B4 Networks Inc.
MASTER CUSTOMER AGREEMENT
1) SCOPE OF SERVICES. B4 NETWORKS agrees to provide Client with professional information technology services and/or technology-related advice and solutions as set forth in one or more applicable statements of work, work orders, service requests or similar documents (each, a “SOW”) provided by B4 NETWORKS to Client from time-to-time (collectively, the “Services”). When Client’s signed version is received by B4 NETWORKS, the SOW shall automatically be deemed to be a part of this Agreement. In the event of a direct conflict between the language of this Agreement and any SOW, the language of the SOW will control, but only with respect to that particular SOW. B4 NETWORKS will perform all Services in accordance with the relevant best practices for the managed service provider industry, as well as those service levels explicitly described in this Agreement or any relevant SOW.
a) System. For the purposes of this Agreement, the term “System” shall mean, collectively, any computer network, computer system, peripheral or device installed, maintained, managed, monitored or operated by B4 NETWORKS pursuant to this Agreement, regardless of the location of such network(s), system(s) peripheral(s) or device(s). All other capitalized terms shall have the definitions ascribed to them in this Agreement.
b) Network Architecture. Client understands and agrees that the Services and Fees (defined below) described in any SOW are based upon the architecture of System as that architecture exists as of the effective date of the applicable SOW. In the event that Client’s network is subsequently modified in any manner, B4 NETWORKS reserves the right to require adjustments to the scope of Services and/or the Fees.
c) Modifications. Client will promptly notify B4 NETWORKS prior to installing any software to, or modifying any hardware of, the System, or moving the System, in part or in whole, to any location other than the location of the System known to B4 NETWORKS. Client’s failure to notify B4 NETWORKS as described in this Agreement may result in Client incurring additional costs, on a time and materials basis, to restore the System or to bring the System back to a functioning condition. Client will not permit any third party to modify, enhance, replace, access or remove the System, in part or in whole, without first notifying B4 NETWORKS. Except as otherwise specifically provided in this Agreement, B4 NETWORKS will not have any obligation to reimburse Client for any costs associated with any services performed or provided by parties other than B4 NETWORKS.
d) Limitations. Due to the vast number of components, platforms, operating systems and technologies that may be installed at Client’s premises or that may be included in the System, B4 NETWORKS cannot and does not warrant or represent that B4 NETWORKS will be able to monitor or manage all components comprising or connected to the System. In the event that B4 NETWORKS is requested but unable to monitor or manage a particular component, B4 NETWORKS shall notify Client and recommend workaround(s) to remediate that situation. B4 NETWORKS shall not be responsible for any issues that arise from or that are related to components that are incompatible generally with the System, or which B4 NETWORKS notifies Client are incapable of being monitored or managed by B4 NETWORKS.
e) Requirements. At all times, all software on the System must be genuine and licensed, and Client agrees to provide B4 NETWORKS with proof of licensing upon request. In addition, as a condition of the provision of the Services, B4 NETWORKS may require that the System meet and maintain certain minimum hardware and software requirements (“Minimum Requirements”). It is Client’s responsibility to ensure that all Minimum Requirements are met or exceeded at all times during the term of this Agreement, unless B4 NETWORKS agrees to waive or perform such activities pursuant to a SOW.
f) Updates. If System updates are provided to Client under a SOW, then B4 NETWORKS will keep the applicable portions of the System current with patches and other software-related maintenance updates (“Updates”) as such Updates are released generally to the public and, in all cases, after B4 NETWORKS has determined, in its discretion, that the Updates will be compatible with the particular configuration of the System and/or the components comprising the System. Client understands that Updates are developed by third party vendors and, despite B4 NETWORKS's best efforts, Updates may make portions of the System unstable or cause the System to operate improperly even when the Updates are installed correctly. B4 NETWORKS shall not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with manufacturer’s suggestions or instructions.
g) Passwords. In order to provide managed services, B4 NETWORKS may be required to receive administrative-level passwords (“Passwords”) to the System. Unless otherwise directed to do so in writing by Client’s Authorized Contact, Passwords shall not be disclosed to any of Client’s employees, or to any person or entity acting on behalf of Client. This precaution is intended to protect the security and integrity of the System. B4 NETWORKS shall be held harmless against any downtime, loss or damage to the System that arises from or relates to Client’s use or misuse of the Passwords, or any delay in providing Passwords to B4 NETWORKS when requested to do so.
h) Virus Protection / Malware. Services related to the detection, remediation and/or removal of viruses, malware and/or spyware (collectively, “Malware”) shall be provided only as expressly stated in a SOW. Client understands and agrees that no Malware solution is 100% effective at detecting or removing all Malware and, therefore, B4 NETWORKS does not warrant or guarantee that all Malware will be immediately prevented, detected or removed, or that the System will be free from errors, damage or downtime due to Malware infiltration.
2) FEES; HOURLY WORK. Client agrees to pay B4 NETWORKS the fees described in each SOW (“Fees”). If B4 NETWORKS agrees to perform work on an hourly basis, then B4 NETWORKS shall bill for its services on an hourly basis (“Hourly Work”) at B4 NETWORKS’s then-current hourly rate, unless otherwise indicated in an applicable SOW. Note, hourly rates will vary if Hourly Work is required to be performed during non-business hours. All hourly work shall be billed in thirty (30) minute intervals, and partial intervals shall be rounded up to the nearest fifteen (15) minute interval. Unless otherwise specified in a SOW, a thirty (30) minute minimum shall apply to all Hourly Work performed offsite (i.e., no travel required), and a one (1) hour minimum shall apply where travel by B4 NETWORKS is required. In addition, if travel is required, Client will be responsible for paying all costs and expenses incurred by B4 NETWORKS in the provision of the Services, including parking fees and tolls, as well as meals and hotel fees (if overnight stays are required) unless otherwise specified in a SOW.
3) PAYMENT. Unless otherwise stated in a SOW, all undisputed Fees will be due and payable by Client in advance of the calendar month in which the Services are to be provided to Client. Payments made by ACH (Direct Debit) will be deducted from Client’s designated bank account on the first business day of the month for which the Services are to be provided. For prepaid Fees, flat Fee-type arrangements, or Fees paid pursuant to a managed service/tiered plan, payment must be made in advance of the service being provided, unless other arrangements are agreed upon in the SOW. Invoices will be transmitted to Client electronically, and must be paid within fifteen days following the date on which the invoice is delivered to Client. Late payment for undisputed Fees shall be subject to interest on the unpaid invoice amount(s) until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. B4 NETWORKS reserves the right, but not the obligation, to suspend part or all of the Services in the event that any portion of undisputed Fees are not timely received by B4 NETWORKS within fifteen (15) days following the date on which such Fees are due. All disputes initiated by Client related to Fees must be received by B4 NETWORKS within sixty (60) days after the applicable Service is rendered or the date on which Client receives an invoice, whichever is later, otherwise Client waives its right to dispute the applicable Fee thereafter. A re-connect fee may be charged to Client in the event that B4 NETWORKS suspends the Services due to Client’s nonpayment of undisputed fees. Client shall be liable for all reasonable attorneys’ fees as well as costs incurred in collection of past due balances including but not limited to collection fees, filing fees and court costs. TIME IS OF THE ESSENCE IN THE PERFORMANCE OF ALL PAYMENT OBLIGATIONS BY CLIENT.
B4 NETWORKS reserves the right to charge past due invoices to any PAD or Credit Card we have on file for any and all outstanding invoices.
4) AUTHORIZED CONTACT PERSON. Client shall designate one or more authorized contact person(s) (each, an “Authorized Contact”) with whom B4 NETWORKS may conduct Service-related communications. Client’s initial Authorized Contact(s) is/are indicated in the signature block of this Agreement. Client may also designate additional Authorized Contacts with respect to individual Statements of Work. Each Authorized Contact will be a point of contact for B4 NETWORKS, and will be authorized to provide, modify and approve on Client’s behalf, work direction, SOWs and payment. Client understands and agrees that B4 NETWORKS will be permitted to act upon the direction and apparent authority of each Authorized Contact, unless and until B4 NETWORKS receives written notice from Client that an Authorized Contact is no longer authorized to act on Client’s behalf. If during the Term of this Agreement, Client elects to add or remove an Authorized Contact or modify an Authorized Contact’s information or authority, Client must notify B4 NETWORKS in writing of the change(s) including (in the event of the addition of an Authorized Contact) the Authorized Contact’s name, address, email address and telephone number.
5) ACCESS. Client hereby grants to B4 NETWORKS the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the System on a 24x7x365 basis, for the purpose of enabling B4 NETWORKS to provide the Services. For the purposes of this paragraph, “access” shall include (i) virtual access, including internet-based and/or, as applicable, cellular based-access, and (ii) ingress and egress over and in the physical premises in which the System is located (collectively, “Premises”). It is Client’s responsibility to secure, at Client’s own cost and prior to the commencement of any Services, any rights of entry, licenses, permits or other permissions necessary for B4 NETWORKS to provide the Services at the Premises. Client must provide B4 NETWORKS with all passwords or keys (virtual or otherwise) that B4 NETWORKS requires to provide the Services to Client. B4 NETWORKS will not be liable for delay in its performance, or the nonperformance, of any term or condition of this Agreement directly or indirectly resulting from Client's denial to B4 NETWORKS of full and free access to the System, or Client’s denial to B4 NETWORKS of full and free access to Client’s personnel or Premises pursuant to this Agreement.
6) LIMITED WARRANTIES; LIMITATIONS OF LIABILITY.
a) Hardware Purchased Through B4 NETWORKS. If B4 NETWORKS purchases hardware for Client (“Purchased Hardware”), then the following warranties shall apply to those purchases:
i) Initial Warranty. B4 NETWORKS will, in its discretion, replace or refund the purchase price of any Purchased Hardware if the Purchased Hardware is found to be defective upon initial delivery to Client and/or for the first thirty (30) days following delivery of the Purchased Hardware to Client; provided, however, that Client (a) immediately notifies B4 NETWORKS of the defective Purchased Hardware, and (b) refrains from troubleshooting or attempting to troubleshoot the defective Purchased Hardware unless expressly directed to do so by B4 NETWORKS. The foregoing warranty will not apply to the extent that any defect is caused by or due to Client’s misuse or abuse. For the purposes of this paragraph, Purchased Hardware will be considered to have failed to function properly and/or be defective if the applicable device does not function in substantial accordance with its normal functions or features, or in accordance with the documentation accompanying the applicable device(s).
ii) Post-Initial Warranty. After the expiration of the thirty (30) day period described above, if Client is subscribed to one of B4 NETWORKS’s full managed service plans, B4 NETWORKS will facilitate warranty service or repair service from the manufacturer of the Purchased Hardware at no cost to Client. If Client is not subscribed to one of B4 NETWORKS’ managed service plans, then such warranty services will be billed to Client on an hourly basis at B4 NETWORKS’ then-current hourly rate.
b) Suitability. Unless expressly stated in a SOW, B4 NETWORKS does not warrant or guarantee that Purchased Hardware will be suitable for Client’s specific needs, or that Purchased Hardware will be fully compatible with the System.
c) Third Party Products. Unless otherwise expressly stated above or in a SOW, any third party products or services provided to or procured for Client pursuant to this Agreement, including but not limited to third party hardware, software, peripherals and accessories (collectively, “Third Party Products”) shall be provided to Client “as is.” B4 NETWORKS shall use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to Client, but will have no liability whatsoever for such Third Party Products. Unless otherwise expressly stated in this Agreement or in a SOW, all Third Party Products are pro¬vided WITHOUT ANY WARRANTY WHATSOEVER as between B4 NETWORKS and Client, and B4 NETWORKS shall not be held liable as an insurer or guarantor of the performance, uptime, usefulness or quality of Third Party Products.
d) No Liability. Unless otherwise expressly stated in a SOW, B4 NETWORKS assumes no liability for failure of any equipment or software or any losses resulting from such failure.
e) LIMITATIONS. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUE, LOSS OF PROFITS, SAVINGS, OR OTHER INDIRECT OR CONTINGENT EVENT-BASED ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY SOW(S) OR ANY SERVICES PERFORMED OR PARTS OR EQUIPMENT OR SOFTWARE SUPPLIED OR PROCURED HEREUNDER, ANY LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, OR FOR ANY BREACH HEREOF OR FOR ANY DAMAGES CAUSED BY ANY DELAY IN FURNISHING SERVICES UNDER THIS AGREEMENT OR ANY STATEMENT(S) OF WORK EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER FOR DAMAGES FROM ANY AND ALL CAUSES WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT OF THE AGGRIEVED PARTY’S ACTUAL DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO B4 NETWORKS FOR THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT THAT THE APPLICABLE DAMAGES ARE THE RESULT OF AN AGGRIEVED PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. IT IS UNDERSTOOD AND AGREED THAT THE COSTS OF HARDWARE OR SOFTWARE (IF ANY) PROVIDED TO CLIENT UNDER THIS AGREEMENT SHALL NOT BE INCLUDED IN THE CALCULATION OF THE LIMITATION OF DAMAGES DESCRIBED IN THIS PARAGRAPH.
7) INDEMNIFICATION. Each party (an “Indemnifying Party”) hereby agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all loss, damage, cost, expense or liability, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to the negligent acts, negligent omissions or intentional wrongful misconduct of the Indemnifying Party and/or the Indemnifying Party’s employees or subcontractors, and from any Damages arising from or related to the Indemnifying Party’s uncured, material breach of this Agreement. The Indemnifying Party further agrees to indemnify, defend, save and hold harmless the Indemnified Party, its offices, agents and employees, from all Damages arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property or other work in connection with the performance of the Services; provided however, that such Damages are the direct result of the Indemnifying Party’s actions and not due to the Indemnified Party’s fault, in whole or in part.
a) COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY. Each party (a “Creating Party”) owns and retains all intellectual property rights in and to all of the Creating Party’s works of authorship, including but not limited to all plans, software or software modifications developed by the Creating Party, and all modules derived or created from such materials (collectively, “Creating Party’s IP”). The Creating Party’s IP may not be distributed or sold in any form or manner without the express written consent of the Creating Party. During the term of this Agreement, Client may use and modify any intellectual property provided to Client by B4 NETWORKS pursuant to this Agreement, provided that such modifications (i) do not result in or cause the infringement of any intellectual property rights of any third party, (ii) do not require Client to reverse engineer B4 NETWORKS’s intellectual property, and (iii) do not negatively impact the security or integrity of Client or any of Client’s equipment, or the implementation of the Services. Client hereby grants to B4 NETWORKS a nonexclusive, royalty free license to use Client’s intellectual property to the extent necessary for B4 NETWORKS to provide the Services to Client. In addition, B4 NETWORKS may use Client’s company name, trademark and other Client-identifying information on B4 NETWORKS’s website or marketing materials to identify Client as a customer of B4 NETWORKS. Each party’s limited right to use the other party’s intellectual property as described herein automatically terminates upon the termination of this Agreement.
8) TERM; TERMINATION. The term (the “Term”) of this Agreement shall begin on the Effective Date, and shall continue until terminated in accordance with the provisions of this Agreement. The term of each SOW shall be as indicated in the SOW. The termination or expiration of one SOW shall not, by itself, cause the termination or expiration of any other SOW.
a) Termination of a SOW. Unless otherwise stated in a SOW, no SOW may be terminated without cause prior to its natural expiration date.
b) Termination of this Agreement.
i) Without Cause. Either party may terminate this Agreement for any reason by providing the other party with thirty (30) days prior written notice; however, any SOW in effect on the date of termination shall continue to remain in effect, and shall continue to be governed by the terms of this Agreement through the SOW’s natural expiration or termination date.
ii) Consent. The parties may mutually consent, in writing, to terminate this Agreement at any time.
c) Termination for Default. In the event that one party (a “Defaulting Party”) commits a material breach of this Agreement or a SOW, the non-Defaulting Party shall have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for nonpayment by Client) following receipt of written notice from the non-Defaulting Party.
d) Exceptions. Notwithstanding any provision to the contrary:
i) In the event of a material breach by B4 NETWORKS, this Agreement and any SOW may be terminated by Client, with the understanding that B4 NETWORKS is to be paid in full (a) for all outstanding Fees that have accrued, through the date of termination of the SOW or this Agreement (as applicable), and (ii) for all amounts that B4 NETWORKS advanced on Client’s behalf (i.e., hard costs, licensing fees, etc.) pursuant to a SOW, and (iii) for any additional hardware / software licensing ordered through standard procurement procedure.
ii) Neither this Agreement nor any SOW may be terminated by Client for any reason until and unless B4 NETWORKS is paid in full (a) for all outstanding Fees that accrued, and which will accrue, through the date of termination of the SOW or this Agreement (as applicable), and (ii) for all amounts that B4 NETWORKS advanced on Client’s behalf (i.e., hard costs, licensing fees, etc.) pursuant to a SOW.
iii) In the event that any Client-supplied equipment, hardware or software, or any action undertaken by Client, causes the System or any part of the System to malfunction on three (3) occasions or more (“System Malfunction”), and Client fails to remedy, repair or replace the System Malfunction as directed by B4 NETWORKS, then B4 NETWORKS shall have the right, in B4 NETWORKS’s discretion, to amend the Services to eliminate from coverage any System Malfunction, and/or upon ten (30) days prior written notice to Client, to terminate this Agreement.
e) Equipment / Software Removal. Upon termination of this Agreement for any reason, Client shall provide B4 NETWORKS with access, during normal business hours, to Client’s premises (or any other locations at which B4 NETWORKS-owned equipment or software is located) to enable B4 NETWORKS to remove all B4 NETWORKS-owned equipment and software (if any) from the Premises. If Client fails to grant B4 NETWORKS access as described herein, or if any of the B4 NETWORKS-owned equipment is broken or damaged (normal wear and tear excepted) or any of the software is missing, B4 NETWORKS shall have the right to invoice Client for, and Client hereby agrees to pay immediately, the full replacement value of any and all such equipment and software.
f) Transition. In the event that Client requests B4 NETWORKS’s assistance to transition to a new service provider, B4 NETWORKS shall do so provided that (i) all Fees due and owing to B4 NETWORKS are paid in full prior to B4 NETWORKS providing its assistance to Client, and (ii) Client agrees to pay B4 NETWORKS its then-current hourly rate for such assistance, with upfront amounts to be paid to B4 NETWORKS as agreed upon between the parties. Unless otherwise expressly stated in a SOW, B4 NETWORKS shall have no obligation to store or maintain any Client data in B4 NETWORKS’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement. B4 NETWORKS shall be held harmless for, and indemnified by Client against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, B4 NETWORKS’s deletion of Client data beyond the time frames described in this Section 8(f).
g) No Liability: Unless expressly stated in this Agreement, neither party shall be liable to the other party or any third party for any compensation, reimbursement, losses, expenses, costs or damages (collectively, “Damages”) arising from or related to, directly or indirectly, the termination of this Agreement for any reason, or for Damages arising from or relating to B4 NETWORKS’s disclosure of information pursuant to any valid legal request to which B4 NETWORKS is required to comply, provided B4 NETWORKS has provided Client with immediate notice of said request if allowed by law. This waiver of liability shall include, but shall not be limited to, the loss of actual or anticipated profits, anticipated or actual sales, and of expenditures, investments, or commitments in connection with such party’s or any third party’s goodwill or business.
9) UPTIME; REPORTING; REMEDIES.
a) Uptime. B4 NETWORKS warrants and represents that the Services will be provided as indicated in the relevant SOW (“Uptime”), except for periods of outages during (i) Scheduled Downtime (defined below), or (ii) Client-Side Downtime (described below), or (iii) a force majeure event. Fees shall continue to accrue during any of the foregoing, unless otherwise waived by B4 NETWORKS in its discretion.
i) Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime shall mean those hours, as determined by B4 NETWORKS but which shall not occur between the hours of 9 AM and 5 PM EST Monday through Friday without Client’s authorization or unless exigent circumstances exist, during which time B4 NETWORKS shall perform scheduled maintenance or adjustments to its network. B4 NETWORKS shall use its best efforts to provide Client with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
ii) Client-Side Downtime. Notwithstanding any provision to the contrary, B4 NETWORKS shall not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Client’s actions or omissions, or any modifications made by Client to the hosted environment (“Client-Side Downtime). In the event that such delays or deficiencies occur, B4 NETWORKS shall be permitted to extend any relevant deadline as B4 NETWORKS reasonably deems necessary to accommodate such delays or deficiencies.
iii) Remedies; Limitations. Notwithstanding any provision to the contrary, except for the Startup Exception (described below), if B4 NETWORKS fails to meet its Uptime or service level commitment in a given calendar month, then upon written request from Client, B4 NETWORKS shall issue Client a credit in an amount equal to the period of time of the outage and/or service failure. All requests for credit shall be made by Client no later than thirty (30) days after the applicable Service failure occurs. Further, if B4 NETWORKS fails to meet its Uptime or Service commitment levels on ten (10) or more occasions over the course of a three (3) contiguous month period, Client shall have the right to terminate the relevant SOW immediately for cause by providing B4 NETWORKS with written notice of termination, and except for Fees that accrued prior to the date of termination, Client shall have no further liability to B4 NETWORKS under the applicable SOW whatsoever. The remedies contained in this paragraph and those in Section 8(c) above, are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available to Client for B4 NETWORKS’s failure to meet any Uptime or service level commitment during the term of this Agreement.
b) Applicability. The support levels described in this Agreement and any SOW apply only to issues, problems or outages with the portions of the System that are maintained, managed or administered by B4 NETWORKS pursuant to a SOW. Any other equipment, hardware or software (including but not limited to telecommunication lines, electrical lines, and services provided to Client by third parties) are not covered by B4 NETWORKS’s support services, and remediation for such excluded items will be billed at B4 NETWORKS’s then-current hourly rate.
c) Third Party-Hosted Services. Cloud-based services hosted by third party providers (if any) shall be supported as indicated in the end user license agreement in place between Client and the applicable third party provider.
d) Exemption. The parties acknowledge and agree that for the first ten (10) business days following the Effective Date, the response time commitments described in this Section 10 shall not apply to B4 NETWORKS, it being understood that there may be unanticipated downtime or delays due to B4 NETWORKS’s initial startup activities with Client (the “Startup Exception”).
10) CONFIDENTIALITY.
a) Defined. For the purposes of this Agreement, Confidential Information shall mean any and all non-public information provided to B4 NETWORKS by Client, including but not limited to Client’s customer data, customer lists, internal Client documents, and related information. Confidential Information shall not include information that: (i) has become part of the public domain through no act or omission of B4 NETWORKS, (ii) was developed independently by B4 NETWORKS, or (iii) is or was lawfully and independently provided to B4 NETWORKS prior to disclosure by Client, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
b) Use. B4 NETWORKS shall keep Client’s Confidential Information confidential, and shall not use or disclose such information to any third party for any purpose except (i) as expressly authorized by Client in writing, or (ii) as needed to fulfill B4 NETWORKS’s obligations under this Agreement. If B4 NETWORKS is required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then B4 NETWORKS shall ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section 10. B4 NETWORKS shall exercise the same degree of care with respect to the Confidential Information it receives from Client as B4 NETWORKS normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases shall be at least a commercially reasonable level of care.
c) Compelled Disclosure. If B4 NETWORKS is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, B4 NETWORKS shall immediately notify Client in writing of such requirement so that Client may seek a protective order or other appropriate remedy and/or waive B4 NETWORKS’s compliance with the provisions of this Section 10. B4 NETWORKS will use its best efforts, at Client’s expense, to obtain or assist B4 NETWORKS in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, B4 NETWORKS may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that B4 NETWORKS has been advised by written opinion of counsel reasonably acceptable to B4 NETWORKS that it is legally compelled to disclose.
11) Mutual Non-Solicitation.
a) During the term of this Agreement, and for a period of six (6) months thereafter, B4 NETWORKS will not solicit, hire, contract with, or engage the employment or services of any employee of Client unless authorized by Client in writing.
b) Client will not solicit, hire, contract with, or engage the employment or services of any employee of B4 NETWORKS unless authorized by B4 NETWORKS in writing. The parties acknowledge and agree that a breach of this “Non-Solicitation” clause will not give rise to a right of termination of this Agreement; the party not in breach will only have the right to seek and recover direct damages from the breaching party.
12) ADDITIONAL TERMS.
a) EULAs. Portions of the Services may require Client to accept the terms of one or more third party end user license agreements (“EULAs”). EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. Client agrees to be bound by the terms of such EULAs, and shall look only to the applicable third party provider for the enforcement of the terms of such EULAs. B4 NETWORKS reserves the right to suspend or terminate Client’s access to B4 NETWORKS-hosted solutions or B4 NETWORKS-provided cloud-based solutions in the event that B4 NETWORKS has reason to believe that the solutions are being accessed, used or otherwise manipulated in a manner that violates the law, or poses a threat to the B4 NETWORKS or security of B4 NETWORKS’s computer servers or any third party server.
b) BDR/Data Backup. Client understands and agrees that B4 NETWORKS shall not be responsible for any data lost, corrupted or rendered unreadable due to communication and/or transmissions errors or related failures, or equipment failures (including but not limited to silent corruption-related issues). Client is strongly advised to maintain a local backup of all mission-critical or customer-critical data, and to periodically verify the integrity and availability of all backed up data. B4 NETWORKS will not supply or maintain such a local backup unless expressly required in a SOW. Client is urged to implement a rotation system to ensure that the media upon which backup data is stored is swapped out at regular intervals and kept off site.
c) Mobile Devices. To the extent that the Services include the monitoring, management or administration of mobile devices, Client hereby represents and warrants that B4 NETWORKS is authorized to provide the Services to all devices, peripherals and/or computer processing units, including mobile devices (such as pdas, notebook computers, and tablet computers) that (i) are connected to the System, and (ii) have been designated by Client to receive the Services, regardless of whether such device(s) are owned, leased or otherwise controlled by Client. Unless otherwise stated in a SOW, devices will not receive or benefit from the Services while the devices are detached from or unconnected to the System.
d) Repetitive Issues. Client agrees to promptly implement any reasonably clear instructions provided by B4 NETWORKS to Client relating to the System or the Services. If Client fails to implement B4 NETWORKS’s instructions and, as a result of such failure, one or more managed peripherals of the System experiences or causes repeated failures, downtime or damage, then in addition to any other remedies available to B4 NETWORKS, B4 NETWORKS shall have the right to (i) declare a material breach under the SOW, (ii) exclude the applicable managed peripheral from the scope of the SOW, and/or (iii) suspend the Services (in part or in whole) until Client implements B4 NETWORKS’s instructions.
e) Cyber Security. No Cybersecurity efforts will be undertaken unless specifically set forth in an SOW. MSP is not obligating itself to design advise or implement safeguards to protect against administrative failures, physical failures or technical failures unless it's been retained to. Even if an SOW dealing with Cybersecurity is executed by the parties, it is not an absolute guarantee regarding the security of data.
13) MISCELLANEOUS.
a) Assignment. Neither this Agreement nor any SOW may be assigned or transferred by a party without the prior written consent of the other party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, B4 NETWORKS may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of a party, or any other transaction in which ownership of more than fifty percent (50%) of either party's voting securities is transferred; provided such assignee expressly assumes the assignor’s obligations hereunder.
b) Amendment. No amendment or modification of this Agreement or any SOW shall be valid or binding upon the parties unless such amendment or modification is originated in writing by B4 NETWORKS, specifically refers to this Agreement, and is accepted in writing by one of Client’s Authorized Contacts.
c) Time Limitations. The parties mutually agree that any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
d) Severability. If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW shall be valid and enforceable to the fullest extent permitted by applicable law.
e) Other Terms. B4 NETWORKS shall not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication between the parties unless such terms or conditions are incorporated into a duly executed SOW. In the event any provision contained in this Agreement is held to be unenforceable in any respect, such unenforceability shall not affect any other provision of this Agreement, and the Agreement shall be construed as if such an unenforceable provision or provisions had never been included in this Agreement.
f) No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, shall not constitute an Agreement to waive such terms with respect to any other occurrences.
g) Merger. This Agreement, together with any SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement or SOW shall act only to provide illustrations or descriptions of Services to be provided, and shall not act to modify this Agreement or provide binding contractual language between the parties. B4 NETWORKS shall not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.
h) Force Majeure. B4 NETWORKS shall not be liable to Client for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond its reasonable control. Such circumstances include, but shall not be limited to, any acts or omissions of any governmental authority, natural disaster, highly inclement weather, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, acts of God, or any other events beyond the reasonable control of B4 NETWORKS.
i) Non-Solicitation. Client acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, Client will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of B4 NETWORKS’s employees or subcontractors to discontinue or reduce the scope of their business relationship with B4 NETWORKS, or recruit, solicit or otherwise influence any employee or agent of B4 NETWORKS to discontinue such employment or agency relationship with B4 NETWORKS. In the event that Client violates the terms of the restrictive covenants in this Section 12(i), the parties acknowledge and agree that the damages to B4 NETWORKS would be difficult or impracticable to determine, and agree that in such event, as B4 NETWORKS’s sole and exclusive remedy therefore, Client shall pay B4 NETWORKS as liquidated damages and not as a penalty an amount equal to twenty-five percent (25%) percent of that employee or subcontractor’s first year of base salary with Client (including any signing bonus).
j) Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement shall survive.
k) Governing Law; Venue. This Agreement and any SOW shall be governed by, and construed according to, the laws of the Province of Ontario.
l) No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
m) Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
n) Independent Contractor. Each party is an independent contractor of the other, and neither is an employee, partner or joint venture of the other.
o) Subcontractors. B4 NETWORKS may subcontract part or all of the Services to one or more third parties provided, however that B4 NETWORKS shall be responsible for, and shall guarantee, all work performed by any B4 NETWORKS-designated subcontractor as if B4 NETWORKS performed such work itself. Notwithstanding the foregoing, B4 NETWORKS shall not delegate or subcontract any Services that are expressly designated as being non-delegable by Client on a SOW.
p) Prevailing Party. In the event that a party is required to bring an action to enforce the terms of this Agreement, the party prevailing in the action shall be entitled to an award of the costs, expenses and fees (including reasonable attorneys’ fees) that the prevailing party incurred in the action.
q) Counterparts. The parties may execute and deliver this Agreement and any SOW in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one agreement. Each party acknowledges and agrees that this Agreement is intended to be executed and transmitted to the other party via electronic means. Accordingly, a party may execute and deliver this Agreement (or any SOW) electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party shall be entitled to rely upon the apparent integrity and authenticity of such signature for all purposes.
This Agreement is effective only upon execution by B4 NETWORKS and Client. Each party hereto warrants and represents that this Agreement constitutes the legal, valid and binding obligation of such party as of the Effective Date.
