These Terms and Conditions (the “Agreement”) apply to any and all work performed, product provided or sold, or invoice issued by EZ MSP, LLC, a New York limited liability company that maintains an office for business at 7 Odell Plaza, Suite 134, Yonkers, NY 10701 (“Company” or “EZMSP”), and the entity (“Client”) whose name, authorized signatory, and contact information appear in the signature block of the applicable Terms and Conditions and Estimate Acceptance Form (“Acceptance Form”). The Agreement shall be effective as of the date that the Acceptance Form is executed by Client on EZMSP’s online sales portal (“Effective Date”) and shall renew and be updated or modified from time to time as permitted herein.

This version of the Agreement was published on November 13, 2020. It applies to any and all invoices, estimates, SOWs, and other work agreed to, contracted for, or provided on or after December 13, 2020.

 1)           SCOPE OF SERVICES.  Company agrees to provide Client with professional information technology services and/or technical advice as set forth in one or more applicable statements of work (each, a “SOW”) that may be executed from time-to-time by both parties under this Agreement (collectively, the “Services”).  To be effective, each SOW shall reference this Agreement, and, when accepted by Client via EZMSP’s online sales portal, shall automatically be deemed a part of, and governed by the terms of, this Agreement.  Each SOW is enforceable according to the terms and conditions contained therein, but in the event of a conflict between the language of this Agreement and any SOW, the language of the Agreement shall control.   Company shall perform all Services at a level no less than the industry standard for the managed service provider industry at the time that the Services are performed, as well as those service levels explicitly described in this Agreement or any relevant SOW. Company shall not be obligated to perform any Services unless and until a SOW has been executed by both parties and any payments required by the SOW prior to commencing delivery of the Services have been received by Company.

1. For the purposes of this Agreement, the term “System” shall mean, collectively, any of Client’s computer network, computer system, peripheral or device installed, maintained, monitored or operated by Company pursuant to this Agreement or SOW covered by this Agreement.  “Managed Peripherals” shall mean those portions of the System that are managed by Company for Client pursuant to a SOW.  All other capitalized terms shall have the definitions ascribed to them in this Agreement.
2. Modifications.  Client shall promptly notify Company of any and all of the following modifications to the System prior to making those modifications: (i) installing any software on, or installing hardware in or removing software from or modifying any hardware of or software on, the System, or (ii) moving the System, in part or in whole, to any location other than the location(s) at which Company installed the components comprising the System.  Client’s failure to notify Company 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 or to perform any Services.
3. Network Architecture.  Client understands and agrees that the Services and fees described in any SOW are based upon the architecture of Client’s network as that architecture exists as of the Effective Date of this Agreement (or as of the effective date of the relevant SOW, as the case may be).  In the event that Client’s network is subsequently modified by the addition of new hardware or software, or the removal of any hardware or software, Company may require modifications to the scope of Services and/or the fees charged to Client.
4. Third Parties.  Client shall not permit any third party to modify, enhance, replace, access or remove the System or any part thereof without first notifying Company.  Except as otherwise specifically provided in this Agreement, Company shall have no obligation to reimburse Client for any costs associated with any services performed by persons or entities other than Company.
5. 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, Company cannot and does not warrant or represent that Company will be able to monitor or manage all components comprising the System.  In the event that Company is unable to monitor or manage a particular component, Company shall notify Client and recommend workaround(s) to remediate that situation.  Company shall not be responsible for any issues that arise from or that are related to components that are incompatible generally with the System, or that Company notifies Client are incapable of being monitored or managed by Company.
6. Requirements.  At all times, Client shall ensure that all software on the System is genuine and licensed for all purposes for which Client uses the software and in connection with which Company is to perform Services.   Client agrees to provide Company with proof of such genuineness and licensing upon Company’s request.  In addition, as a condition to the provision of Services, Company may require that the System meet certain minimum requirements (“Minimum Requirements”).  Such Minimum Requirements may include Client maintaining and implementing up-to-date, enterprise level firewall, anti-virus, anti-spyware and/or SPAM solutions.  It shall be Client’s responsibility, at its expense, to ensure that the Minimum Requirements are met at all times during the term of this Agreement, unless Company agrees to perform such activities pursuant to a mutually executed SOW.
7. Passwords.  In order to provide the Services, upon Company’s request, Client shall provide administrative-level passwords to the System or to the Managed Peripherals (“Passwords”) to Company.  Unless otherwise directed to do so in writing by Client’s Authorized Contact, Company shall not disclose Passwords to any of Client’s employees, or to any person or entity acting on behalf of Client.  Company shall be held harmless against any downtime, or any 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 Company when requested to do so.
8. Virus Protection / Malware.  Services related to the detection, remediation and/or removal of viruses, malware and/or spyware (collectively, “Malware”) shall be provided by Company only as expressly stated in a SOW.  Client has been advised and acknowledges that it understands that no Malware solution is 100% effective at detecting or removing all Malware.   Company does not warrant or guarantee that all Malware will be prevented, detected, or removed, or that the System will be free from errors, damage, or downtime due to Malware infiltration.
9. Non-Exclusive.  The Services provided under this Agreement are not exclusive to Client, and Company may provide the same or similar services to Company’s other clients. 

2)            TERM. The term (the “Term”) of this Agreement shall begin on the Effective Date, and shall automatically renew on the anniversary of the Effective Date unless terminated in accordance with the provisions of Section 10 of this Agreement. The term of each SOW shall be as indicated in the respective SOW.

3)            FEES; HOURLY WORK.

1. Client shall pay Company the fees described in each SOW (“Fees”).  If Company is requested, and agrees, to perform work beyond the scope of services in a SOW, then Company shall bill for such services on an hourly basis (“Hourly Work”), in fifteen (15)-minute increments at Company’s then current hourly rate.  The performance and results of Hourly Work shall be governed by the terms of this Agreement.
2. Unless otherwise specified in an SOW or agreed to by the parties, pricing offered for any recurring service or product is valid for 1 year.  After one year, following notice to Client, pricing for recurring services may change. 

4)            PAYMENT.  Unless otherwise stated in a SOW, all Fees shall be due and payable by Client in advance of the calendar month in which the Services are to be provided to Client, and subject to the 10 day notice and cure period of section 10(c), Company may suspend any Services for which agreed upon payments have not been received.  Payments made by ACH shall 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 or Fees paid pursuant to a service plan, payment must be made in advance of work performed, unless other arrangements are agreed upon in the applicable SOW.  Late payments 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.  A re-connect fee may be charged to Client in the event that Company suspends the Services due to nonpayment by Client.  Client shall be liable for all of Company’s 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.  Subject to Company’s compliance with section 10(c),  TIME IS OF THE ESSENCE IN THE PERFORMANCE OF ALL PAYMENT OBLIGATIONS BY CLIENT.

5)            AUTHORIZED CONTACT PERSON.  For each SOW, Client shall designate one or more authorized contact person(s) (each, an “Authorized Contact”) with whom Company will conduct Service-related communications.  Each Authorized Contact shall be a point of contact for Company, and shall be authorized to provide, modify and approve on Client’s behalf, work direction and Statements of Work.  Client understands and agrees that Company shall be permitted to act upon the direction and apparent authority of each Authorized Contact, unless and until Company receives written notice from Client (as described below) that an Authorized Contact is no longer authorized to act on Client’s behalf.  If during the Term of this Agreement, Client wishes to add or remove an Authorized Contact or modify an Authorized Contact’s information or authority, Client must notify Company 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.

7)            WARRANTIES; LIMITATIONS OF LIABILITY. 

1. Unless otherwise expressly stated 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.”  Company 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 for such Third Party Products.  Unless otherwise expressly stated in a SOW, all Third Party Products are provided WITHOUT ANY WARRANTY as between Company and Client, and Company shall not be held liable as an insurer or guarantor of the performance, uptime, usefulness or quality of Third Party Products.
2. Unless otherwise expressly stated in a SOW, Company assumes no liability for failure of equipment or software or any losses resulting from such failure.
3. Client warrants and represents that it shall not use the System for any purposes or activities or in any manner that violates the laws of any applicable jurisdiction, including but not limited to the sending of unsolicited, commercial electronic messages (e.g., SPAM).  Client also represents and warrants that it will not  violate any law, regulation, rule, or industry standard that is directed to the protection of any data privacy rights of any individual or entity and will obtain all required consents to collect, store and use all data to which Company has access in order to performs the Services. Client further represents and warrants that it shall not upload, post, transmit or distribute (or permit any of its authorized users to upload, post, transmit or distribute) any prohibited content, which is generally content that (i) is obscene, illegal, or intended to advocate or induce the violation of any law, rule or regulation, or (ii) violates the intellectual property rights or privacy rights of any third party, or (iii) mischaracterizes Client, and/or is intended to create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication, or (iv)  interferes or disrupts the services provided by Company or the services of any third party, or (v) contains viruses, trojan horses or any other malicious code or programs.
4. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUE, LOSS OF PROFITS, LOSS OF 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, OR FOR ANY LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, OR FOR ANY BREACH OF THIS AGREEMENT AND ANY SOW 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 RELATED TO CLAIMS FROM THIRD-PARTIES (INCLUDING BUT NOT LIMITED TO GOVERNMENTAL FINES AND PENALTIES), 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, NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF THE AGGRIEVED PARTY’S ACTUAL DIRECT DAMAGES NOT TO EXCEED THE GREATER OF THE AMOUNT OF FEES PAID BY CLIENT OR DUE FROM CLIENT TO COMPANY FOR THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED.  IT IS UNDERSTOOD AND AGREED THAT THE COSTS OF HARDWARE OR SOFTWARE (IF ANY) PROVIDED TO CLIENT UNDER THIS AGREEMENT, RIGHTS TO RECEOVER ATTORNEYS’ FEES AND COURT COSTS UNDER SECTION 4 OF THIS AGREEMENT, AND RIGHTS FOR RECOVERY UNDER SECTION 15(i) OF THIS AGREEMENT SHALL NOT BE INCLUDED IN THE CALCULATION OF THE LIMITATION OF DAMAGES DESCRIBED IN THE PRECEDING SENTENCE.

8)            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, including but not limited to any and all breaches of representations and warranties contained herein.   Unless otherwise provided in a SOW, Client indemnifies Company for all claims alleging or related to infringement or violation of third party intellectual property rights for acts performed within the scope of a SOW, unless Company has actual knowledge of said third party intellectual property rights and knowingly violates said third party intellectual property rights.

9)            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, modules, and derivative works thereof, computer code, data, databases, inventions,  patent rights, copyright rights, rights in industrial designs, design rights, trade secrets, trademarks, service marks, and trade dress rights,  developed by the Creating Party (collectively, “Creating Party’s IP”). The Creating Party’s IP shall 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 Company 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 Company’s intellectual property, and (iii) do not negatively impact the security or integrity of any of Company’s equipment, or the integrity or implementation of the Services.  Client grants Company a license to use its intellectual property to the extent reasonably required to carry out Company’s obligations in any SOW.  Each party’s limited right to use the other party’s intellectual property as described herein automatically terminates upon the termination of this Agreement, except that to the extent that Client modifies any of Company’s intellectual property and generates a new or derivative intellectual property right, Company shall receive a royalty-free non-exclusive, non-sublicenseable license to the new or derivative intellectual property right.  

10)          TERMINATION.

1. Termination of a SOW.  Unless otherwise stated in a SOW or as provided for in this Section 10, no SOW may be terminated without cause prior to its natural expiration date.  

2. Termination of this Agreement.
   1. Without Cause.  Either party may terminate this Agreement for any reason by providing the other party with thirty (30) days prior written notice.  Termination of this Agreement without cause shall not act to terminate any then-existing SOW, and such SOW shall continue to be governed by the terms of this Agreement through its natural expiration or termination date.
   2. Consent.  The parties may mutually consent, in writing, to terminate this Agreement at any time.
3.  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 for all breaches other than for nonpayment by Client and within ten (10) days for nonpayment by Client, following receipt of written notice from the non-Defaulting Party. 

4. Exceptions.  Notwithstanding any provision to the contrary:

   1. Except for the case of a material breach by Company that Company has not cured within the time period of Section 10(c), termination of this Agreement or  any SOW shall not relieve Client of its obligations to pay Company  in full (i) for all outstanding Fees that accrued, and that will accrue, through the date of termination of the SOW or this Agreement, as applicable, and (ii) for all amounts that Company advanced on Client’s behalf (i.e., hard costs, licensing fees, etc.) pursuant to a SOW.
   2. 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 Company, then Company shall have the right, upon ten (10) days prior written notice to Client, to terminate this Agreement or any one or more SOWs or, in Company’s discretion, to amend the Services to eliminate from coverage any System Malfunction.

5. Equipment Removal.  Upon termination of this Agreement for any reason, Client shall provide Company with access, during normal business hours, to Client’s premises (or any other locations at which Company-owned equipment is located) to enable Company to remove all Company-owned equipment from such premises (if any).  If Client fails to grant Company access as described herein, or if any of the Company-owned equipment is broken (normal wear and tear excepted) or damaged, Company shall have the right to invoice Client for, and Client hereby agrees to pay, the full replacement value of any and all Company-owned equipment located at Client’s premises.

6. Transition.  In the event that Client requests Company’s assistance to transition to a new service provider, Company shall do so provided that (i) all Fees due and owing to Company are paid to Company in full prior to Company providing its assistance to Client, and (ii) Client agrees to pay Company its then-current hourly rate for such assistance, with upfront amounts to be paid to Company as agreed upon between the parties.  Unless otherwise expressly stated in a SOW, Company shall have no obligation to store or maintain any Client data in Company’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement.  Company 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, Company’s deletion of Client data beyond the time frames described in this Section 10(f).
7. 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 arising from or related to, directly or indirectly, the termination of this Agreement for any reason, or for any compensation, reimbursement, losses, expenses, costs or damages arising from or relating to Company’s disclosure of information pursuant to any valid legal request to which Company is required to comply.  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.

11)          UPTIME; REPORTING; REMEDIES.

1. Uptime.  Company 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 in Section 11(b)), or (ii) client-side downtime (described below in Section 11(c)), or (iii) a force majeure event (described in Section 15(i)).  Fees shall continue to accrue during any of the foregoing, unless otherwise waived by Company in its discretion.
2. Scheduled Downtime.  For the purposes of this Agreement, “Scheduled Downtime” shall mean those hours, as determined by Company, but shall not occur between the hours of 9 AM and 5 PM Monday through Friday without Client’s authorization or unless exigent circumstances exist, during which time Company shall perform scheduled maintenance or adjustments to its network.
3. Client-Side Downtime.  Notwithstanding any provision to the contrary, Company shall not be responsible for any delays or deficiencies in the Services to the extent that such delays or deficiencies are caused by Client’s action or omissions or by the failure of any system or service provided to Client by a third party.  In the event that such delays or deficiencies occur, Company shall be permitted to extend any relevant deadline as Company deems necessary to accommodate such delays or deficiencies.
4. Exemption.  The parties acknowledge and agree that for the first ten (10) business days following the Effective Date, the Uptime commitment described in this Section 11 shall not apply to Company, it being understood that there may be unanticipated downtime or delays due to Company’s initial startup activities with Client (the “Startup Exception”). 

12)          CONFIDENTIALITY. 

1.  Defined.  For the purposes of this Agreement, “Confidential Information” shall mean any and all non-public information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), including but not limited to Disclosing Party’s computer code, customer data, customer lists, internal 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 Receiving Party, (ii) was developed independently by Receiving Party, or (iii) was provided to Receiving Party prior to disclosure by Disclosing Party, by a third party who to Receiving Party’s knowledge, is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting or disclosing such information.
2. Use.  Receiving Party shall keep Disclosing Party’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 Disclosing Party in writing, or (ii) as needed to fulfill Receiving Party’s obligations under this Agreement or any SOW.  If Receiving Party is required to disclose the Confidential Information to any third party as described in part (ii) of subsection 12(a) above, then Receiving Party shall ensure that such third party is obligated to keep the information confidential under terms that are at least as restrictive as those stated in this Section 12. 
3. Due Care.  Receiving Party shall exercise at least the same degree of care with respect to the Confidential Information that it receives from Disclosing Party as Receiving Party 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.
4. Compelled Disclosure.  If Receiving Party is compelled by law (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, Receiving Party shall  to the extent reasonably practical, promptly notify Disclosing Party in writing of such requirement so that Disclosing Party may seek a protective order or other appropriate remedy and/or waive Receiving Party’s compliance with the provisions of this Section 12, and if not reasonably practical prior to disclosure then as soon as reasonably practical after disclosure, provided that Receiving Party takes reasonable steps to ensure that confidentiality is protected.  Receiving Party will, if requested in writing by Disclosing Party, at Disclosing Party’s expense, obtain or assist Receiving Party in obtaining any such protective order.  Failing the entry of a protective order or the receipt of a waiver hereunder, Receiving Party may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that Receiving Party has been advised by  counsel that it is legally compelled to disclose. 

13)          HELP DESK.  Help desk services shall be made available to Client during Company’s normal business hours (“Regular Business Hours”), which are generally Monday through Friday, 8 AM to 6 PM EST, except for federal and state holidays in New York State, including but not limited to New Year’s Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, the Friday after Thanksgiving, and Christmas Day.  Unless otherwise indicated in a SOW, all help desk services shall be billed to Client at Company’s then-current hourly rates in fifteen (15)-minute intervals.

14)          MANAGED SERVICES.

1. Provision.  Managed services will be provided as indicated in an applicable SOW.  To the extent that any of the services listed below are provided to Client, the following provisions shall apply in addition to those provisions contained in an applicable SOW:
   1. BDR / Data Backup.  Backup and/or disaster recovery services may require Client to accept the terms of one or more third party end user license agreements (“EULAs”).  The 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.
   2. BYOD.  Client hereby represents and warrants that Company is authorized to provide the Services to all devices, peripherals and/or computer processing units, including mobile devices (such as personal digital assistants, notebook computers, and tablet computers) that (i) are connected to the System (by wired or wireless connection), 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 off-line from the System.
   3. Hosted Solutions.  Hosted solutions, including but not limited to hosted email and document-related applications and PBX/telephony solutions, may require Client to accept the terms of a third party EULA, which 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.  Company reserves the right to suspend or terminate Client’s access to hosted solutions in the event that Company has reason to believe that the hosted solutions are being accessed, used or otherwise manipulated in a manner that violates the law or an applicable EULA, or poses a threat to the integrity or security of Company’s computer servers or any third party server.

15)          MISCELLANEOUS.

1. Software Licenses.  Client shall be responsible for obtaining and maintaining any and all software licenses for all software installed on, or used by, Client on the System.  Client represents and warrants that Client will have any and all such licenses prior to entering into any SOW and during the term of each applicable SOW to which the scope of Services relates or to which Company requires access to perform the Services, unless Company agrees to obtain and maintain such licenses in a SOW.  Client agrees to provide copies of such licenses to Company upon request by Company.
2. Assignment.  Neither this Agreement nor any SOW may be assigned or transferred by Client without the prior written consent of the Company.  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, Company 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.
3. Amendment.  This Agreement may be amended at any time by Company. Company shall post the new updated Agreement at a link on its website and will include a notice on the next invoice to Client thereafter stating that the Agreement has been amended and providing the link to the updated Agreement. The Agreement, as amended, shall become effective 30 days after such invoice bearing such notice is sent. No amendment shall act to increase the Term of this Agreement or any included SOW unless otherwise agreed to in writing by Client.
4. 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.
5. 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. 
6. Other Terms.  Neither party shall 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. 
7. 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.
8. Merger.  This Agreement, including any amendments made pursuant to section 15(c) above, together with any Statement(s) of Work, 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 that 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.  Company shall not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.
9. Force Majeure.  Company 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, 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 Company. 
10. 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 Company’s employees or subcontractors to discontinue or reduce the scope of their business relationship with Company, or recruit, solicit or otherwise influence any employee or agent of Company to discontinue such employment or agency relationship with Company. In the event that Client violates the terms of the restrictive covenants in this Section 15(j), the parties acknowledge and agree that the damages to Company would be difficult or impracticable to determine, and agree that in such event, as Company’s sole and exclusive remedy therefore, Client shall pay Company as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of base salary with Client (including any signing bonus) and any and all attorneys’ fees incurred by Company related to the enforcement of this Section 15(j).
11. Survival.  The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement shall survive.
12. Insurance.  Company and Client shall each maintain, at their own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability.  The required insurance coverage shall be issued by an insurance company duly authorized and licensed to do business in applicable jurisdiction(s) with the following minimum qualifications in accordance with the latest edition of A.M. Best’s Insurance Guide: Financial Stability B+ to A+.  A party shall produce written proof of insurance upon request from the other party.

13. Governing Law and Dispute Resolution.  Any controversy or claim arising out of or relating to this Agreement or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Each party expressly agrees, consents and submits to the personal jurisdiction and venue of the American Arbitration Association in New York County, New York for adjudication of any and all controversies and claims arising from or related to this Agreement.  Such arbitration shall be conducted in a confidential manner and shall be identified to the AAA as a confidential proceeding. Each party waives any and all rights, under law or in equity, to object or contest the jurisdiction and venue of said tribunal, and unless otherwise determined by the arbitrator each party shall bear its own costs of arbitration.

                    This Agreement is governed by, and is to be construed and enforced in accordance with, the laws of the State of New York, without regard to principles of conflicts of laws.  If any issue arising under or related to this Agreement is determined not to be subject to arbitration, then the parties agree that the federal and state courts located in Westchester County, New York shall have exclusive jurisdiction over any such issue, and that in such proceeding each party waives its right to a jury for any and all claims, causes of action, and counterclaims relating to this Agreement. 

14. 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.

15. 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.

16. Business Day. If any time period set forth in this Agreement expires on a day other than a business day in Yonkers, New York, such period shall be extended to and through the next succeeding business day in Yonkers, New York. 

17. Notices.  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.  Notice shall 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 shall 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.  Notice by Client to Company shall be sent to:

                    Jeremie Scheiner
                    EZMSP
                    7 Odell Plaza
                    Yonkers, NY 10701
                   

    Notice by Company to Client shall be sent to the person who executes the Terms and Conditions Acceptance Form.  By reasonable notice, either party may update the person to receive notice under this Agreement.

18. Independent Contractor.  Each party is an independent contractor of the other, and neither is an employee, partner or joint venturer of the other.
19. Subcontractors.  Company may subcontract part or all of the Services to one or more third parties provided, however Company shall be responsible for, and shall guarantee, all work performed by any Company-designated subcontractor as if Company performed such work itself.  Notwithstanding the foregoing, Company shall not delegate or subcontract any Services that are expressly designated as being non-delegable by Company on a SOW.
20. Electronic Acceptance.  Each party acknowledges and agrees that this Agreement is intended to be executed and transmitted to the other party via execution of a separate Acceptance Form referencing this Agreement as posted on Company’s website. Furthermore, each party acknowledges that the Acceptance Form shall be executed via electronic means.  Accordingly, a party may execute and deliver the Acceptance Form (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.