which has loss can sue the responsible party as soon as it learns about the disclosure taking the expenses from the party which has disclosed information unauthorized. It can also request all kinds of loss and damage from the party which has disclosed information unauthorized. If an unauthorized disclosure occurs, the disclosing party can request for precautions immediately in addition to its legal rights, apply for temporary precaution methods and/or related proper just methods. The party which has disclosed information unauthorized accepts, declares and undertakes to cover all loss of the other party occurring because of the disclosure in cash in lump sum in first request.
(h) The party whom the information is disclosed is to return all the confidential information disclosed or destroy them immediately upon the written request of the disclosing party. This liability does not apply for the documents which need to be maintained legally. All confidential information is in the ownership of disclosing party and it shall stay in the ownership of the disclosing party. Any disclosure within the scope or framework of the contract does not grant any intellectual property right (with license or with other means, tacit or openly) or associated right to the disclosed party. Rights including user license, sales, copy or development regarding Confidential Information are not given.
(i) If the elements such as software/hardware etc. in the systems in which services are provided include intellectual property rights of third parties (producer / main license companies) then all information regarding these are considered Confidential Information and they are subject to disclosure restriction. In addition, all these products and/or services are under protection of intellectual property laws. For the stated reasons, the buyers shall comply with the regulation provisions especially international contracts in effect.
10. Representations and Warranties; Disclaimer of Warranties; Limitation of Liability.
(a) Each Party represents and warrants to the other that: (i) it has full right and authority to enter into the Agreement and that by entering into the Agreement, it is not in violation of its charter or bylaws, or any law, regulation or agreement by which it is bound or to which it is subject; (ii) it complies with all the labor legislation applicable; (iii) its execution, delivery and performance of the Agreement has been duly authorized by all requisite corporate action; (iv) that the persons signing the Agreement on its behalf are authorized to do so; (v) it is a business entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation; and (vi) there are no actions, suits or proceedings pending or threatened against it before any court or administrative agency that would materially impair its performance under the Agreement.
(b) CARRIER MAKES NO EXPRESS OR IMPLIED WARRANTY AS TO ANY SERVICE PROVISIONED HEREUNDER. CUSTOMER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND PERFORMANCE OR INTEROPERABILITY OF THE SERVICE WITH ANY CUSTOMER OR END USER PROVIDED EQUIPMENT.
(c) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, COVER-TYPE OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, LOSS OF USE OR LOST BUSINESS, OR GOODWILL, ARISING IN CONNECTION WITH THIS MSA OR CARRIER’S PROVISIONING OF THE SERVICES INCLUDING BUT NOT LIMITED TO: (I) ANY SERVICE IMPLEMENTATION DELAYS OR FAILURES; OR (II) LOST, DELAYED OR ALTERED MESSAGES OR TRANSMISSIONS, BASED ON ANY THEORY, CAUSE OF ACTION OR CLAIM, INCLUDING TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
(d) THE TOTAL LIABILITY OF CARRIER TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, INCLUDING ATTORNERY'S FEES, SHALL BE LIMITED TO THE LESSER OF DIRECT DAMAGES OR TWELVE MONTHS’ WORTH OF FEES PAID FROM CUSTOMER TO CARRIER FOR THE AFFECTED SERVICE. AS A FURTHER LIMITATION, CARRIER'S MAXIMUM LIABILITY FOR ANY CLAIMS RELATING TO THE LICENSED SPACE AND THE SERVICES OFFERED OR PROVIDED (I) FOR A NON-RECURRING CHARGE ONLY; OR (II) AS SMART HANDS SERVICES, SHALL NOT EXCEED THE AMOUNT OF THE FEE FOR SUCH SERVICES PROVIDED ON THE OCCASION GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. CUSTOMER ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING DISCLAIMER AND LIMITATIONS OF LIABILITY. NEITHER PARTY MAY ASSERT ANY CAUSE OF ACTION AGAINST THE OTHER PARTY UNDER ANY THEORY WHICH ACCRUES MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING ALLEGING SUCH CAUSE OF ACTION. For purposes of this Section 10, all references to Carrier and Customer include their respective officers, directors, shareholders, members, managers, and employees, Affiliates, End Users, agents, lessors and providers of service to Carrier.
(e) The foregoing notwithstanding, the waiver of claims and limitation of liability set forth in this Section 10 shall not apply to termination charges described in Section 8(c), and shall not apply to a claim arising from a breach of the restrictions the use of the Services described in Section 5, and shall not apply to the indemnity obligations of Section 12.
(f) The acquisition of a VPS of any type (SMALL, MEDIUM, LARGE, X-LARGE) includes a trial license valid for 90 (ninety) days of a Windows Server at the Customer’s discretion. Upon the expiration of the trial license, it is the Customer’s responsibility to acquire and activate the corresponding definitive license (Bring Your Own License (BYOL) if it desires to continue using the Server. Edgeuno disclaims any responsibility before Microsoft or any third parties for the Customer’s use of the Windows Server without having acquired the definitive license and reserves the right to terminate the service immediately and without notice to the Customer should Edgeuno receive and/or be involved in any claims for damages or infringement of intellectual property; without prejudice of charging Customer for expenses, losses and damages.
11. Indemnification.
(a) Carrier will defend, indemnify, and hold Customer, its Affiliates, and its and their respective successors, directors, officers, employees, and agents harmless from and against all Claims to the extent that such Claims arise out of or relate to: (i) any breach of any representation or warranty contained in Section 10(a) by Carrier or its Subcontractors; (ii) the negligent or willful acts or omissions of Carrier or its Subcontractors resulting in any bodily injury or death to any person or loss, disappearance or damage to tangible or intangible property; (iii) Carrier’s (or its Subcontractor’s) infringement, misuse or misappropriation of any third party Intellectual Property Rights, provided that such infringement, misuse or misappropriation has not arisen from (1) the unauthorized modification of a Service by Customer or others, (2) Carrier’s modification of a Service in accordance with Customer’s specific instructions, (3) Customer’s combination of Service with other products, services or functionality, or (4) the operation, combination or use of a Service by Customer in breach of the Agreement or any Order; or (iv) Carrier’s (or its Subcontractor’s) failure to comply with applicable laws, rules or regulations.
(b) Customer will defend, indemnify, and hold Carrier, its Affiliates, and their respective successors, directors, officers, employees, and agents harmless from and against all Claims to the extent that the Claims arise out of or relate to: (i) grossly negligent actions or omissions or willful misconduct of Customer, its officers, employees, agents, or contractors which result in claims or demands for damages to property, injury or death to persons; (ii), noncompliance of regulatory acts or any legislation applicable; (iii) any breach of any representation or warranty contained in Section 10(a) by Customer; (iv) Customer’s infringement, misuse or misappropriation of any third-party Intellectual Property Rights.
(c) The indemnified Party will provide the indemnifying Party with reasonably prompt notice of Claims, permit the indemnifying Party through mutually acceptable counsel to answer and defend Claims; and provide the indemnifying Party with reasonable information and assistance to help the indemnifying Party defend Claims at the indemnifying Party’s expense. Any indemnified Party will have the right to employ separate counsel and participate in the defense of any Claim at its own expense.
(d) Neither Party will stipulate, admit, or acknowledge any fault or liability in name of the other Party without the other Party’s prior written consent. The indemnifying Party will not settle any Claim without the other Party’s prior written consent.
(e) Carrier’s sole liability and Customer's sole and exclusive remedy for infringement claims are Carrier's indemnification obligations under this Section.
12. Compliance with Laws.
Carrier and Customer will each, at its own expense, (i) obtain and maintain any approvals, licenses, filings or registrations necessary for the performance of its obligations under the Agreement, and (ii) comply, in all material respects, with all local, state, federal and foreign laws (including, without limitation, applicable anti-corruption laws, financial sanctions or trade embargoes imposed by the United States or any other relevant national or supranational sanctions authority, export laws and regulations) that are applicable to it or the Services.
13. Assignment.
Neither Party may assign, transfer or otherwise dispose of any or all of its rights, title or interest under this Agreement, or an Order or delegate any or all of its obligations thereunder to any person or entity except: (i) at any time during the Term, Parties shall be permitted to assign, transfer or otherwise dispose of, in whole or in part, any or all of its rights, and to delegate any or all of its obligations under this Agreement, to include, without limitation, all or any portion of the Services to any present or future Affiliate of the respective Party upon the delivery of written notice thereof to to the other Party; (ii) a Party may perform a Financing Assignment to one or more Financing Entities for such Party or any of its Affiliates; or (iii) Carrier may assign this Agreement to the purchaser of the Carrier System or to one of its Affiliates.
14. Force Majeure.
Neither party shall be in default under the applicable Agreement if, and to the extent that, any failure or delay in such Party's performance of one or more of its obligations hereunder is caused by a Force Majeure Event, and such Party's performance of such obligation or obligations shall be excused and extended for and during the entire duration of any such Force Majeure Event. Failure to pay any amount due shall not be considered a Force Majeure Event. The Party claiming relief under this Section 15 shall notify the other Party in writing of the existence of the event relied on and the cessation or termination of said event, and the Party claiming relief shall exercise reasonable commercial efforts to minimize the time of any such delay.
15. Personal Data Protection.
(a) During the term of this Agreement regarding any processing of personal data which it receives under this Agreement, each party shall (i) comply with all applicable laws, rules, regulations, regulatory requirements and codes of practice; (ii) not collect, process or use personal data whatsoever of the other Party, its associated companies or its business associates, received under this Agreement beyond the specific purpose of this Agreement; (iii) implement commercially reasonable technical and organizational security procedures and measures to preserve the security and confidentiality of the personal data received under this Agreement; (iv) obtain all necessary consents, according to their position as Controller or Processor of the data, under the Data Protection Laws and will not pass personal data to third parties without authorization.
(b) For the purposes of the processing of personal data, the Customer expressly authorizes the Carrier to process, collect, store, use, circulate, suppress, update, transfer or transmit inside and outside of the territory personal data related to the activities developed with the Customer, mainly for administrative uses, collection processes, market research, marketing activities, service promotion and other matters related to the company's corporate purpose, as provided in the internal policies adopted by Carrier, in accordance with the applicable law.
(c) The Processor of Personal Data will be liable only and in the extent of the damages caused by the processing of the personal data in violation of the applicable legislation or of the lawful instructions of the Controller.
(d) Upon termination of this Agreement, for whatever reason, Parties shall stop the Processing of Personal Data, delete or return all personal data to the Controller of such personal data according to its instructions.
16. Anti-Corruption
Each party acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977, and similarly applicable anti-corruption and anti-bribery laws (“Anti- Corruption Laws”). Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under this Agreement.
Any act in violation of U.S. Foreign Corrupt Practices Act or that of any legal requirement in the countries where the service is rendered shall be considered for immediate disconnection of some or all the services provided. Any outstanding invoices (regardless of disputes) up to the date of disconnection as a result of this violation will be due and payable immediately.
17. General
(a)Relationship of the Parties. Neither Party shall have the authority to bind the other by contract or otherwise or make any representations or guarantees on behalf of the other. Both Parties acknowledge and agree that the relationship arising from this MSA is one of independent contractor, and does not constitute an agency, joint venture, partnership, employee relationship or franchise.
(b)Governing Law; Jurisdiction. The laws of the State of Florida govern this Agreement. If either Customer or Carrier employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees, costs, and other expenses.
(c)Severability. If any court of competent jurisdiction determines that any provision of this Agreement or an Order is illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect. Such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or such Order or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties will negotiate in good faith to modify the affected provision to construe the original intent of the Parties in order that the transactions contemplated be consummated as originally intended to the greatest extent possible.
(d)Entire Agreement; Amendment. This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. This Agreement may be modified only by a written agreement signed by duly authorized representatives of both Parties.
(e)Dispute Resolution. Any dispute arising between the Parties in connection with this MSA shall be resolved by binding arbitration in the location of the Party not initiating the action, as set forth in this MSA, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. In addition to such rules, the arbitration shall be conducted in accordance with the Federal Rules of Civil Procedure, including, without limitation, the applicable rules therein with respect to discovery and the introduction of evidence. The arbitration shall be conducted by a panel of three arbitrators. Each Party shall select one arbitrator. The two chosen arbitrators shall then select the third arbitrator. The arbitrators shall have experience in telecommunications matters. Such award shall be final when rendered. The Parties shall not file any lawsuit or seek judicial review unless in accordance with this Section. Judgment on any award rendered by the arbitrators under this Section may be entered in any court having jurisdiction thereof. Any court having jurisdiction shall enforce as a binding and final arbitral award any interim measures ordered by the arbitral tribunal. Where a dispute involves a monetary claim, each Party acknowledges and agrees that it shall be required to place all disputed sums in an arbitrator approved escrow account during the pendency of the arbitration proceeding. Nothing in this Section 18(f) will (i) in any way limit a Party’s rights to seek injunctive relief of any kind, at any time, with respect to any matter; or (ii) in any way limit a Party’s right to suspend performance or terminate this Agreement as specified herein.
(f)Construction. Any additional agreements and amendments to this contract must be in writing and signed by both parties in order to become legally valid. The same applies for any agreement to waive this requirement for the written form. Should any provision of this contract or part thereof be or become legally invalid or impracticable, or an unintentional gap or omission come to light, this will not affect the validity of the remaining provisions of the contract. Any such invalid provision, gap or omission is to be replaced by a legally valid provision which corresponds most closely in both legal and economic terms to the actual or presumed intention of the Parties when entering into this contract.
(g)No Waiver. The failure of a Party hereto to enforce any provision of this Agreement, or the waiver thereof in any instance, shall not be construed as a general or continuing waiver or a waiver of any subsequent breach of covenant or other matter occurring, or a waiver of any other provision hereunder. Carrier's acceptance of the payment of rental or other payments after the occurrence of a Default shall not be construed as a waiver of such default, unless Carrier so notifies Customer in writing. Forbearance by Carrier in enforcing one or more of the remedies provided in this Agreement upon a default shall not be deemed or construed to constitute a waiver of such Default or of Carrier's right to enforce any such remedies with respect to such Default or any subsequent Default.
(h)Notices All notices and other communications (including invoices) required or permitted under this Agreement shall be in writing and shall be given by first class mail (or its equivalent), postage prepaid, registered or certified, return receipt requested, or transmitted by facsimile, electronic mail, or by hand delivery (including by means of a professional messenger service or overnight mail). Any notice or other communication shall be deemed given when received or refused and shall be sent: (1) in the case of Customer, to the Customer information contact address set forth in the Order, and in the case of Carrier, to the address below:
To Carrier:
EdgeUno, Inc.
3350 Virginia Street, 2nd Floor
Miami, FL 33133
Attn: Legal Department
Email: dpo@edgeuno.com
Contact Number: +1 352-888-7195
Either Party may, by similar notice given, change the notice address to which future notices or other communications shall be sent.
(i)Survival. The expiration or termination of this MSA shall not relieve either Party of those obligations that by their nature are intended to survive.
(j)Public Disclosures. All media releases, public announcements, and public disclosures relating to this Agreement or the subject matter of this Agreement, including promotional or marketing material, but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing Party, shall be coordinated with and shall be subject to approval by both Parties prior to release.
(k)No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever or by reason of this Agreement.
(l)Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement.
(m)Economic Balance.The parties acknowledge that the price was established taking into consideration the existing circumstances on the date hereof. If a supervening, extraordinary, unavoidable and unforeseen fact or a change in any of the fiscal burdens incurred by any of the parties after the date hereof occurs changing the balance of the original economic-financial framework of this Agreement, excessively burdening one of the parties, the parties shall renegotiate in good faith mutually agreed conditions in order to re-establish the original balance. Evidence to support this imbalance or of the excessive burden shall be provided by the affected party.
(n)Counterparts; Electronic Signatures. The parties may execute this Agreement in any number of counterparts. Each counterpart will be deemed an original and all counterparts will constitute one agreement binding on both Parties. Electronic signatures will be considered binding for all purposes, regardless of the use of a digital certificate.
Additionally, EdgeUno Inc reserves the right to request additional information or cancel the registration of a service in case it considers that its use is related to SPAM or Phishing. The Client accepts that the Terms and Conditions of the services offered by www.edgeuno.com indicated above may be modified at EdgeUno Inc's discretion.
