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MASTER SERVICES AGREEMENT

 

This Master Services Agreement (the “Agreement”) is entered into between NJEdge.Net, Inc. (“Edge”) and the Member entity utilizing the Services (“Member”). By utilizing the Services, Member agrees to be bound by the terms and conditions set forth in this Agreement. If Member does not agree to these terms, Member should not use the Services.

This Agreement governs the provisions of Services and outlines the terms under which Edge will provide its Services to the Member, as further described in a specific Scope of Work, incorporated herein by reference.

If Member has an existing Master Services Agreement (“MSA”) with Edge, the terms and conditions outlined in the MSA shall govern and take precedence over any conflicting provisions in this Agreement. Any amendments or additional agreements shall be subject to the MSA unless expressly stated otherwise.

Member wishes to retain Edge to perform certain information technology services (the “Services”), and provide certain equipment and software (the “Deliverables”), as defined in one or more Scopes of Work referencing this Agreement and agreed to by authorized representatives of both parties in writing (each, an “SOW”), and Edge wishes to perform such Services and deliver such Deliverables in accordance therewith;

NOW, THEREFORE, in exchange for good and adequate consideration that the parties hereby acknowledge as having been received, the parties agree as follows:

  1. Scope of Agreement. Edge agrees to perform for Member the Services, and deliver to Member the Deliverables, as described in each SOW entered into by the parties, in accordance with the terms of each applicable SOW and this Agreement.  Unless otherwise specifically provided in an SOW, any schedules or deadlines set forth therein are good faith estimates only.  Edge may subcontract all or some of the work set forth in an SOW, or assign an SOW or this Agreement, to one or more affiliates or subsidiaries of Edge.  If Edge elects to do so, Edge shall remain responsible for performance of Services, and delivery of the Deliverables, as set forth therein.
  2. Term. The term of this Agreement (“Term”) shall begin on the Effective Date as defined in the SOW and shall continue until the delivery of, and payment for, all Services and Deliverables as required by this Agreement and any SOWs, unless earlier terminated pursuant to Article 7 below.  The term of each SOW shall continue until the earlier of: (i) the termination or expiration of this Agreement; (ii) the termination of the SOW pursuant to this Agreement; or (iii) the termination or expiration of the SOW pursuant to its terms.
  3. Statements of Work. In order to be binding under this Agreement, each SOW must specifically reference this Agreement and be signed by authorized representatives of both parties.  In the event of a conflict between the terms of this Agreement and those of an SOW, the terms of this Agreement shall prevail unless the SOW specifically references that it is amending the Agreement.  Each SOW will address the following, as applicable: scope of Services, Deliverables, pricing, key assumptions, staffing, responsibilities of both parties, estimated project schedule, professional arrangements, and such other matters as to which the parties may agree.
  4. Acceptance of Services and Deliverables. Unless otherwise set forth in an applicable SOW, all Services performed by Edge for Member under the SOW shall be deemed accepted when rendered.  Unless otherwise set forth in an applicable SOW, all Deliverables shall be deemed accepted upon delivery to Member. Unless otherwise specified in an applicable SOW all equipment Deliverables are manufactured by a third-party manufacturer, and all software Deliverables are owned by a third-party licensor.  Upon the earlier to occur of payment by Member for equipment Deliverables, or transfer of title pursuant to the applicable SOW, Edge will assign to Member, to the extent it is permitted to do so, any warranty issued by the third-party manufacture of such equipment Deliverables.  All software Deliverables are subject to the terms of any license agreement required by the third-party licensors of such software Deliverables.
  5. Member Responsibilities. Member’s responsibilities with respect to Services performed by Edge under this Agreement and any SOW shall include the following:  (i) providing full cooperation and timely access to all required Member personnel and facilities during the course of this Agreement and each SOW; (ii) providing all equipment, space and utilities required by Edge to perform Services and deliver the Deliverables under this Agreement and each SOW; (iii) backing up the data on Member’s system and providing adequate security for same, it being understood and agreed that EDGE IS NOT RESPONSIBLE FOR THE LOSS OF DATA OR THE LOSS OF ANY USE OF MEMBER’S COMPUTER OR NETWORK SYSTEMS RESULTING FROM ITS PERFORMANCE UNDER THIS AGREEMENT AND EACH SOW; (iv) obtaining permission for Edge to access and use Member’s system, the data on it, and all software and hardware components included in it for purposes of providing the Services and delivering the Deliverables hereunder and any SOW, which such permission must be obtained before Edge commences any work under the applicable SOW; and (v) such other responsibilities as are set forth in an applicable SOW.  Edge shall not be liable for any default or delay in performance of its obligations under this Agreement and/or any SOW caused in whole or in part by Member’s failure to obtain any such permission, which such permissions must be obtained at Member’s sole costs and expense.
  6. Payment.
    • Fees. As payment for the Services and Deliverables, and Edge’s performance of its obligations under each SOW, Member agrees to pay Edge pursuant to the fee schedule set forth in that SOW.  Unless otherwise indicated on the SOW, Edge will perform such obligations on a time-and-materials basis at the rates set forth in the SOW, and if no rates are specified, at Edge’s then current hourly rates.  Edge may provide Member with an estimate of the cost to perform certain of its obligations under the SOW.  Member acknowledges and agrees that the actual cost will be based on the actual time spent, and expenses incurred, by Edge in performing such obligations, and may be more or less than the estimate.  Edge shall not change its rates during the term of an SOW, unless permitted by the SOW, but may adjust its rates applicable to any new SOW entered by the parties.  All fees referred to in this Agreement and any SOW are in U.S. Dollars and do not include any duties or taxes.
    • Expenses; Taxes. Member shall reimburse Edge for all out-of-pocket expenses incurred by Edge or its employees, consultants or subcontractors in performing any aspect of this Agreement or any SOW, including reasonable travel and living expenses associated with trips to Member’s location(s) or on behalf of Member which may include airfare, train fare and mileage at the maximum reimbursement rate permitted by the Internal Revenue Service.  Member shall be responsible for the payment of all taxes based on any Services performed and Deliverables delivered to Member pursuant to this Agreement and any SOW.
    • Invoices; Payment; Late Fees. Edge will submit invoices in accordance with the payment schedule set forth in any SOW for Services rendered and Deliverables delivered under this Agreement and any SOW, and for any reimbursable expenses pursuant to Section 6.B above. Member will remit payment in full on each undisputed invoice to Edge within thirty (30) days of its receipt of such invoice.
  7. Default; Termination.
    • Default; Acts of Insolvency. Either party has the right to terminate an SOW or this Agreement if the other party is in default of any material obligation under the instrument (whether an SOW or this Agreement) sought to be terminated, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) calendar days after receipt of written notice of such default (or such additional cure period as the non-defaulting party may authorize in writing).  Either party may terminate this Agreement by written notice to the other party and may regard the other party as in default of this Agreement, if the other party makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise.
    • Effect of Expiration or Termination. In the event this Agreement expires or is terminated: (i) all rights and obligations of both parties including without limitation those set forth in Sections 5 through 19 shall survive said expiration or termination, to the extent, and except, as expressly provided therein; and (ii) all rights and obligations of both parties under all SOWs shall terminate, with the exception of those rights and obligations that by their nature or express terms are to survive.  Upon the written request of either party hereunder, the other party shall forthwith return to the other all papers, materials and other properties of such other party held by it in connection with the performance of this Agreement or any SOW.  The termination of an SOW shall not terminate any other SOWs absent the termination of this Agreement.
    • Change of Circumstances. Either party may terminate a SOW at any time, in whole or in part, for convenience, upon no less than thirty (30) days written notice to the other party. Member will be responsible for payment of all services up to the date of termination.
    • For Cause. Where Edge fails to perform or comply with a SOW or the Agreement, and/or fails to comply with the complaints procedure in N.J.A.C. 17:12-4.2 et seq., the Member may terminate the SOW or Agreement upon ten (10) days’ notice to Edge with an opportunity to respond. Where Edge continues to perform a SOW poorly as demonstrated by formal complaints, late delivery, poor performance of service, etc., so that the Member is repeatedly required to use the complaints procedure in N.J.A.C. 17:12 4.2 et seq. the Member may terminate the SOW or Agreement upon ten (10) days’ notice to Edge with an opportunity to respond. In cases of emergency the Member may shorten the time periods of notification and may dispense with an opportunity to respond. In the event of termination under this section, Edge will be compensated for work performed in accordance with the SOW or Agreement, up to the date of termination.  Such compensation may be subject to adjustments.
  8. Intellectual Property. Unless otherwise set forth in an applicable SOW, each party shall retain ownership of all intellectual property rights in information and materials owned by it prior to execution of this Agreement, or developed by it pursuant to this Agreement.  Ownership of software Deliverables shall remain with the applicable third-party licensor of such Software.  Member’s rights to any intellectual property rights in information and materials owned by Edge or third-party licensors shall be limited to those set forth in an applicable SOW, if any.
  9. Indemnification.   To the extent permitted under New Jersey state law, Member hereby agrees to indemnify, defend and hold harmless Edge, its officers, agents, employees, and authorized representatives (the “Edge Parties”) from and against any and all third-party claims, actions, damages, losses, liabilities, judgments, settlements, costs, expenses and fees (including reasonable attorneys’ fees) arising out of or related to any claim or allegation related to: (1) Member’s use of any Services or Deliverables hereunder or any SOW; (2) claims by Member’s employees, consultants or representatives, or any other third-party accessing any Services or using any Deliverables; (3), an allegation of damage to property, personal injury, or death caused by Member’s negligence or willful misconduct; or (4) any alleged infringement of a third-party’s intellectual or proprietary rights resulting from: (a) information or materials of Member, including any communications or transmissions using any Services or Deliverables; (b) Edge’s compliance with Member’s instructions or specifications; or (c) Member’s combination of the Deliverables with other information or materials not provided by Edge.  Edge shall have the right to have counsel of its own choosing participate in the defense of any claim defended by Member hereunder at the sole expense of Edge.  In the event that any Edge Party receives a claim or notice of suit likely to give rise to a request for indemnification hereunder, the Edge Party shall promptly give Member notice of same and, upon receiving such notice, Member agrees to defend the Edge Parties in connection with same.  Edge must provide Member with such assistance as Member may reasonably request in the performance of its indemnity obligations hereunder, all at Member’s expense.  The Edge Parties shall not settle or attempt to settle any matter for which Member is providing an Edge Party an indemnity. The Edge shall assume all risk of and responsibility for, and agrees to indemnify, defend, and save harmless Member and its directors, officers, and employees from and against any and all third-party claims, demands, suits, actions, recoveries, judgments and cost and expenses in connection therewith on account of the loss of life, property, or injury or damage to the person, body of property of any person or persons whatsoever including Members, its directors, officers, employees, which shall arise from or result directly or indirectly from the services and/or materials supplied under this contract and all fines, penalties and loss incurred, for or by the reason of the violation of any city or borough ordinance, regulation or laws of the State of New Jersey, or the United States, while said work is in progress. This indemnification obligation is not limited by, but is in addition to the insurance obligations contained in this Agreement. This Agreement shall be subject to all the provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. and all other laws applicable to the parties involved.
  10. Insurance. Edge shall assume all responsibility for its actions and those of anyone else working for it while engaged in any activity connected with this Agreement.  Edge shall carry sufficient insurance to protect it and Member, its directors, officer and employees from any property damage or bodily injury claims arising out of the contracted work.  Evidence of current insurance coverage shall be provided in the form of a Certificate of Insurance, which shall be submitted no later than ten (10) days after receipt of Member’s request. The insurance to be provided by the Edge shall be as follows:
    • Commercial General Liability Insurance – including contractual liability endorsement, subject to primary limits of coverage of not less than $1,000,000 per occurrence/$1,000,000 annual aggregate. If applicable, XCU coverage may be required;
    • Automobile Liability Insurance – covering owned, non-owned and hired vehicles with not less than $1,000,000 for bodily injury and property damage;
    • Excess Liability Insurance – subject to an additional limit of liability of not less than $1,000,000 per occurrence/$1,000,000 aggregate excess of the primary policy;
    • Workers’ Compensation Insurance – statutory coverage and including employers’ liability   coverage of not less than $1,000,000 per occurrence and $1,000,000 annual aggregate;
    • Errors and Omissions Liability insurance – with limits of $1million/$1million; Member to be named as additional insured ATIMA with respect to services provided by Edge pursuant to the SOW or Agreement.
    • Additional Insured – Member to be named as additional insured with respect to Commercial General, Automobile and Excess Liability Insurance provided by Edge pursuant to the SOW or Agreement; All insurers affording coverage are to be licensed to conduct the business of insurance within the State of New Jersey and to be rated not less than A- by Bests Insurance Rating Service.
    • Member is to be named as certificate holder with respect to all afore-mentioned insurance coverages.
  11. Confidentiality.
    • Definition of “Confidential Information”. For purposes of this Agreement, the term “Confidential Information” shall mean the following, regardless of whether disclosed by one party (each party, when disclosing its Confidential Information hereunder is referred to herein as “Discloser”) to the other party (each party, when receiving Confidential Information hereunder is referred to herein as “Recipient”) prior to, or after, the execution of this Agreement, and regardless of whether it is disclosed orally or in writing, or by the observation or inspection of  equipment, materials or processes used by Discloser: (a) information or materials disclosed by Discloser to Recipient; (b) information or material that is proprietary or confidential information of a third party, which Discloser is authorized to disclose under the terms of this Agreement to Recipient; (c) any information or materials referred to as Confidential Information in an applicable SOW; and (d) any other materials or information disclosed by or on behalf of Discloser which are marked “confidential,” known or reasonably known by Recipient to be confidential, or of a proprietary nature learned or disclosed in the course of discussions or other work undertaken between the parties.  Confidential Information may include information and materials related to software or product development, source code, related programmers’ notes and documentation, economic information, business and technical information, market strategies, pricing, Members, vendors and employees.  The parties agree that the covenant not to disclose Confidential Information shall not apply to any information or materials to the extent that any of the following conditions exist or come into existence (“Non-Protected Information”): (a) the Recipient can establish that the information or materials, at the time access is gained by Recipient, is already in Recipient’s possession or is available to it from any other source rightfully in possession of it owing no obligation of confidentiality to Discloser; and/or (b) the information or materials  is published or made generally available to the public, other than through the actions of Recipient or a breach of confidentiality obligations owed to Discloser; and/or (c) the information or materials, after access is gained to the disclosure, is at any time obtained by Recipient from any other source rightfully in possession of it owing no obligation of confidentiality to Discloser; and/or (d) the Recipient can establish that the information or materials was developed independently by Recipient without access to Discloser’s Confidential Information; and/or (e) the Confidential Information which is required to be disclosed by law, regulation or court order.
    • Non-Disclosure Obligations. Discloser grants Recipient the right to use its Confidential Information solely for purposes contemplated by this Agreement.  Except as permitted by this Section 11.B, Recipient shall not at any time disclose the Confidential Information to any person without the prior written consent of Discloser, regardless of whether the Confidential Information was disclosed prior to the date of this Agreement or thereafter.  Recipient shall use the same degree of care to prevent the disclosure of Confidential Information as it uses to protect its own confidential information; provided, however, in no circumstance will Recipient use less than reasonable care.  Upon the written request of Discloser, Recipient shall promptly deliver to Discloser any Confidential Information, and any materials embodying Confidential Information and any copies made thereof, which Recipient may have made, may have access to, or may have received or possessed prior to, or during, the Term of this Agreement.  In such an event, Recipient shall immediately and forever cease all use of any of the Confidential Information for any purpose, other than as expressly permitted by Discloser in advance in writing.  All of the undertakings and obligations relating to confidentiality and non-disclosure, whether contained in this Section or elsewhere in this Agreement or any SOW, and whether of Member or Edge, shall survive following the expiration or termination of this Agreement.
  12. Representations and Warranties.  Edge hereby represents and warrants that it will perform the Services in a professional and workmanlike  EDGE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY DELIVERABLES.  MEMBER AGREES THAT THE ONLY WARRANTIES APPLICABLE TO ANY DELIVERABLES SHALL BE THOSE PROVIDED BY THE APPLICABLE THIRD-PARTY MANUFACTURER OR LICENSOR. EDGE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES EDGE WARRANT THAT ANY SOFTWARE INCORPORATED IN ANY SERVICES OR DELIVERABLES IS WITHOUT DEFECT OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 12, OR IN ANY APPLICABLE SOW, EDGE DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND DELIVERABLES, AND ANY RESULTS OBTAINED FROM THE SERVICES, INCLUDING THE RESULTS OF ANY RECOMMENDATIONS EDGE MAY MAKE INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALING BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE).
  13. Excusable Delays. Neither party shall be liable to the other for any failure or delay of performance of any obligations hereunder when such failure or delay shall have been wholly or principally caused by acts or events beyond its reasonable control, including without limitation acts of God, acts of civil or military authority, fires, floods, earthquakes or other natural disasters, war, riots or strikes. The party who has been so affected shall immediately give notice to the other party.  Upon receipt of such notice, all obligations under this Agreement and any affected SOW shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay.  If the parties are unable to agree upon an alternative schedule for delivery of Services, or if any delay reasonably beyond the control of either party continues for a period of three (3) months or more, this Agreement or any affected SOW may be terminated by either party and neither party shall be liable to the other for such termination provided Member pays Edge for all services rendered and expenses incurred in accordance with the payment provisions herein.  Nothing provided herein shall excuse the delay of any payment that is validly due by Member under this Agreement.
  14. Remedies; Limitations of Liability.
    • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EDGE WILL NOT BE LIABLE FOR ANY LOSS OF REVENUE, PROFITS OR GOODWILL OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSSES RESULTING FROM ARISING OUT OF OR IN CONNECTION WITH (A) THIS AGREEMENT, THE DELIVERABLES OR THE SERVICES; (B) THE USE OR INABILITY TO USE THE DELIVERABLES OR SERVICES, (C) THE RESULTS OR OPERATION OF ANY PRODUCT, EQUIPMENT OR SYSTEM RESULTING FROM IMPLEMENTATION OF ANY RECOMMENDATION BY EDGE OR (D) THE LOSS OF USE OF ANY SOFTWARE, HARDWARE, OR DATA, INCLUDING THE INABILITY TO ACHIEVE ANY PARTICULAR RESULT, EVEN IF ADVISED OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF THERE IS AN ASSERTION THAT THE REMEDIES HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. IN THE EVENT ANY ASPECT OF THE SERVICES ARE NOT PROVIDED AS WARRANTED, EDGE’S SOLE RESPONSIBILITY AND MEMBER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR EDGE TO RE-PERFORM SUCH SERVICES. MEMBER ACKNOWLEDGES AND AGREES THAT ITS SOLE REMEDY WITH RESPECT TO BREACH OF ANY WARRANTIES PROVIDED BY THIRD-PARTY MANUFACTURERS OR LICENSORS OF DELIVERABLES SHALL BE SUCH REMEDIES AS ARE AVAILABLE TO MEMBER PURSUANT TO THE TERMS OF THE WARRANTIES PROVIDED BY SUCH THIRD-PARTY MANUFACTURERS OR LICENSORS.
    • THE MAXIMUM AGGREGATE LIABILITY OF EDGE ARISING OUT OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY MEMBER FOR THE SERVICES IN THE PRIOR TWELVE (12) MONTHS OF THIS AGREEMENT.
    • The parties agree that if there is a breach of Sections 8 or 11 of this Agreement, the non-breaching party may suffer irreparable harm, the amount of which may be difficult ascertain and, therefore, the breaching party agrees that the non-breaching party shall have the right to apply to apply to a court of competent jurisdiction for an order restraining any such threatened or further breach, and for such other relief as may be appropriate, which right shall be in addition to the remedies otherwise available at law or in equity. In connection with such application, the non-breaching party shall not be required to prove monetary damages or to post a bond.
  15. Notices.  Any notice or other communication hereunder shall be in writing and sent to the address for such party indicated above.
  16. Assignment.   Neither party shall assign this Agreement, or any interest therein, or any part of this Agreement, or any SOW, without the prior written consent of the other party, except that Edge may assign this Agreement and any SOWs to the purchaser of all, or substantially all, of its assets.
  17. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of New Jersey and the parties consent to the exclusive jurisdiction and venue of the state and federal courts sitting in the State of New Jersey.
  18. Independent Parties. Nothing in this Agreement shall be construed to constitute either of the parties hereto as a partner, joint venturer, agent, representative or employee of the other party.
  19. Invalidity and Severability. In the event that all or any part of the terms, conditions or provisions contained in this Agreement or any SOW are determined to be invalid, unlawful or unenforceable to any extent by any arbitrator or any court or tribunal of competent jurisdiction, such term, condition or provision shall be severed from the remaining terms, conditions and provisions which shall continue to be valid and enforceable to the fullest extent permitted by law.
  20. Entire Agreement. This Agreement, together with the SOWs and any appendices or other attachments hereto, constitutes the entire agreement between the parties in relation to this subject matter.  The terms of this Agreement shall supersede the terms of any correspondence or oral agreements or understandings reached between Edge and Member up until the date of this Agreement including, without limitation, any confidentiality or non-disclosure agreements previously entered into by the parties.  Any information or materials disclosed by either party to the other pursuant to any such confidentiality or non-disclosure agreements shall be governed by the terms of this Agreement.  This Agreement may not be modified except in writing signed by a duly authorized representative of both parties.
  21. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.