TERMS AND CONDITIONS
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(a); (f) “Carrier System” means a communications network, including a submarine cable system, that will connect cable landing stations in or near Wall Township, New Jersey and Santos, Brazil, 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, 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) “Financing 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 as an order to Services through the website www. edgeuno.com; (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; (bb) “Services” means the Carrier services provisioned pursuant to this MSA as specifically ordered from Customer from time-to-time using an Order; (cc) “Service Activation Date” is as defined in Section 2(b); (dd) “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; (ee) “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; (ff) “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; (gg) “Term” is as defined in Section 8.
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. 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.
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 days indicated in the invoice date. 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 an interest charge calculated from the date thirty-one (31) calendar days from the invoice date through the date of receipt of payment at the lesser rate of one and one-half percent (1.5%) per month or the maximum lawful rate allowable under applicable state law. If Customer disputes any charge billed hereunder, Customer must submit a documented claim regarding the billed amount within one hundred and eighty (180) days following receipt of the invoice on which the disputed charges appear. All claims regarding disputed charges not submitted to Carrier within such time frame will be deemed waived. Notwithstanding the foregoing, if Carrier provides Customer with two (2) or more erroneously duplicative invoices for payment and Customer pays such duplicative invoices, such event will not be considered an invoice dispute subject to the time limitations described in this section, and Carrier will promptly refund such amounts to Customer that were erroneously paid.
(b) At any time during the Term, if Customer has failed to make one (1) payment 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.
(c) 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. 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 15 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 15-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, 2,880 samples are collected (4 samples/hour x 24 hours/day x 30 days) and listed from highest to lowest. The highest 5% or 144 samples are discarded (representing the top 5% of usage levels). The highest remaining sample (sample 145 in this example) is used to determine Total Bandwidth Usage.
(d) 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.
(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 amendments to this Agreement. If the Parties cannot reach an agreement within sixty (60) calendar days following Carrier’s notice regarding renegotiation, then Carrier may, on a prospective basis, following such sixty-day period, pass any increased costs to Customer. If Carrier does so, then Customer may terminate the affected Service by providing notice to Carrier within thirty (30) days of the increased cost taking effect.
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; (d) 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; and (e) 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, v (ii) constitute a defamation or libel of Carrier or any third party, or (iii) result in any liability of Carrier to any third party.
(b) Customer is solely responsible for obtaining and maintaining all licenses, approvals, and regulatory authority for its operations and the use of the Services.
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 to 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.
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, 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.
(c) 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 an Order without liability if Carrier reasonably determines that Customer or an End User has failed to comply with any foreign, federal, state or local law or regulation related to the Service, or Carrier has a reasonable belief that Customer or an End User 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. 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, provided that Carrier will endeavor to make its best efforts to provide Customer as much notice as it can under the circumstances to enable Customer and Carrier an opportunity to cure the action giving rise to this suspension or termination right.
9. Confidentiality; (a) “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. 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.
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, including, but not limited to, the pricing and terms of this MSA or any Order, and any information relating to the disclosing Party's technology, business affairs, and marketing or sales plans, provided that such Confidential Information is marked as confidential or, given the nature of the information or the circumstances surrounding its disclosure, such information reasonably should be considered as confidential (collectively the "Confidential Information"). The foregoing restrictions on disclosure of Confidential Information do not apply to information that: (1) is in the possession of the receiving Party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (2) is or becomes known through no wrongful act or omission of the receiving Party; (3) is received without restriction from a third party free to disclose it without obligation to the disclosing Party; (4) is developed independently by the receiving Party without reference to the Confidential Information of the other Party, or (5) is required to be disclosed by law, regulation, court or governmental order, administrative agency, or arbitration proceeding; provided, however, that the receiving Party shall provide prompt notice of such court order or requirement to the disclosing Party to enable the disclosing Party to seek an appropriate protective order or otherwise prevent or restrict such disclosure.
(b) Each party accepts and undertakes to keep the other party’s confidential information cautiously as well as its own confidential information. Each party undertakes to keep (i) confidential information disclosed to it. Each party undertakes not to disclose (ii) Confidential Information to any third party in any condition excluding the conditions this contract allows explicitly, use the information (iii) only for the purposes of the commercial relationship. It undertakes not to directly or indirectly use the related information for the purposes which are not related with commercial relationship of the parties.
(c) Each of the parties can disclose the Confidential Information to its employees, contracted third parties whom need to know the information only in situations deemed mandatory. Each party has to notify these people regarding confidentiality of information and liabilities in the contract. Each party accepts and undertakes in advance that it will be directly responsible to other party when its employees or third parties contracted violate the provisions of the contract.
(d) The information which are not classified as confidential are (i) information developed separately without having confidentiality liability, or (ii) information learned without any restriction from a party who does not have confidentiality liability (this information is learned compliant with law) or (iii) public information or information which has become public later on without any violation of the contract provisions or (iv) information which can be confirmed according to the law that it was previously known by the party whom the information was disclosed or (v) information to be disclosed according to a law, regulations in effect, a decision by court, administrative order (in such condition the party whom the information is disclosed shall notify the disclosing party in writing as soon as possible before disclosing information and take necessary precautions to disclose Confidential Information to the extent necessary and maintain its confidentiality).
( e) 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.
(f) 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.
(g) 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 in to 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) its execution, delivery and performance of the Agreement has been duly authorized by all requisite corporate action; (iii) that the persons signing the Agreement on its behalf are authorized to do so; (iv) it is a business entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation; and (v) 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 SHALL BE LIMITED TO THE LESSER OF DIRECT DAMAGES OR TWELVE MONTHS’ WORTH OF FEES PAID FROM CUSTOMER TO CARRIER FOR THE AFFECTED SERVICE. 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 9(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.
(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 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 or for injury or death to persons.
(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 on the part of the other Party without the other Party’s prior written consent, such consent not to be unreasonably withheld. The indemnifying Party will not settle any Claim without the other Party’s prior written consent, such consent not to be unreasonably withheld.
(e) Carrier’s sole liability and Customer's sole and exclusive remedy for infringement claims are Carrier's indemnification obligations under this Section.
13. 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.
14. 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, Customer 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 Customer upon the delivery of written notice thereof to Carrier; (ii) a Party may effect 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.
15. 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.
(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 California govern this Agreement (without regard to its conflict-of-laws provision other than sections 5-1401 and 5-1402 of the General Obligations Law). 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 so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated be consummated as originally contemplated to the greatest extent possible.
(d) No Personal Liability. Every action or claim against any Party arising under or relating to this Agreement or an Order shall be made only against such Party as a corporation or company, and any liability relating thereto shall be enforceable only against the corporate or company assets of such Party. No Party shall seek to pierce the corporate veil or otherwise seek to impose any liability relating to, or arising out of, this Agreement or an Order against any shareholder, employee, officer, director, member, agent or representative of the other Party. Each of such persons is an intended beneficiary of the mutual promises set forth in this Section and shall be entitled to enforce the obligations of this Section.
(e) 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.
(f) 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 16(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.
(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. No waiver by Carrier or Customer of any violation or breach of any of the terms, provisions and covenants contained in this Agreement shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants contained in this Agreement. 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.
14271 Jeffrey Road #349
Irvine, CA 92620
Attn: Legal Department
Contact Number: +1 650 502 1903
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) 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.
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.