MASTER SERVICES AGREEMENT

REVISION – DECEMBER 22, 2023

I. SCOPE; SERVICES

a. Scope. This Master Services Agreement (this “Agreement”) governs all services that Facsimile Communications Industries Incorporated d/b/a Atlantic TomorrowsOffice (d/b/a ACP Technologies, a Division of Atlantic), a Delaware corporation with an office located at 134 West 26th Street, New York, NY 10001 or any of its related entities or “Affiliates” (“us”, “our”, “we” or “Atlantic”), performs for, as well as any licenses or products that we sell or re-sell to you (“You” or “Client,” collectively, with us, the “Parties”) (collectively, the “Services”).
b. Quotes. The Services are not described in this Agreement; instead, you will be provided with an electronic quote, proposal, and/or order (“Quote”) that describe the Services through which you agree to purchase the Services from us. The Quote may have one or more statements of work (each a “SOW”) attached to it that further describe, summarize, and/or define the scope of the Services. By accepting the Quote, you agree to the terms of each SOW and the terms of this Agreement. If you do not agree to the terms of the SOW and this Agreement, then you should not accept the Quote. From this point forward in this Agreement, Quotes and SOWs will be collectively referred to as “SOW.”
c. Conflict. If there is a material difference between the language in a SOW and the language in this Agreement, then the language of the SOW will control, except in situations involving warranties, limitations of liability, or termination of this Master Services Agreement. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it overrides the conflicting provisions of this Agreement.

II. TERM; TERMINATION

a. Term. This Agreement begins on the earliest date on which you accept a SOW and continues until terminated as described in this Agreement. Each SOW will have its own term and will be terminated only as provided herein, unless otherwise expressly stated in the applicable SOW. If a SOW for a recurring Service does not expressly list a term, the SOW will be for twelve (12) months. If a SOW for a recurring Service does not expressly provide a renewal term, it is subject to auto-renewal for successive twelve (12) month terms unless either Party notifies the other Party in writing of its intent to avoid auto-renewal not fewer than ninety (90) days prior to the SOW expiration date (e.g. for the initial term or prior renewal term). The termination of one SOW shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other SOW between the parties.
b. Termination. Except as otherwise expressly permitted under this Agreement, no party will terminate this Agreement if, on the date of termination, a SOW is in progress. In addition, except as expressly provided herein, you will not terminate a SOW prior to the SOW’s natural expiration date. Notwithstanding the foregoing, if we decide to cease providing a service to all of our customers generally, then we may terminate an applicable SOW without cause by providing no fewer than ninety (90) days’ prior written notice to you, unless prevented from doing so by something outside of our reasonable control. You may terminate a SOW (the “Early Termination Right”) after completion of the twelfth (12th) month of the Initial Term, upon notice (the “Early Termination Notice”) establishing a proposed effective early termination date not fewer than ninety (90) days following our receipt of the Early Termination Notice, provided that: (i) you are compliant with your obligations both upon Early Termination Notice delivery and the effective date of termination; and (ii) that you comply with all applicable termination conditions set forth herein, including payment of the Early Termination Charge (defined) coincident with delivery of the Early Termination Notice. The “Early Termination Charge” is the aggregate of: (a) all outstanding charges, invoiced or otherwise arising prior to delivery of the Early Termination Notice, including any past due, current, recurring and non-recurring charges (including any charges arising in connection with delinquent payments); (b) the recurring monthly charges under the terminated SOW (based upon the average of the Services charges or Fees during the preceding 3 months (or such lesser period if fewer than three (3) months of Services were utilized) times the lesser of (i) eighteen months (excluding the notice period) and (ii) the remaining months of the SOW Term; (b) the total remaining Fees attributable to Third Party Services with a term-commitment which may bundled under one of more SOWs (e.g. Email Security, End User Training, Microsoft Licenses, security licenses, BUDR Services, etc.) through the end of the applicable term-commitment; and (c) any other outstanding charges or Fees arising directly or indirectly in connection with a SOW (e.g. Offboarding Fees). We may terminate this Agreement upon ninety (90) days’ notice to you. If no SOW is in progress, then either party may terminate this Agreement without cause by providing the other party with five (5) days prior written notice. Notwithstanding the foregoing or anything to the contrary herein, no expiration or termination of this Agreement (or any SOW entered hereunder) will affect any of the parties’ rights or obligations (including, without limitation, payment obligations) that accrued prior to such termination.
c. Client Activity As A Basis for Termination. In the event that (i) any Client-supplied equipment, hardware or software, or any action undertaken by you, causes the Environment or any part of the Environment to malfunction consequently requiring remediation by us on two (2) occasions or more (“System Malfunction”), and if under those circumstances, you fail to remedy, repair or replace the System Malfunction as directed by us (or you fail to cease the activity causing the System Malfunction, as applicable), or (ii) you or any of your staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then we will have the right, upon thirty (30) days’ prior written notice to you, to terminate for cause this Agreement or the applicable SOW, or, at our discretion and if applicable, amend the applicable SOW to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction. In the event we exercise our termination right under this provision, you will be responsible to pay the Termination Fee.
d. Equipment/Software. Upon termination of this Agreement or applicable SOW for any reason, you will provide us with access, during normal business hours, to your premises or any other locations at which Atlantic–owned equipment or software (collectively, “Atlantic Equipment”) is located to enable us to remove all Atlantic-Equipment from the premises. If you fail or refuse to grant us access as described herein, or if any of the Atlantic Equipment is missing, broken or damaged (normal wear and tear excepted) or any of Atlantic-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items. Certain services may require the installation of software agents in the Environment (“Software Agents”). You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so.
e. Transition; Deletion of Data. In the event that you request our assistance to transition away from our Services, we will provide such assistance (“Service Transfer Assistance”) until the effective date of expiration or termination of the applicable SOW(s), provided, that (i) you are then in compliance with your obligations thereunder and hereunder; and (ii) all fees due and owing to us under any expiring/terminated SOWs (including those arising during the balance of the term thereof (e.g. the Offboarding Fee)) are paid to us in full prior to commencing provision of such Service Transfer Assistance. Notwithstanding the foregoing or anything herein to the contrary, as compensation for the additional time and labor managing and executing Offboarding, you agree to pay us an Offboarding Fee equal to two (2) months’ Services Charges (in addition to the regular monthly Services Charges). You further agree that any Services, including Service Transfer Assistance, after SOW expiration will be chargeable at our then-current hourly rates for such assistance, with up-front amounts to be paid to us as we may require. For the purposes of clarity, it is understood and agreed that any or all of the retrieval and provision of passwords, log files, administrative server information, or conversion of data constitute Service Transition Assistance, subject to the preceding requirements. Unless otherwise expressly stated in a SOW, we will have no obligation to store or maintain any Client data in our possession or control beyond fifteen (15) calendar days following the termination of this Agreement. In the event we agree to store Client Data, You will hold us harmless from, and indemnify us against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, our deletion of your data beyond the time frames described in this section. Except for Service Transfer Assistance, upon termination of the Agreement, Atlantic shall immediately cease to have access to, and any further obligations or ability to support, Client’s network, hardware and software.

III. FEES; PAYMENT

a. Payment Terms. You agree to timely pay, without setoff, reduction or counterclaim, the fees, costs, and expenses (“Fees”) described in each SOW or as hourly time and materials work. Unless expressly provided on a SOW, invoiced charges are due within fifteen (15) days of the invoice date. All payments must be in United States Dollars and are non-refundable.
i. Products, Professional Services and Projects. Payment of (a) 100% of all Products (including project hardware) is required in advance (for orders over $1,000), and (b) at least fifty percent (50%) of project labor (i.e. professional service) is required prior to the commencement of any project or professional service engagement (commencement precedes any lead times or delays agreed upon by the parties).
ii. Monthly Services.
(1) Payment for monthly Services Fees or Charges is due upon the earlier of (i) within fifteen days of the invoice date and (ii) in advance of the beginning of the Services period (no later than the first day of the applicable Service period). Payments made by ACH will be deducted from your designated bank account on the first business day of the month in which the Services are to be provided.
(2) Third Party Services. Third Party Service Fees commence upon our procurement of a Third Party Service on your behalf. Thereafter, monthly Third Party Services Fees are due in the same manner as other monthly Service Fees/Charges.
(3) Consumption-Based Fees. Certain Services selected by Customer may involve consumption-based Fees based upon the amount of storage, bandwidth, memory, computing time and/or backup capacity actually utilized by Customer (collectively, “Resource Consumption”). To the extent applicable, Customer is responsible for any applicable Fees based on Resource Consumption. Resource Consumption Fees and/or related reconciliation Fees are billed in arrears and payable within fifteen (15) days of the invoice date.
b. Taxes and Other Fees. You are responsible for all freight, insurance and sales tax and any other taxes or governmental fees (including, without limitation, import or export duties, sales, use, value add, and excise taxes) associated with the Services. To qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption prior to our issuance of an invoice. All SOWs are subject to annual pricing adjustments, which adjustments will not exceed 9.9% per annum (absent other changes, including, without limitation, those in Environment, scope (e.g. agreement type/entitlements) or volume (e.g. user/license count)).
c. Fee Disputes. If you have a good faith basis to dispute any portion of an invoice, you shall: (a) submit a written dispute notice (including substantiating evidence) within fifteen (15) days following the invoice date; and (b) timely pay all undisputed charges. To the extent you comply with the foregoing, the Parties will use commercially reasonable efforts to reasonably promptly investigate and resolve the dispute. Any invoiced charges you do not disputed in strict accordance with the preceding fee dispute process are “undisputed” and you waive your right to dispute such charges thereafter. A re-connect fee may be charged to you if we suspend the Services due to your nonpayment. Time is of the essence in your performance of all payment obligations.
d. Pricing Information/Availability. We reserve the right to make adjustments to all pricing, Products and Services offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors, expansions in scope or volume or any other similar change. We reserve the right to adjust charges should you reduce, limit or eliminate your technology support resources and/or employee positions existing at the time of execution of an SOW. All orders are subject to Product availability and the availability of Personnel to perform Services. If Services are performed on a time and material basis, any estimates provided by us are for planning purposes only.
e. Nonpayment. Should you fail to pay us for any undisputed charges as and when due (and after a ten (10) day grace period), we have the right (but not the obligation), without notice to you, to elect one or more of the following remedies (in our sole discretion): (a) withhold performance under this Agreement or any or all SOWs (during which withholding your payment obligations will continue to accrue); (b) terminate this Agreement and accelerate your payment obligations; (c) commence collection activities for all sums due and/or to become due hereunder, including collection costs; (d) pursue any other remedies at law or in equity. A $25.00 late fee will be assessed against invoices more than seven (7) days overdue, and finance charges (16% APR) will be imposed on balances thirty (30) days past due and each month thereafter until the balance is paid in full. A $150.00 fee will be assessed on any checks not honored by our bank.

IV. GENERAL REQUIREMENTS AND CUSTOMER RESPONSIBILITIES

a. Environment. For the purposes of this Agreement, “Environment” means, collectively, any computer network (cloud-based or otherwise), computer system, peripheral or device (virtual or physical) installed, maintained, monitored, or operated by us pursuant to a SOW. Where applicable, at our request, you agree to make available to us all existing documentation relating to the Environment and/or any applications therein. To avoid a delay or negative impact on our provision of the Services, during the term of each SOW you agree to refrain from modifying or moving the Environment or installing software in the Environment, unless we perform on your behalf or otherwise expressly authorize such activity.
b. Requirements. At all times, all software on the Environment must be genuine and properly licensed, and you agree to provide us with proof of such licensing, upon our request. If we require you to implement certain minimum hardware or software requirements in a SOW (“Minimum Requirements”), you agree to do so as an ongoing requirement of us providing our Services to you. As a further Minimum Requirement, you agree to back up all data (in accordance with prevailing industry best practices) at regular increments of not fewer than once every twenty-four (24) hours.
c. Updates. Patches and updates to hardware and software (“Updates”) are created and distributed by third parties—such as equipment or software manufacturers—and may be supplied to us from time to time for installation into the Environment. If required under a SOW, we will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) we do not warrant or guarantee that any Update will perform properly, (ii) we will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, and (iii) we reserve the right, but not the obligations, to refrain from installing an Update until we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware.
d. Third Party Support. If, in our discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on your behalf and invoice you for all fees and costs involved in that process.
e. Advice; Instructions. You agree to request service in manner designated by us. From time to time, we may provide you with specific advice and directions related to the Services. (For example, our advice or directions may include increasing the Environment’s server or hard drive capacity or replacing obsolete equipment.). You are strongly advised to promptly follow our advice which, depending on the situation, may require you to make additional purchases or investments in the Environment or the environment in which the Environment is maintained, at your sole cost. We will not be responsible for any problems or issues (such as downtime or security-related issues) caused by your failure to promptly follow our advice, and any services necessitated by such failure are Excluded Services. If, in our discretion, your failure to follow or implement our advice renders part or all of the Services economically or technically unreasonable to provide, then we may terminate the applicable SOW for cause by providing notice of termination to you. Unless specifically and expressly stated in a SOW, any services required to remediate issues caused by your failure to follow our advice or directions, or your unauthorized modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum Requirements, are out-of-scope and not covered under any SOW.
f. Prioritization. All Services will be performed on a schedule, and in a prioritized manner, as we deem reasonable and necessary.
g. Authorized Contact(s). You will designate an Authorized Contact for communications and related actions between us and you. Your Authorized Contact will be familiar with generally familiar with your systems and issues and will be generally responsive to our questions and requests and otherwise available for periodic meetings. We will be entitled to rely on any directions or consent provided by your personnel or representatives who are express or apparently (by title/role) authorized to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable SOW, then your Authorized Contact will be the person(s) (i) who signed this Agreement, (ii) who signed the applicable SOW; and/or (iii) the point of contact. If you desire to change your Authorized Contact(s), please notify us of such changes in writing which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.
h. Excluded Services. Our obligations under this Agreement do not include and we shall not be liable for nor required to perform Services involving, resulting from or otherwise necessitated by (“Excluded Services” or “Exclusions”): (a) third party products not provided by us under a SOW; (b) any software that has been altered or modified by anyone other than us; (c) your ISP issues or bandwidth limitations; (d) your failure to grant, or delays in granting, any approval, access or other assistance required or requested hereunder; (e) your improper acts, omissions, negligence, willful misconduct or failure to comply with your responsibilities or obligations: (i) hereunder (including under a SOW), (ii) under applicable third party license, (iii) under relevant support agreements and/or (iv) under applicable law; (f) excluding a Backup Appliance (pursuant to a BUDR Ordering Document), your hardware and software replacement costs and/or any costs associated with your hardware and/or software replacement; (g) any products for which the OEM has ended support and/or deemed End of Life (EOL Products); (h) Your data, including data recovery, repair or restoration (unless otherwise provided on an Ordering Document) or (i) any other services which are not expressly covered under a valid SOW.
i. Insurance. If you are supplied with Atlantic Equipment (defined below), you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of that equipment. Atlantic must be listed as an additional insured on any policy acquired and maintained by you under this Agreement, and the policy will not be canceled or modified during the term of the applicable SOW without prior notification to Atlantic. Upon Atlantic’s request, you agree to provide proof of insurance to us, including proof of payment of any applicable premiums or other amounts due under the insurance policy.

V. COVERAGE AND ACCESS

Except as otherwise expressly provided on a SOW, all Services will be provided to you by us between the hours of 7:00am and 7:00pm Eastern Standard Time, Monday through Friday (excluding holidays) (“Normal Business Hours”). We will make reasonable efforts to respond to emergency requests. As a condition to your receipt of Services, where applicable, you hereby grant us the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment as and to the extent necessary to enable us to provide the Services. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for us to provide Services to the Environment and, if applicable, at your designated premises, both physically and virtually. Proper and safe environmental conditions must be provided and assured by you at all times. We shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve. Your failure to provide required access, as and where necessary, and/or to otherwise comply with your obligations hereunder, may, at our reasonable discretion, constitute waiver of any scheduled Services and/or void Agreement coverage until such time as such Services are completed. Additionally, you agrees to hold us harmless from any losses resulting from your failure to provide such access or to otherwise comply with your obligations hereunder, which includes, without limitation, compensating us at our prevailing hourly rate for travel, waiting time and/or other unproductive time.

VI. LIMITED WARRANTIES; LIMITATIONS OF LIABILITY

a. Limited Warranties. We represent: (a) we have the right, power and authority to enter into this Agreement and to perform our obligations hereunder; and (b) we own or have acquired the requisite rights to our wholly-owned property.
b. Hardware / Software Purchased Through Atlantic. We do not manufacture any of the Third Party Products resold or otherwise provided to you hereunder. All hardware, software, peripherals or accessories purchased through us (“Third Party Products”) are nonrefundable once the product is obtained from our third party provider or reseller. All Third Party Products are pro¬vided “as is” and without any warranty whatsoever as between us and you (including but not limited to implied warranties). We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you, but will have no liability whatsoever for the quality, functionality or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. If you make a prior refund request and the third party provider grants such request, then the third party provider’s or reseller’s return policies shall apply. We do not guarantee that purchased Third Party Products will be returnable, exchangeable, or that re-stocking fees can be avoided. You will be responsible for the payment of all re-stocking or return-related fees charged by the third party provider or reseller.
c. Disclaimer of Warranties/Liability Limitations. This paragraph limits the liabilities arising under this Agreement or any SOW and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that we would not enter into any SOW or this Agreement unless we could rely on the limitations described in this paragraph. Except as otherwise expressly set forth in this Agreement, we specifically disclaim all warranties of any kind, whether express, statutory or implied, including, but not limited to, all warranties of merchantability, fitness for a particular purpose, title and non-infringement and any warranties arising from course of dealing, course of performance or trade usage. To the maximum extent permitted by law, we shall not be liable for any indirect, special, exemplary, consequential, or punitive damages, such as 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, or the Services, or for 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 SOW, even we have been advised of the possibility of such damages.
d. To the maximum extent permitted by law our total, aggregate liability to you for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to us for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued.

VII. CONFIDENTIALITY

a. Defined. For the purposes of this Agreement, Confidential Information means any and all non-public information provided to either Party (the “Disclosing Party”) to the other Party (the “Recipient”), including: (a) information marked or disclosed as confidential; (b) any Client customer information furnished or disclosed; (c) information traditionally recognized as trade secrets; and (d) financial, business and economic information (including, without limitation, financial statements, discoveries, inventions, developments, analyses, proposals, source codes). Confidential Information will not include information that: (i) has become part of the public domain through no act or omission by us, (ii) was developed independently by us, or (iii) is or was lawfully and independently provided to us prior to disclosure by you from a third party.
b. Use of Confidential Information. The Recipient shall only use Confidential Information for the purpose of performing its obligations under this Agreement and not for any other purpose. The Parties agree to safeguard such Confidential Information against unauthorized disclosure to others with at least the same degree of care as it exercises with its own information of a similar nature, but in no event less than a commercially reasonable level of care. The Recipient will not knowingly disclose such information to any third party for any purpose except (i) as expressly authorized by the Disclosing Party in writing, or, in our case (ii) as needed to fulfill our obligations under this Agreement.
c. Compelled Disclosure. If the Recipient legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, we will immediately notify you in writing of such requirement so that you may seek a protective order or other appropriate remedy and/or waive our compliance with the provisions of this Section. We will use its best efforts, at your expense, to obtain or assist you in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, we may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that we have been advised, by written opinion from our counsel, that we are legally compelled to disclose.

VIII. ADDITIONAL TERMS; THIRD PARTY SERVICES

a. Third Party Services. Portions of the Services may be acquired from, or rely upon the services of, third party manufacturers or providers, such as, without limitation, data hosting services, help desk services, domain registration services, and data backup/recovery services (“Third Party Service”). Not all Third Party Services may be expressly identified as such in a SOW, and at all times we reserve the right to utilize the services of any third party provider or to change third party providers in our sole discretion as long as the change does not materially diminish the Services to be provided to you under a SOW. We will not be responsible for, and you will hold us harmless from, the failure of any third-party provider or manufacturer to provide Third Party Services to us or to you.
b. EULAs. Portions of the Services (including hosted solutions) may involve Third Party Services which require you to accept or otherwise comply with the terms of one or more third party end user license agreements (“EULAs”). If the acceptance of a EULA is required in order to provide the Services to you, then you hereby grant us permission to accept the EULA on your behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. Notwithstanding anything to the contrary herein, by utilizing any such Third Party Services, you agree to be bound by any terms and conditions applicable to such Third Party Services (e.g. EULAs) and to look only to the applicable Third Party Services provider (e.g. Microsoft) for the enforcement of the terms of such EULAs. If, while providing the Services, we are required to comply with a third-party EULA and the third party EULA is modified or amended, we reserve the right to modify or amend any applicable SOW with you to ensure our continued compliance with the terms of the third party EULA. We reserve the right to suspend or terminate your access to Third Party Services in the event that we have reason to believe that you Third Party Services are being accessed, used or otherwise manipulated in a manner that violates any Law, EULA or poses a threat to the integrity or security of our computer servers or any third party server.
c. Data Loss. Under no circumstances will we be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) our failure to backup or secure data from portions of the Environment that were not expressly designated in the applicable SOW as requiring backup or recovery services. Unless expressly stated in a SOW, we do not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner.
d. BYOD. Depending on the Service being provided, portable devices or devices that intermittently connect to the Environment may not receive or benefit from the Services while the devices are detached from or unconnected to the Environment. We will not be obligated to provide the Services to any mobile device or temporarily-connected device unless that obligation is specifically stated in a SOW. Occasional services or guidance provided by us related to BYOD devices will not expand our obligations or the scope of a SOW, or obligate us to continue to provide any additional services or guidance for the BYOD devices.

IX. OWNERSHIP

a. General. Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned or licensed by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property to the other party. All Intellectual Property rights associated with any idea, concepts, techniques, processes or other work product created by us during the course of performing Services shall belong exclusively to us, and you shall have no right or interest therein.
b. Managed Services Tools. Notwithstanding anything to the contrary in this Agreement, We will retain all right, title and interest in and to all software development tools, know-how, methodologies, processes, technologies or algorithms used in providing the Services, which are based on trade secrets or proprietary information of our or are otherwise owned or licensed by us. Licenses will not be deemed to have been granted by either Party to any of its patents, trade secrets, trademarks or copyrights except as otherwise expressly provided in this Agreement. Nothing in this Agreement with require us or you to violate the proprietary rights of any third party in any software or otherwise.
c. Products. You understand that all software provided to you is licensed, and not sold, to you unless otherwise expressly stated in an applicable SOW.
d. Our Equipment (Atlantic Equipment). We may provide equipment owned by us (Atlantic Equipment) to be housed or used at your premises (typically for break-fix for an interim period while an order is placed/pending). Such equipment may include, without limitation, routers, desktops, servers, software and remote backup devices. You shall treat such equipment with the same care and security as similar equipment you own. You agree to return such equipment upon our request. You will be liable for failure to return such equipment as requested and/or for any damage or loss to such equipment. If any such loss, damage or non-return of equipment occurs, we will invoice you (and you will pay) the current replacement cost of the equipment plus shipping and handling and related installation charges. Unless otherwise noted in a SOW or Order, all Atlantic Equipment is licensed to you, and is neither owned by you nor leased to you. For avoidance of doubt, upon the expiration of an applicable SOW, your license to use the Atlantic Equipment shall immediately terminate, and thereafter all Atlantic Equipment must be returned to us immediately at your expense. All configurations on the Atlantic Equipment are our proprietary information and will not be circumvented, modified, or removed by you without our prior written consent.

X. ARBITRATION

Except for undisputed collections actions to recover fees due to us (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) or if there is no AAA arbitrator available within a ten (10) mile radius of our office, then by such other arbitration venue as determined by us, pursuant to that venue’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in our office in West Seneca, New York. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

XI. MISCELLANEOUS

a. Disclosure. You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services.
b. Security. You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are purposely or intentionally downloaded or installed into the Environment. We do not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a SOW, the recovery of Impacted Data is not included in the scope of a SOW. As such incidents can occur even under a “best practice” scenario, you are required to obtain and maintain at all times, and at your cost, cyber insurance covering at a minimum, the theft or misuse of private or confidential information, the breach of networked and managed security systems, and any failure to prevent the transmission of computer malware.
c. Compliance. Unless otherwise expressly stated in a SOW, the Services are not intended, and will not be used, to bring Client into full regulatory compliance with any rule, regulation, or requirement that may be applicable to Client’s business or operations. Depending on the Services provided, the Services may aid Client’s efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution. Compliance involves internal policies and other elements outside the scope of the Services. As such, Customer remains fully responsible for its compliance with applicable regulations.
d. Non-Solicitation. You acknowledge that we have a substantial investment in our employees that provided Services to you, and that such employees are subject to our control and supervision. In consideration of the investment, you agree that you will not, individually or in conjunction with others (e.g. recruiters, consultants or other contractors/partners), during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, directly or indirectly solicit, induce or influence any of our employees or subcontractors to discontinue or reduce the scope of their business relationship with us, or recruit, solicit or otherwise influence any of our employees or contractors to discontinue his/her employment or agency relationship with us. In the event of a violation of the terms of the restrictive covenants in this section or if any employee involved with delivering Services to you terminates his or her employment with us (regardless of the reason for termination) and is employed by you (or an affiliate or service provider of your), you shall immediately pay us as liquidated damages and not as a penalty an amount equal to Two Hundred Fifty percent (250%) percent of that employee’s (or subcontractor’s) first year of base salary or wage paid by us (including any signing bonus). You acknowledge and agree that our damages from your breach of this provision would be very significant, but difficult or impracticable to determine. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to our employees will be deemed to be a material breach of this Agreement, in which event we shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.
e. Collections. If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees (regardless of whether we commence an action), we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.
f. 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 will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes our obligations hereunder. We may, without notice, subcontract our obligations under any SOW.
g. Amendment. Unless otherwise expressly permitted under this Agreement, no amendment or modification of this Agreement or any SOW will be valid or binding upon the parties unless such amendment or modification is originated in writing by us, specifically refers to this Agreement or the SOW being amended, and is accepted in writing (email or electronic signature is acceptable) by you.
h. Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, 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.
i. If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision will 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 will be valid and enforceable to the fullest extent permitted by applicable law. To the extent any provision of this Agreement is judicially determined to be unenforceable, a court of competent jurisdiction may reform any such provision to the extent necessary to render it enforceable. The provisions of this Agreement will, where possible, be interpreted so as to sustain legality and enforceability.
j. Other Terms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless such terms or conditions are expressly incorporated into a duly executed SOW, or unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
k. 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, will not constitute an Agreement to waive such terms with respect to any other occurrences.
l. Merger. This Agreement, together with any and all Quotes and SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior superseded agreement are not nullified by this Agreement and remain in full force and effect. No representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. We will not be bound by any of our agents’ or employees’ representations, promises or inducements if they are not explicitly set forth in this Agreement or any Quote or SOW. Any document that is not expressly and specifically incorporated into this Agreement or SOW will act only to provide illustrations or descriptions of Services to be provided and will not modify this Agreement or provide binding contractual language between the parties.
m. Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, 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, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
n. Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
o. Insurance. Each Party will maintain, at its own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation, general liability and cyber-insurance. We agree to maintain a general liability policy with a limit not less than $1,000,000 per occurrence. All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party by certified mail.
p. Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to, the laws of the state of New Jersey.
q. 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.
r. 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 will be used to modify, interpret, supplement, or otherwise alter in any manner the terms of this Agreement.
s. Business Day. If a time period set forth in this Agreement expires on a day other than a business day in the contiguous United States of America, such period will be extended to and through the next succeeding business day in Eastern Standard Time.
t. Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notwithstanding the foregoing, any notice from you to us regarding (a) any alleged breach of this Agreement by us, or (b) any notice of termination of this Agreement or any SOW, must be delivered to us either by U.S. mail or fax, unless such requirement is expressly and specifically waived by us. Except as indicated in the preceding sentence, all electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.
u. Independent Contractor. We are an independent contractor, and not your employer, employee, partner, or affiliate.
v. Data Access/Storage. Depending on the Service provided, a portion of your data may occasionally be accessed or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify our standard access or storage procedures.
w. Counterparts. The parties intend to sign, accept and/or deliver any Quote, this Agreement, SOW or any amendment in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Quote, this Agreement, any SOW or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).

Hourly Rate Schedule/Time & Materials Billing

Terms and Conditions
a. All Out of Scope services performed remotely by Atlantic will be billed at the applicable Hourly Rate, subject to the applicable multiplier below, if any, in quarter (1/4) hour increments with a quarter hour (1/4) minimum.
b. All Out of Scope services performed on-site by Atlantic will be billed at the “Services Addendum Rate” (or “Agreement Rate”) specified in the relevant Ordering Document, subject to the applicable multiplier below, if any, in one (1) hour increments with a four¬ (4) hour minimum.
c. “Rate Multipliers”

Note: Rates will automatically increase on an annual basis by an amount not to exceed 9.9% of the rates previously in effect. Annual rate increases will become effective on the first day of each new calendar year.