General Terms and Conditions
1. Provision of Services
a. Description of Services.
Subject to and in accordance with the terms of this Agreement, Edge Hosting, LLC (Edge) hereby agrees to provide to Customer the services described on the Service Order previously executed by the parties (collectively, the “Services”). Additional provisions that apply to the Services are set forth on one or more addendums attached to this Agreement (individually and collectively, the “Addenda”). All Service Orders and Addenda applying to the Services are hereby incorporated into this Agreement by this reference. Any change in the Services (including any addition or modification) must be agreed upon in writing by Edge and Customer. Any terms that are not defined in this Agreement shall have the definitions given to them in the document in which they are defined.
b. Implementation of the Services.
Edge agrees to use good faith efforts to implement the Services in accordance with the applicable Service Order. Customer agrees to, and, if applicable, agrees to cause its third party providers to, provide Edge with all reasonably requested assistance to enable Edge to implement the Services in accordance with the applicable Service Order. Billing for individual Services will begin as set out on the applicable Service Order. If no time is set out on a Service Order, billing will begin when the Services are made available for Customer to use.
Agreement Term. This Agreement and each Addenda shall commence upon execution by the Parties (“Effective Date”), and shall continue as long as there is an active Service Order in effect between the Parties (“Term”).
Service Order Term. Each Service Order carries its own term under the Agreement (“Service Order Term”). The effective date for each Service Order Term is the date the Parties execute the Service Order (“Service Order Effective Date”). The Service Order Term begins on the date the Services set forth in the Service Order are delivered (“Billing Date”), and continues for 12 months (“Service Order Initial Term”), after which it shall automatically renew for 12 month periods (“Service Order Renewal Term”),unless either Party provides written notice of non-renewal to the other Party at least 30 days prior to the end of the Service Order Term.
The expiration of one Service Order Term does not have any impact on the obligations of the Parties set forth in subsequent Service Orders.
The obligations of this Agreement remain in effect until the expiration of the final Service Order Term.
a. Termination by Edge.
We may terminate a Service Order, or this entire Agreement, prior to the end of an applicable Term, without liability to you, or waiving any of our rights, if:
- You, End Users, or any third party using the Services through you, does not comply with the applicable terms of any aspect of this Agreement, including items incorporated by reference;
- You have made any false statements to us;
- We are prohibited from offering the Services, or a third party vendor stops making aspects of the Services available to us, or uneconomical to continue to provide to you;
- You fail to cure a material breach within ten days of written notice from us, or the material breach is incapable of cure;
- You file for bankruptcy (whether voluntary or involuntary) or reorganization; and/or
- You do not provide us with technical information necessary for us to implement the Services in a commercially reasonable amount of time.
Prior Notice - We agree to provide you with prior written notice of our intention to terminate a Service Order pursuant to this paragraph. You will be given a reasonable opportunity to cure any issues leading to our termination, unless cure is impossible or would not completely eliminate the grounds for our termination.
Resuming Services - After termination, we may choose to resume providing the Services to you, at your request. We are under no obligation to do so, and new Fees may be assessed.
b. Termination by you.
You may terminate a Service Order prior to the end of an applicable Term, if we have failed to cure a material breach related to a particular Service within ten days of written notice from you, or our material breach is incapable of cure.
This termination right shall be your sole and exclusive remedy.
Our Service Level Agreement provides a remedy for certain issues. If our Service Level Agreement provides a remedy for an issue, the rights provided to you in this paragraph do not apply.
c. Effect of Expiration or Termination.
Except as otherwise set out in this Agreement, upon the expiration or termination of a Service Order or this entire Agreement, Edge shall have no further duties or obligations to provide the terminated Services and Customer shall have no future duties or obligations with respect to the terminated Services. However, should this Agreement or a Service Order be terminated by us pursuant to paragraph 2(a) above, or by you, except as permitted herein, you shall remain responsible for all accrued and future Fees for the remainder of the Term (“Early Termination Fee”). The parties agree that the Early Termination Fee is a material inducement for Edge to provide the pricing to you set out in the Service Order, and that without the Early Termination Fee, this pricing would not have been offered.
You will pay the fees and charges set out in the Service Order, which includes the costs of third party services or products (“Fees”). The Fees shall be paid or invoiced as set out in the Service Order, and shall include any applicable sales, use or other taxes. If the Service Order indicates a minimum usage amount, this minimum usage amount shall be billed, or due, at the same time as other Fees. Fees are due on the date set out on our invoice (“Due Date”).
First Invoice - Your first invoice will include all non-recurring charges, recurring charges for the first full month, any additional charges incurred as a result of your special requests (such as expedite charges) and the pro-rated amount for Services provided during installation.
Reservation of Rights - We reserve the right: to bill you retroactively for any Services for which we had not previously billed; to bill you retroactively for the costs of the removal and storage of equipment you have placed in our facility if an applicable Service Order is terminated and this equipment is not removed by you; and/or to sell your equipment to satisfy your outstanding balance due.
Late Payment Fees; Certain Remedies - You will pay a late payment charge equal to the lesser of 1.5% per month or the maximum amount permitted by law on invoiced amounts not paid when due (other than disputed amounts resolved in your favor). Edge shall be entitled to recover from you its reasonable attorneys’ fees, court costs, collection charges and other expenses incurred in actions taken to collect unpaid amounts owed pursuant to this Agreement.
Disconnection - If the Services are disconnected due to nonpayment or late payment, you are responsible for all costs incurred by us resulting from the disconnection in addition to any other payment obligations set out in this Agreement.
Fee Disputes - If you believe your invoice is incorrect you may dispute those charges you believe are in error. You must provide us with notice of your dispute no later than five days prior to the Due Date. Your notice must be in writing, made in good faith, and contain sufficient facts and documentation for us to conduct an investigation into your claim. You are not obligated to pay charges in dispute, but remain responsible for those that are not. Those undisputed charges must be paid by the Due Date. Upon receipt of your notice of dispute, we will conduct an investigation. We will notify you in writing of our conclusions within sixty days from the date we receive the documentation of your dispute. If we determine that your dispute is valid, your account will be credited on your next billing cycle. If we determine that it is not valid, the parties agree to work together in good faith for the next thirty days to resolve the dispute. If the parties are unable to resolve the dispute during this time, either party may pursue their remedies at law, as set out in this Agreement. You waive any right to dispute charges if you do not comply with the provisions of this paragraph.
4. Our Rights
Emergency - In the event of an emergency our work will take precedence over your operations. We may interrupt the Services, remove or rearrange equipment, disconnect or disable devices, limit access, or disable software, during an emergency without any liability to you or any individual or entity associated with you.
Data transfer spikes - In the event of an unusual increase in the amount of data transferred by a particular Service, for network integrity, it may be necessary to limit or stop all your data transfer. If this occurs, we will use commercially reasonable efforts to contact you using the information set out in our records. We will attempt to limit the time in which your data transfer is restricted, but this type of restriction will not be a material breach of this Agreement.
Operation of Facilities - We retain the right to maintain and operate our facilities in such a manner as will best enable us to conduct our normal business operations. You may not terminate the Agreement based on changes in this operation unless such a change materially alters the type of Services provided by us.
Custom Coding - upon your written request, and on an emergency basis only, we will access your Equipment to attempt to remedy errors or nonconformities present in your computer code that may be making it difficult for you to use the Services (Custom Coding). You agree to cooperate with us in accessing your Equipment and will provide us with all information necessary for us to investigate the reasons for the error or nonconformity, if any, and deploy the Custom Coding. You understand that any Custom Coding is specifically covered by the provisions of paragraph 7 limiting our liability and disclaiming any warranty. You agree to indemnify us, as set out in paragraph 8(b), should the Custom Coding cause damage to third parties.
5. Acceptable Use of Services
6. Intellectual Property
You represent and warrant that: (i) you and your End Users, as applicable, own all right, title and interest to, or have appropriate license or other rights to use, any equipment, data and/or technology interacting with the Services (including your or your End Users’ data and content accessed or transmitted using the Services); (ii) you have and will maintain all rights, consents, and approvals required to grant Edge and its agents or subcontractors license or other rights to access, use, and/or modify your data in connection with Edge’s performance of the Services and will, upon Edge’s written request, provide proof of the same; and (iii) neither your nor your End User’s use of the Services will infringe the intellectual property or other proprietary rights of Edge or any third party nor cause liability to accrue to Edge.
b. Edge Intellectual Property.
You acknowledge that all right, title and interest in any and all technology, including the hardware and software provided by Edge in connection with the Services and any trademarks or service marks of Edge or third parties whose products or services are utilized in connection with Edge’s provision of the Services, belongs to Edge and/or Edge’s licensors. Unless otherwise expressly stated in this Agreement, you shall have no right, title, claim or interest in or to this intellectual property. You may not use, copy, modify or translate this intellectual property or related documentation. Any license provided to you is provided with “Restricted Rights” applicable to private and public licensees, including restrictions on use, duplication or disclosure by the U.S. Government as set forth in this Agreement and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
c. Customer Intellectual Property.
Edge acknowledges that all right, title or interest in any and all your technology that is provided to Edge by your or your End User’s use of the Services incorporated into your technology and any and all of your trademarks or service marks belong to you and/or to your licensors. Unless otherwise expressly stated in this Agreement, Edge shall have no right, title, claims or interest in or to this intellectual property. Edge shall be entitled to use this intellectual property only as necessary or appropriate to provide the Services.
7. Warranties, Disclaimers and Limitations of Liability
a. Customer’s Representations and Warranties.
You represent and warrant that:
- You possess the necessary authority to enter into this Agreement, including all agreements incorporated by reference;
- You own all right, title and interest to, and have the right to use all data, content and other intellectual property accessed or transmitted using the Services;
- You have and will maintain, during the Term, all rights, consents and approvals necessary for Edge to provide the Services to you and your End Users; and
- Your use of the Service, and that of your End Users, will not infringe the intellectual property rights of any third party.
b. Edge’s Representations and Warranties.
Edge represents and warrants that:
- It possesses the necessary authority to enter into this Agreement;
- It owns all right, title and interest to, or has the right to use all data, content and other intellectual property necessary to provide the Services to you; and
- It has and will maintain, during the Term, all rights, consents and approvals necessary for it to provide the Services to you.
No other warranties are contained in this document, and any implied warranties are expressly disclaimed. Warranties for individual Services, if any, will be contained in particular Addenda.
Edge’s sole liability for any malfunctions of or defects in, or any other performance or outage issues associated with, a particular Service shall be the Service Level Agreements (SLA), if any, set forth in the Addenda for that Service, and your sole and exclusive remedy against Edge for such issues shall be the remedies set forth in the applicable SLA.
Under no circumstances shall Edge be liable, either in contract, tort, warranty, strict liability, negligence or under any statute, regulation or any other theory for: (a) unauthorized access, alteration, theft, corruption, or destruction of, or to, your or End User’s computer files, databases, network, transmission facilities or equipment; of (b) the content accuracy or quality of the data transmitted by or through the Services. Customer shall indemnify Edge for any such claim made against it unless based on Edge’s gross negligence.
Although we use and test our backup system regularly and consider it reliable, technical problems could prevent us from being able to restore any particular backup listed in your control panel. We attempt to make backups of customer data to guard against data loss. However, this is not a substitute for your own backup system. We do not guarantee that it will be possible to restore information that has been deleted or damaged, and we charge a Fee to restore information that has been deleted or damaged due to customer error. For these reasons, you agree to maintain your own copy of all data stored on our servers (including files and database contents), and you agree that we are not liable for any loss of data if you fail to maintain your own copy.
UNLESS SPECIFICALLY SET OUT OTHERWISE IN A PARTICULAR ADDENDA, THE SERVICES ARE PROVIDED AS-IS. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. OTHER THAN AS EXPRESSLY SET OUT HEREIN, EDGE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EDGE DOES NOT WARRANT THAT THE SERVICES WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON EDGE’S BEHALF.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD EDGE OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF EDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EDGE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIM OF LIABILITY UNDER THIS AGREEMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE 6 MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS EDGE’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
a. Edge’s Indemnification Obligations to You.
Edge shall indemnify, defend and hold you, your directors, officers and employees (for the purposes of this paragraph only, “you”) harmless from all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including, but not limited to, reasonable attorneys’ fees) and at its own expense agree to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that Edge does not have the right to use all data, content and other intellectual property necessary to provide the Services to you. This right to indemnification is limited to data, content, and other intellectual property that are wholly owned or developed by Edge. It does not include third party components of the Service even if they appear to be owned by Edge. Your right to secure indemnification is conditioned on your notifying us promptly in writing of the claim and giving us full authority, information, and assistance for the defense and settlement thereof. If you fail to give us notice, and that failure materially prejudices our defense, you waive your right to secure indemnification from us. If the claim alleges that you are also liable, you shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in our opinion is likely to occur, you agree to permit us, at our option and expense, either to: (a) procure for you the right to continue using the Service; or (b) immediately terminate our obligations (and your rights) under this Agreement with regard to the affected Service, and refund any prepaid amounts to you.
b. Your Indemnification Obligations to Edge.
You shall indemnify, defend and hold harmless Edge, its affiliates, directors, officers, employees and agents (for the purpose of this paragraph only “Edge”), from and against all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including, but not limited to, reasonable attorneys’ fees) asserted against Edge based on: (i) your use of the Service, or providing it to a third party, or its use by a third party through you in violation of this Agreement; (ii) infringement of any patent, copyright, proprietary right and/or trademark and such a claim is based on your use of the Service, or any data or content transmitted by the Service based on your, or an End User’s, use of it; or (iii) any personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by your gross negligence or willful misconduct, or that of your employees, agents or subcontractors. Edge’s right to secure indemnification is conditioned on its notifying you promptly in writing of the claim and giving you information, and assistance for the defense and settlement thereof. If Edge fails to give you notice, and that failure materially prejudices your defense, Edge waives its right to secure indemnification from you. Edge shall have the right to participate in the defense of the claim at Edge’s expense.
9. Confidential Information
During the Term and for two years thereafter, neither party shall disclose confidential information. Information that is disclosed by one party to the other party, and that is marked “confidential,” or which under the circumstances ought reasonably to be treated as confidential information (including this Agreement), will be treated as confidential by the receiving party. In addition, all information concerning either party’s traffic volume or distribution, pricing, customer lists, network maps, data, traffic, and technology, and financial information shall be confidential information. The recipient of confidential information shall use the confidential information only for the purposes of this Agreement and shall protect it from disclosure using the same degree of care used to protect its own confidential or proprietary Information, but in no event less than a reasonable degree of care. Confidential information may not be disclosed to any person or entity except for the recipient’s employees, contractors, consultants, lenders and/or financial advisors who have a need to know and who are bound in writing to protect the information from unauthorized use or disclosure. Confidential information does not include any information which: (i) was already known by the receiving party free of any obligation to keep it confidential at the time of its disclosure; (ii) becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received from a third person without knowledge of any obligation of confidentiality; (iv) is independently acquired or developed without violating any of the obligations under this Agreement; or (v) is approved for release by written authorization of the disclosing party.Further, the recipient may disclose confidential information pursuant to a judicial or governmental request, requirement, or order. The recipient of such a request shall take all reasonable steps to give the disclosing party sufficient prior notice to contest such request, requirement, or order. Confidential information shall remain the property of the disclosing party and shall be returned to the disclosing party or destroyed upon request of the disclosing party.
The parties agree that the restrictions in this section which have been placed on the use and dissemination of confidential information are reasonable and necessary to protect their individual interests. Accordingly, any breach of these provisions may result in irreparable harm to the owner of the confidential information, for which money damages may not be adequate compensation. As a result, if there is a breach of any provision governing confidential information, the injured party shall be entitled to seek an injunction halting disclosure of this information. This remedy shall be in addition to any other rights it may have at law or equity.
Force Majeure - Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure or delay in performing its obligations if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, any natural calamity, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, labor dispute, disruption or outage of communications, power or other utility, malfunction of or damage to machinery, equipment or software, loss or corruption of data, interruption of or delay in transportation, failure to perform by any supplier or other third party, and act or omission of the other party.
Governing Law - The validity, interpretation, enforceability and performance of this Agreement shall be governed by and construed under the laws of the State of Maryland, without regard to choice of law or conflicts of laws principles. All disputes and other matters relating to the interpretation and enforcement of this Agreement and any other document entered into by the parties shall be brought before the federal and states courts located in Baltimore City, Maryland, and venue shall be proper in Baltimore City, Maryland. Further, neither party shall contest notice from any such court for any reason. The parties each hereby waive trial by jury in any dispute. Customer further acknowledges and agrees that the pricing provided to Customer is based in large measure on the parties’ respective rights, obligations, and limitations as set forth in this Agreement. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
Amendment - Except as otherwise expressly provided herein or in any document incorporated herein by reference, neither this Agreement nor any Service Order or Addenda may be amended except upon the written consent of Customer and an authorized officer of Edge.
Waiver - No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.
Assignment - This Agreement shall be binding on and inure to the benefit of Customer and Edge and their respective successors and assigns.
Paragraph References; Severability - Unless otherwise specifically indicated herein, all references to a “paragraph” herein refer to the applicable paragraph of this Agreement. Any provision in this Agreement which is held to be illegal or unenforceable in any jurisdiction shall be effective to the extent of such illegality or unenforceability without invalidating the remaining provisions and any such illegal or unenforceable provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law.
Entire Agreement - This Agreement, together with its exhibits, addenda, schedules and attachments, and documents incorporated by reference herein, states the entire agreement between the parties and supersedes all previous proposals, negotiations and other written or oral communications between the parties with respect to the subject matter hereof.
No Third-Party Beneficiary. No person or entity other than the parties and their respective successors and assigns is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties.
Relationship of the Parties - Customer and Edge are, and shall remain, independent contractors. Neither party will have the authority to make any representations, claims or warranties of any kind on behalf of the other party or on behalf of such party’s affiliates, agents, subcontractors, licensors or third-party suppliers.
Notices - All notices to you will be sent to the address set out on the Signature Page. Notices will be effective upon receipt. All notices from you to Edge should be addressed as follows:
Edge Hosting, LLC
120 E. Baltimore Street
Baltimore, MD 21202
Counterparts - This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document.
Survival - The following paragraphs shall survive the expiration or termination of this document and/or any Addenda: 6(a) and (b), 8, 9, 10 and paragraphs discussing Limitations of Liability and Disclaimers of Warranty.