Master Services Agreement

Last edited 15th October 2021

The following terms and conditions govern our relationship with you and limit our liability for any services or products  that we provide to you. Please read these terms carefully and keep a copy for your records. 
a) Scope. This master services agreement (this “Agreement”) governs all services that Managed Computer Solutions, Inc.  d/b/a SwiftPuppy Technologies, a New Jersey corporation with offices located at 2 Split Rock Drive, Suite 7, Cherry  Hill, New Jersey 08003 (“us”, “our”, “we” or “SwiftPuppy”), performs for, as well as any licenses or products that we sell  or re-sell, to you (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 is overriding the conflicting provisions of this Agreement.  

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. 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 expressly authorize such activity. 
b) Requirements. At all times, all software on the Environment must be genuine and 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.  
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. If the  fees or costs are anticipated in advance or exceed $125, we will obtain your permission before incurring such expenses  on your behalf unless exigent circumstances require otherwise. 
e) Advice; Instructions. 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 upgrading 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 location 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. 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 SwiftPuppy’s advice or directions, or your unauthorized or unilateral 
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). We will be entitled to rely on any directions or consent provided by your personnel or representatives  who are authorized in a SOW 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) who, given the totality of the circumstances, reasonably appears to have been  given the authority by you to provide us with directions or consent. If you notify us in writing (e.g. by email), your change  will take effect no later than three (3) business days after we receive your notice; and, if notice is given in person or by  telephone, your change will take effect on the business day on which you provide us with your notice. 
h) Insurance. If you are supplied with SwiftPuppy Equipment (defined below), you agree to acquire and maintain, at your sole  cost, insurance for the full replacement value of that equipment. SwiftPuppy 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 SwiftPuppy. Upon SwiftPuppy’s request, you agree to provide  proof of insurance to SwiftPuppy, including proof of payment of any applicable premiums or other amounts due under the  insurance policy.  
a) Fees. You agree to pay the fees, costs, and expenses described in each SOW. You are responsible for sales tax and any  other taxes or governmental fees associated with the Services. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption. You are also responsible for all freight,  insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). 
b) Schedule. All undisputed fees will be due and payable in advance of the provision of the Services. If applicable,  recurring 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, and, if applicable, your designated credit card will be charged on the  first business of the month in which the Services are to be provided.  
c) Nonpayment. Fees that remain unpaid for more than fifteen (15) days after the date on the invoice will be subject to  interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 2% per month or  the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to  suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not  timely received by us, and monthly or recurring charges shall continue to accrue during any period of suspension. Notice  of disputes related to fees must be received by us within sixty (60) days after the applicable Service is rendered or the  date on which you pay an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter. A re activation fee may be charged to you if we suspend the Services due to your nonpayment. Time is of the essence in the  performance of all payment obligations by you. 
You hereby grant to SwiftPuppy and its designated third party vendors the right to monitor, diagnose, manipulate,  communicate with, retrieve information from, and otherwise access the Environment solely as 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 SwiftPuppy 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. SwiftPuppy 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. 
a) Hardware / Software Purchased Through SwiftPuppy. All hardware, software, peripherals or accessories purchased through  SwiftPuppy (“Third Party Products”) are generally nonrefundable once the product is obtained from SwiftPuppy’s third  party provider or reseller. If you require a refund, 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. 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. All Third Party Products are provided “as is” and without any warranty  whatsoever as between SwiftPuppy and you (including but not limited to implied warranties).  
b) 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 SwiftPuppy would not enter into any SOW or this Agreement unless SwiftPuppy could rely on the limitations described in this paragraph.  In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to SwiftPuppy), 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 if a party has been advised of the possibility of such damages; however, reasonable  attorneys’ fees awarded to a prevailing party (as described below) shall not be limited by the foregoing limitation. Except  for your payment obligations and your indemnification obligations described in this Agreement, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) 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 SwiftPuppy 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. The foregoing limitations shall not apply to the extent  that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a  Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved  Party’s willful or intentional misconduct, or gross negligence.  
Each party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless  from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively,  “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will  have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which  indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing  participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s  sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s)  for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the  Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld. 
a) Term. This Agreement begins on the earliest date on which you accept an Order 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. 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 Without Cause. Unless otherwise agreed by the parties in writing or otherwise permitted under this Agreement,  no party will terminate this Agreement without cause if, on the date of termination, a SOW is in progress. In addition, no  party will terminate a SOW without cause prior to the SOW’s natural expiration date. Notwithstanding the foregoing, if  SwiftPuppy decides to cease providing a service to all of its customers generally, then SwiftPuppy may terminate an  applicable SOW (or the applicable portion of the SOW) without cause by providing no less than one hundred and twenty  (120) days prior written notice to you. If you terminate a SOW without cause and without SwiftPuppy’s consent, then you  will be responsible for paying the termination fee described in the “Termination for Cause” section, below. 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. 
c) Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under  this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement  or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party  of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days  (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. If  SwiftPuppy terminates this Agreement or any SOW For Cause, or if you terminate any SOW without cause prior to such  SOW’s expiration date, then SwiftPuppy shall be entitled to receive, and you hereby agree to pay to us, all amounts that  would have been paid to SwiftPuppy had this Agreement or SOW (as applicable) remained in effect. If you terminate this  Agreement or a SOW For Cause, then you will be responsible for paying only for those Services that were properly delivered  and accepted by you up to the effective date of termination. 
d) 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 SwiftPuppy on three (3) 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  SwiftPuppy will have the right, upon ten (10) days prior written notice to you, to terminate this Agreement or the applicable SOW For Cause 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. 
e) Consent. You and we may mutually consent, in writing, to terminate a SOW or this Agreement at any time. f) Equipment / Software Removal. 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 SwiftPuppy-owned  equipment or software (collectively, “SwiftPuppy Equipment”) is located to enable us to remove all SwiftPuppy Equipment from the premises. If you fail or refuse to grant SwiftPuppy access as described herein, or if any of the SwiftPuppy Equipment is missing, broken or damaged (normal wear and tear excepted) or any of SwiftPuppy-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. 
g) Transition; Deletion of Data. In the event that you request SwiftPuppy’s assistance to transition away from our services,  we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to SwiftPuppy providing its  assistance to you, and (ii) you agree to pay our then-current hourly rate 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 the retrieval and provision of passwords,  log files, administrative server information, or conversion of data are transition services, and are 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. We will be held harmless for, and indemnified by you 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. 
a) Response. We warrant and represent that we will provide the Services, and respond to any notification received by us of any  error, outage, alarm or alert pertaining to the Environment, in the manner and within the time period(s) designated in an applicable SOW (“Response Time”), except for (i) those periods of time covered under the Onboarding Exception (defined  below), or (ii) periods of delay caused by Client-Side Downtime (defined below), Vendor-Side Downtime (defined below)  or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Environment or our equipment or network, or (iv) delays caused by a force majeure event. 
i) Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime will mean those hours, as  determined by us but which will not occur between the hours of 8:00 AM and 5:00 PM Eastern Time, Monday through  Friday without your authorization or unless exigent circumstances exist, during which time we will perform scheduled  maintenance or adjustments to the Environment. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime. 
ii) Client-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the  provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or  omissions (“Client-Side Downtime”). 
iii) Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the  provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third party service  providers, third party licensors, or “upstream” service or product vendors. 
iv) Remedies; Limitations. Except for the Onboarding Exception, if we fail to meet our service level commitment in  a given calendar month and if, under such circumstances, our failure is not due to your activities, omissions, or  inactivity, then upon receiving your written request for credit, we will issue you a pro-rated credit in an amount equal  to the period of time of the outage and/or service failure. All requests for credit must be made by you no later than forty-five (45) days after you either (i) report the outage or service failure to us, or (ii) if applicable, receive a monthly  report showing the outage and/or failure. The remedies contained in this paragraph and in the “Term; Termination”  section above are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available  to you for our failure to meet any service level commitment during the term of this Agreement. 
b) Onboarding Exception. You acknowledge and agree that for the first forty-five (45) days following the commencement  date of a SOW, the Response Time commitments described in this Agreement will not apply to us, it being understood that  there may be unanticipated downtime or delays due to our initial startup activities and/or familiarization with you (the  “Onboarding Exception”).  
a) Defined. For the purposes of this Agreement, Confidential Information means any and all non-public information provided  to us by you, including but not limited to your customer data, customer lists, internal documents, and related information.  Confidential Information will not include information that: (i) has become part of the public domain through no act or  omission of SwiftPuppy, (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 who is not and was not subject to an obligation of confidentiality or  otherwise prohibited from transmitting such information. 
b) Use. We will keep your Confidential Information confidential and will not use or disclose such information to any third party  for any purpose except (i) as expressly authorized by you in writing, or (ii) as needed to fulfill our obligations under this  Agreement.  
c) Due Care. We will exercise the same degree of care with respect to the Confidential Information we receive from you as we normally take to safeguard and preserve our own confidential and proprietary information, which in all cases will be at least  a commercially reasonable level of care. 
d) Compelled Disclosure. If we are 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. 
e) Business Associate. If we enter into a business associate agreement (“BAA”) with you for the protection of personal health  information, then the terms of the BAA will be read in conjunction with the terms of the confidentiality provisions of this  Agreement. The terms that protect confidentiality most stringently shall govern, and conflicting privacy- or confidentiality related terms shall be governed by the BAA. 
a) EULAs. Portions of the Services may require you to accept 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. You agree to be bound by the terms of such EULAs and will look only to the applicable third party provider 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.  
b) Third Party Services. Portions of the Services may be acquired from, or rely upon the services of, third party manufacturers  or providers, such as data hosting 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, and will be held  harmless by you, for the failure of any third-party provider or manufacturer to provide Third Party Services to SwiftPuppy or to you.  
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. You hereby represent and warrant that we are authorized to access all devices, peripherals and/or computer  processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that we are  designated to monitor or manage under a SOW (collectively, “Devices”), regardless of whether such Devices are owned,  leased or otherwise controlled by you. Unless otherwise stated in a SOW, Devices will not receive or benefit from the Services  while the devices are detached from, or unconnected to, the Environment. Client is strongly advised to refrain from  connecting Devices to the Environment where such devices are not previously known to us and are not expressly  covered under a managed service plan from us (“Unknown Devices”). We will not be responsible for the diagnosis or  remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and  we will not be obligated to provide the Services to any Unknown Devices. 
e) Equipment. Unless otherwise noted in a SOW or Order, all SwiftPuppy Equipment is licensed to you, and is neither owned  by you nor leased to you. Upon the expiration of an applicable SOW, your license to use the SwiftPuppy Equipment shall immediately terminate, and thereafter all SwiftPuppy Equipment must be returned to us immediately at your expense. All  configurations on the SwiftPuppy Equipment are our proprietary information and will not be circumvented, modified, or  removed by you without our prior written consent. 
Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other  intellectual property owned 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. If we provide licenses  to you for third party software under a SOW, then you understand and agree that such software is licensed, and not sold, to you.  You are allowed to use such third party software subject to the terms and conditions (i) of this Agreement, (ii) of the applicable  SOW, and (iii) any applicable EULA; no other uses of such third party software are permitted. To the maximum extent permitted  by applicable law, we make no warranty or representation, either expressed or implied with respect to third party software or its  quality, performance, merchantability, or fitness for a particular purpose. 
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-certified arbitrator  available within a twenty (20) mile radius of our office, then by any arbitration forum as determined by us, pursuant to that  forum’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 unless we agree to a different venue. 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. 
a) 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. 
b) 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. 
c) 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. You are strongly advised to (i) educate your employees to properly  identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage  behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against  cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even  under a “best practice” scenario. Unless a malware-related incident is caused by our intentionally malicious  behavior or our gross negligence, we are held harmless from any costs, expenses, or damages arising from or related  to such incidents. 
d) Non-Solicitation. Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and  for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in  conjunction with others, directly or indirectly solicit, induce or influence any of the other party’s employees with whom  the Restricted Party worked to discontinue or reduce the scope of their business relationship with the other party, or recruit,  solicit or otherwise influence any employee of the other party with whom the Restricted Party worked to discontinue  his/her employment or agency relationship with the other party. In the event of a violation of the terms of the restrictive  covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or  impracticable to determine, and in such event, the Restricted Party will pay the other party as liquidated damages and not  as a penalty an amount equal to fifty percent (50%) percent of that employee first year of base salary with the Restricted  Party (including any signing bonus). In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach  of this Agreement, in which event the affected party 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, 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. 
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  SwiftPuppy, specifically refers to this Agreement or the SOW being amended, and is accepted in writing (email or  electronic signature is acceptable) by you. 
e) 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. 
f) Severability. 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.  
g) 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 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. 
h) 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.  
i) 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. The foregoing sentence shall not apply to any business associate agreement required under  HIPAA, which the parties may (if required) enter into after the Effective Date of this Agreement.  
j) 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. 
k) 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. 
l) Insurance. SwiftPuppy and you will each maintain, at each party’s own expense, all insurance reasonably required in  connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability.  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.  
m) Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to, the laws of the  state of New Jersey. You hereby irrevocably consent to the exclusive jurisdiction and venue of Camden County, New  Jersey, for any and all claims and causes of action arising from or related to this Agreement. 
n) 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. 
o) 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, or supplement SwiftPuppyin any manner the terms of this  Agreement. 
p) Business Day. If a time period set forth in this Agreement expires on a day other than a business day in Camden County,  New Jersey, such period will be extended to and through the next succeeding business day in Camden County, New Jersey.  q) 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  email. Notice sent by email will be sufficient only if the sender emails the notice to the last known email address of the  recipient’s Authorized Contact. Notices sent to us must be copied to our general counsel, Bradley Gross, Esq., at Notwithstanding the foregoing, any notice from you to SwiftPuppy regarding (a) any alleged  breach of this Agreement by SwiftPuppy, or (b) any request for indemnification, or (c) any notice of termination of this  Agreement or any SOW, must be delivered to SwiftPuppy either by U.S. mail or fax, unless such requirement is expressly  and specifically waived by SwiftPuppy. All electronic documents and communications between the parties, including  email, will satisfy any “writing” requirement under this Agreement.  
r) Independent Contractor. SwiftPuppy is an independent contractor, and is not your employer, employee, partner, or  affiliate.  
s) Subcontractors. Generally, we do not utilize subcontractors for to perform onsite services; however, should we elect to  subcontract a portion of those services, we will guarantee the work as if we performed the subcontracted work ourselves.  t) Data & Service Access. Some of the Services may be provided by persons outside of the United States and/or your data  may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify  us if your company requires us to modify these standard service provisions, in which case additional (and potentially  significant) costs will apply. 
u) 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).