Master Service Agreement

SERVICES/TERM/SOW. 

The service package, term and fees subject to this Agreement are set forth in the attached Schedule A.  Unless a Term is specified in such Schedule, this Agreement shall be effective as of the Service Start Date and shall remain in effect, unless terminated earlier in accordance with this Agreement, until the end of the Duration of the Term specified above (the “Initial Term”).  The initial Term shall automatically extend for additional 1 year terms (each, an “Additional Term”, and together with the Initial Term, the “Term”) unless (i) this Agreement is terminated earlier in accordance with the terms hereof, or (ii) Customer provides by written Notice to AlphaRidge its intent not to so renew this Agreement no later than 30 days prior to the expiration of the applicable term. For purposes of this Agreement, “Term” shall mean the initial term and all extensions thereof.  Upon completion of the Initial Term or any Renewal Term, AlphaRidge Inc. may increase rates upon three (3) months written notice to the Client by a maximum ten percent (10%) and no more than once per twelve (12) month period.

A. Included Services

The services covered by this Agreement, including without limitation the services in Schedule A, any SOW and all additional services that may constitute Excluded Services, but are nevertheless rendered on an hourly basis or based on an approved proposal for additional IT support, including without limitation the provision of services, hardware or software (all such approved proposals being referred to herein as a “Quote” or “Quotes”), are referred to as the “Service” or “Services” under this Agreement.

B. Excluded Services

The services listed in the Schedule A as “Excluded Services” are not covered by Monthly Managed Service Fee and are subject to additional fees and SOW(s).  (“Excluded Services):” 

Any changes affecting this Agreement, or any SOW, Quote or SLA, including without limitation Quotes, Proposals and Contracts impacting the nature and scope of the Services, monthly Service hours, the number of users or changes in Customer hardware to be supported by AlphaRidge are subject to review and update by AlphaRidge, and may result in changes in the nature and cost of the Services to be rendered.  AlphaRidge will provide written notice of such changes and their proportionate cost, following such review and has the right to terminate this Agreement and the Customer’s rights thereunder if those changes are not accepted by the Customer.  Failure to object in writing to such notice within 10 business days from receipt by the Customer will constitute an acceptance of the modified terms.  Email shall suffice for both notice requirements in this provision.

1.1. Maintenance Services

A. Beginning on the Service Start Date, AlphaRidge agrees to maintain the equipment and maintain the software provided for under this Agreement in good working order, or restore the equipment and software to good working order, provided that the equipment or software falls within the manufacturer’s warranty periods and terms. 

B. Customer is responsible for: 

(i) providing a suitable environment for the equipment including with respect to providing adequate space, electrical power, air conditioning and humidity control and to provide AlphaRidge full, free and safe access to the equipment in order to provide proper and adequate maintenance services; (ii) implementing appropriate safeguards for the Customer's data (which includes any data of third parties obtained, stored, collected or managed by Customer); and (iii) using properly licensed software and hardware, and must disclose in advance to AlphaRidge any new software and applications that it wishes to install (or that it has installed) during the Term of this Agreement.

Please note that AlphaRidge will not be responsible for the performance, or any damages caused to other software or equipment as a result of any unlicensed or out-of-date software or application. 

1.2 Representations and Warranties of the Parties 

Each of AlphaRidge and Customer hereby represents and warrants to each other that:

A. it is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation, and has full corporate or other power and authority to enter into this Agreement and to carry out the provisions hereof;

B. it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the person or persons executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate action; and

C. this Agreement is legally binding upon it and enforceable in accordance with its terms;

1.3. On-Site Service

Unless otherwise specified in Schedule A, labor for on site Services, during normal working hours, is not included in the Monthly Managed Service Fee. Reasonable coverage for after-hours support or for support requested on applicable State and Federal holidays will be provided at AlphaRidge’s discretion. Afterhours and holiday work will be billed at the hourly rates set forth in 9.2 unless otherwise agreed to in Schedule A or a separate signed writing.  

1.4 Outside Conditions

Customer acknowledges that certain conditions outside of AlphaRidge’s control may adversely impact the ability of AlphaRidge to perform certain Services. In no event will AlphaRidge be deemed in violation of the Agreement should AlphaRidge be unable to fully or partially perform Services as a consequence of any one or combination of those conditions. Examples of such conditions include, without limitation:

• Customer’s breach of any of the covenants and conditions contained herein, including without limitation in Section 1.1(D).

• Customer tasks, software, scheduled jobs or other human intervention, intentional or otherwise, that renders portions, complete files, or complete file systems unavailable for Service.

• Failure of Customer software, operating systems or equipment (which shall include that software, operating systems or equipment used by Customer, whether provided by a third party or otherwise).

• Network connectivity issues between Customer Devices and AlphaRidge’s backup platform.

Customer acknowledges that in the event of a support issue, Customer is responsible for facilitating on-site cooperative testing with AlphaRidge Technical Support to assist in the diagnosis of the trouble.

1.5 Non-Exclusive, Non-Transferable Right

Subject to Customer’s timely and continued compliance with the terms of this Agreement, including its payment obligations, Customer shall have a non-exclusive, non-transferable right to use the Service solely for Customer’s own internal business purposes during the Term and for the number of Users or other applicable Service limitations specified in any Quote, Schedule, SOW, or SLA.   

1.6 Restrictions On Use

Customer will not use, and will not permit others to use, Customer’s account to: (1) copy, distribute, rent, lease, transfer, sublicense or make available all or any portion of the Service, or as applicable, equipment, to any third party; (2) modify or prepare derivative works relating to the Service; (3) use the Service (other than for Customer’s internal use) in any commercial context or for any commercial purpose or in any commercial product, including reselling the Service, in whole or part; (4) use the Service in any manner that threatens the integrity, performance or availability of the Service; (5) reverse engineer, decompile, or disassemble the Service; or (6) use the Service or data relating to its performance and parameters to help design a competing or similar service.

1.7 Service Obligations

Unless expressly provided for with respect to specific services, AlphaRidge’s Service level obligations are subject to a standard of commercial reasonableness. AlphaRidge will use commercially reasonable efforts to ensure that Customer receives excellent support from third party vendors within the time-frames provided (or where no time frame is provided, in keeping general industry standards for non-critical infrastructure). In adherence with this commitment, all diagnostics, maintenance and repair work shall be performed in a professional manner consistent with such industry standard, but there is no guarantee that all problems can be repaired or remedied and as such, AlphaRidge’s service obligations with respect to diagnostics and replacement/repair will be limited to the diligent pursuit of repair in a commercially reasonable manner.  Where any matters are escalated to third party vendors or manufacturers, AlphaRidge shall not be responsible for such third parties’ delays, nonresponsiveness, or failure to properly address issues raised.  

2. INTELLECTUAL PROPERTY RIGHTS.

Except for any rights expressly granted herein, this Agreement does not transfer to Customer any right, title or interest in or to any process, system, software, service or device in which AlphaRidge has an intellectual property or other ownership or use rights (“AlphaRidge Technology”). Customer acknowledges that the Service is the exclusive property of AlphaRidge and AlphaRidge and its suppliers retain all rights, title and interest in and to all patents, copyrights, trade secrets, trademarks and other intellectual property rights in and to all and any part of the Service and the AlphaRidge Technology used to provide the Service. Customer shall not acquire hereunder any right, title, or interest in the Service, except the right to use it in accordance with this Agreement.  All work product performed by AlphaRidge or resulting from the Services or its employees or contractors under this Agreement shall be and remain at all times AlphaRidge Technology.  

3. INDEPENDENT CONTRACTOR. 

The Parties agree and acknowledge that each is an arms-length independent contractor of the other and this Agreement does not form any partnership, joint venture or other relationship.  AlphaRidge will perform all Services solely in AlphaRidge’s capacity as an independent contractor and not as an employee, agent or representative of Customer. Each Party is solely responsible to payment of its own taxes, and for payment or provision to its own employees or contractors of any benefits, workers compensation.  AlphaRidge will not be responsible for, nor liable to Customer or any third party for any of the Customer’s acts or omissions, whether they are intentional, unintended, lawful, unlawful or otherwise result in damage to or a claim by any person or governmental entity, relating to the use by the Customer of the Service, including any equipment or software covered by this Agreement.  Should there nevertheless be a claim made against AlphaRidge, or any of its officers or employees, related to such use, by a third party or governmental entity, then the Customer will indemnify AlphaRidge and hold AlphaRidge harmless from the same, which indemnity will include without limitation all costs and expenses, including reasonable attorneys’ fees, incurred by AlphaRidge as a consequence of defending the same.

4. SUBCONTRACTORS. 

AlphaRidge may utilize subcontractors or suppliers to perform all or any portion of the Services or to provide any products under this Agreement, but AlphaRidge shall at all times remain primarily responsible to the Customer for the Services and products. AlphaRidge shall not be obligated to utilize or work with any Customer-designated subcontractor. 

5. RESPONSE TIME.

Unless otherwise provided for in Schedule A or in a relevant SOW or SLA, during business hours, AlphaRidge will use reasonable efforts to provide a response within 4 business hours of ticket receipt. If the issue cannot be resolved remotely, on-site support will be dispatched, provided, however, that the timing of any on-site support shall be determined by AlphaRidge based upon the exigency of the situation and shall be subject to AlphaRidge’s prior scheduling commitments. (All response times are guidelines and are not service level requirements.  AlphaRidge will make reasonable commercial efforts to respond to work/repair tickets, but such efforts and response guidelines are necessarily subject to scheduling, work load, employee and other resource availability Notwithstanding anything contained herein to the contrary, AlphaRidge shall not be responsible for failure to render Services due to causes beyond its control).

6. CUSTOMER RESPONSIBILITIES. 

6.1 Compatibility

AlphaRidge controls the version of hardware and software running on its infrastructure and does not guarantee that it is compatible with any version or software changes made by Customer on its network, server, operating system or application infrastructure. It is Customer’s responsibility to ensure that any software or version change planned on its infrastructure is compatible with AlphaRidge hardware and software.  AlphaRidge retains the right to change the version of software and hardware of its infrastructure from time to time and where practicable, will provide Customer not less than fourteen (14) days advance notice of same.  Customer shall be fully responsible for providing to AlphaRidge at Customer’s own expense and in a timely manner (i) all security credentials and any third party licenses necessary for AlphaRidge to use and access Customer’s services and systems in connection with Service; and (ii) cooperative testing of all Customer-provided hardware, software and services for compatibility with the Service. Customer is responsible for notifying AlphaRidge of all access changes, terminations or related events. AlphaRidge is not responsible for the reasonably unexpected use of services on the part of the Customer and its agents. 

6.2 Software Rights

Customer warrants and represents that it has title to, or a license or other rights to use, access and modify, and has or will obtain for AlphaRidge a right or license to use, access or modify, any Customer Software or Third Party Software to carry out the Services under this Agreement, including any requests that Customer has made of AlphaRidge to use, access or modify as part of the Service. Customer shall indemnify AlphaRidge and shall hold AlphaRidge harmless from and against any loss, claim, damage, expense, cause of action or lawsuit (including reasonable attorneys' fees, expenses and court costs) (collectively, “Losses”), arising out of or resulting from any claim or allegation that Customer does not have such rights, has not obtained such rights for AlphaRidge, or that AlphaRidge’s provision of Services hereunder using the Customer Software or Third Party Software infringes any Third Party’s right, title to or interest in or to the same.

6.3 Software Licensing

Where applicable, AlphaRidge offers licensed Third Party Software for use by Customer through Service Provider License Agreements (“SPLA”) as part of certified reseller programs with third party vendors (“Vendors”). AlphaRidge may license such Third Party Software on the terms set forth in the applicable SPLA, and may audit Customer’s compliance with same.   If Customer opts to obtain a direct license for such Third Party Software with the Vendor and hires AlphaRidge to provide Services for the management of devices upon which the Third Party Software will run, Customer agrees to promptly provide to AlphaRidge evidence of a current license agreement, including the software edition/version and any use limitations, or a separate Third Party Software assurance agreement whereby the Vendor certifies to AlphaRidge the terms and scope of the applicable license and AlphaRidge’s right to provide Services related thereto (“Software Assurance Agreement”).  AlphaRidge reserves the right to terminate or suspend Services if a SPLA or other license agreement is expired, or Customer’s use violates the terms of the applicable SPLA or other license agreement, or if Customer fails to provide a Software Assurance Agreement when requested by AlphaRidge. Customer agrees to comply with Vendor’s licensing terms of use set forth in the SPLA. Customer acknowledges that in some instance, AlphaRidge may also be required by third party contracts with large vendors of third party software (such as, without limitation, Microsoft) to conduct audits and charge Customer for coming into compliance with all required licenses.  

6.4 Access to Resources

Customer shall supply AlphaRidge with access to appropriate personnel, documentation, records, and facilities as requested by AlphaRidge from time to time in order for AlphaRidge to perform the Services. Customer shall supply to AlphaRidge vendor support contracts, contact information or any other such service required to access patches, support information, manuals, or other information related to Customer’s operating system and applications. Customer shall designate a dedicated Authorized Contact(s) in the attached SOW/Schedule to be the point of contact to interface with AlphaRidge Technical Support. 

Customer shall cooperate with service representatives from AlphaRidge to identify any particular malfunction by telephone or email and that appropriate employees will perform the diagnostic check prior to calling AlphaRidge for service. All Customer software must have proper licenses and all servers must be under manufacturer’s warranty during the Term.

6.5 Compliance with Applicable Laws

Customer’s and its User’s use of the Service will at all times comply with all applicable local, state, federal and other laws and regulations (“Applicable Laws”), and Customer agrees that the Services and systems are for use solely in the United States.  Customer agrees that data privacy laws are expressly included in the definition of Applicable Laws, and Customer is solely responsible for its own GDRP, CCPA  and other data privacy and regulatory compliance, and to the extent that AlphaRidge may be provided access to data subject to any data regulations, Customer shall be solely responsible for obtaining and maintaining permissions with respect to any Services or access provided to be provided by AlphaRidge with respect to such data, and will defend, indemnify and hold AlphaRidge harmless in connection with any claim arising from or relating to an alleged violation of such Applicable Laws.  

6.6 Compliance and Control Requirements

Customer is responsible for providing AlphaRidge with a documented list of compliance and control requirements which are expected to be outsourced to AlphaRidge as part of this Agreement (collectively, “Controls”). In cases where Controls cannot be covered, AlphaRidge will notify Customer in writing (email to the Customer’s Authorized Contact’s email address  to suffice). Customer is responsible for notifying AlphaRidge via the appropriate Account Manager of any Control evidence or audit assistance requirements.  Information or assistance will be provided by AlphaRidge within seventy-two (72) hours of Customer’s request.

6.7 Complaints

Customer shall be responsible for promptly notifying AlphaRidge of any Complaints regarding Services. A “Complaint” is defined as a telephone call with a follow up in writing, including by email, by Customer’s Account Manager to the AlphaRidge Account Manager per the escalation list. The Complaint may be recorded, and AlphaRidge shall use commercially reasonable efforts to resolve the Complaint to Customer’s reasonable satisfaction and in accordance with any applicable SLA.  No claim of liability or damages may be made by the Customer against AlphaRidge in the absence of a timely Complaint.  A Complaint will be deemed timely if made no later than five (5) business days following the receipt by the Customer of actual or constructive notice of any Service issue that the Customer believes occurred.   

7. NON-DISCLOSURE AND CONFIDENTIALITY. 

7.1 Confidential Information

Each Party acknowledges that it and its employees or agents may be exposed to or acquire information that is proprietary or confidential to the other Party relating to performance of this Agreement. Each Party shall hold such information in strict confidence and shall not use or disclose any such information to any third party other than is required to perform this Agreement. Such “Confidential Information” includes: (a) any technical information, design, process, procedure, formula, or improvement, as well as any formulae, specifications, business or work processes and procedures, instructions, and other data relating to a Party’s business, services or products, and the development, or production of any work done specifically for the Customer; (b) the business plans and financial information of a Party, regardless of whether such information would be protected under common law; and (c) such other information that, due to its nature, the receiving Party knows or should have known the same was the proprietary or confidential information of the disclosing Party. Customer’s Feedback relating to AlphaRidge Services and AlphaRidge Technology, even if designated as confidential by Customer, shall not, absent a separate written agreement, create any confidentiality obligation for or upon AlphaRidge, and AlphaRidge will own and may utilize said Feedback, as well as exclusively owning any data comprising or pertaining to performance of the Service and any software or systems used with or by it. The financial terms of this Agreement, shall be considered Confidential Information and may not be disclosed to any third party, except to a Party’s legal or accounting firms or as required by regulators with jurisdiction over Customer’s or AlphaRidge’ businesses, without the prior written consent of the other Party.

7.2 Non-Confidential Information

Notwithstanding the preceding Section 7.1, Confidential Information does not include: (a) information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise; (b) information that either Party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other; (c) information received from a third party with the right to transmit same without violation of any confidentiality agreement; and (d) information that must be disclosed pursuant to court order or by legal process; provided, however, that if information must be disclosed pursuant to court order or by legal process, the recipient shall inform the disclosing Party of such requirement (unless prohibited by law) and shall cooperate with the disclosing Party in seeking a protective order or other limitation on disclosure.

7.3 Nonpublic Personal Information

To the extent that any Confidential Information obtained by AlphaRidge is Nonpublic Personal Information (as that term is defined by the Gramm-Leach-Bliley Act) and AlphaRidge is a service provider, AlphaRidge covenants and agrees that it will implement or has implemented security measures in keeping with industry standards for general private-sector Managed Service Providers, and AlphaRidge will comply with the applicable laws and regulations regarding the security, handling, use and disclosure of such Nonpublic Personal Information in its role as a service provider.  Upon termination of an agreement pursuant to which AlphaRidge obtains Nonpublic Personal Information, and upon Customer’s request for same (email to suffice) AlphaRidge shall delete and erase from AlphaRidge systems all such Nonpublic Personal Information if permitted by applicable laws.  In the event that Customer shall require heightened standards of security and handling due to its industry, it shall advise AlphaRidge of same in writing prior to the execution of this Agreement; any failure to do so will be the sole responsibility of Customer.

8. PRESS RELEASES.  

AlphaRidge may publicly refer to Customer, orally and in writing, as a customer of AlphaRidge and may refer to the publicly releasable titles of any Quote with Customer. Any other public reference by either Party to the other may be made only with advance written notice and approval of the other Party.  The foregoing limitation shall not apply to bona fide notices that may be required by shareholders, securities regulators, or industry rules and regulations.

9. BILLING AND PAYMENT TERMS.

Specific Services Fees and fees for Third Party Products (collectively, “Fees”) are set forth in any Quote (or Quotes), and Customer’s obligation to pay the same will commence as set forth in such Quote. Any services performed outside the scope of the Quote will be handled in accordance with AlphaRidge’s evaluation of the scope of work and out of pocket expenses and will be billed at the hourly rate. AlphaRidge will provide Customer with invoices for Fees, Expenses (as hereinafter defined) and charges due under this Agreement, and Customer shall pay the same within thirty (30) days after the date of the invoice.  Notwithstanding the foregoing the Monthly Managed Service Fee is due without being invoiced 3 days prior to the start of each month of support as set forth in Section 9.7 below and underpaid license fees remitted by AlphaRidge are due upon Customer’s receipt of the invoice as set forth above  in Section 6.3 of this Agreement.  All Invoices and payments will be in U.S. Dollars.

9.1 Pass-Through Expenses

Unless a Quote provides for a fixed cost, in addition to the Fees provided in the Quote, Customer shall reimburse AlphaRidge for its reasonable out-of-pocket expenses, including without limitation, travel expenses, lodging, meals, licenses to third party diagnostic or remedial software or tools or other similar expenses, incurred by AlphaRidge in performing the Services (“Expenses”). Any such Expenses will be invoiced monthly and paid as provided herein.

9.2  Unless otherwise set forth in Schedule A or any applicable SOW, theHourly rates applicable for on-site Services are as follows: business hours rate will be billed at $150.00 per hour; afterhours rate will be billed at $225.00 per hour. Business hours are from 9AM to 5PM EST. All but emergency on-sites support must be scheduled at least (72) hours in advance.

9.3 All projects will be billed out at the hourly rates set forth in Schedule B of this Agreement or as provided for in any applicable Quotes. These include without limitation server purchases, server upgrades, migrations, new workstations, office expansions, and other Excluded Services. In the event that the Customer exceeds the hours, number of users, or increases the amount of equipment to be supported, AlphaRidge retains the right to propose a new Managed Service Fee.  

9.4 The hourly rates listed in 9.2 or any applicable SOW will be applied to all on-site work, whether scheduled or emergency. The hourly rates will also be applied to all project overage work in excess of the quoted project amounts. Customer will receive written notification prior to any overage work being performed.

9.5 Parts 

AlphaRidge will use commercially reasonable efforts to repair or replace all parts as necessary for the maintenance of the Customer's equipment purchased from or through AlphaRidge. The Customer will pay AlphaRidge for all purchases made for replacement parts. If any such hardware is not under a valid warranty, AlphaRidge is not responsible for hardware failures but will inspect at ordinary hourly rates any issue that arises to determine if it may repair same. Unless expressly provided otherwise in an applicable SOW, Customer is responsible for prepaying AlphaRidge for all hardware purchases. 

If disaster recovery or remediation is part of the Services under this MSA Customer shall pay travel expenses, waiting and service time at AlphaRidge’s current hourly service rates if the disaster unless otherwise provided in any SOW. 

9.6 Payment Methods

AlphaRidge will accept payments from Customer by check, EFT or credit card (3% processing fee).  

9.7 Non Payment; Late Payment

Payment of the Monthly Managed Service Fee is due 3 days prior to the start of each month of support. AlphaRidge reserves the right to add a late fee of 1.5% per month (18% per annum) to late invoices for every month or part of the month a payment is past due. The late fee will be billed on a separate “Late Fee” line item, showing the past due invoices. AlphaRidge reserves the right to place Customer’s account which remains unpaid beyond credit terms on “Credit Hold” until payment is received. If Customer’s account is placed on Credit Hold, Customer will not be permitted to place new Service or product orders, obtain Services under existing Quotes, or renew this Agreement, the SLA or any other Service Agreement between the Parties until payment is received. Accounts which remain unpaid sixty (60) days past payment terms may be reported to Credit Reporting Agencies and/or turned over to Collection Agencies of lawyers for collection.  Customer is responsible for reviewing AlphaRidge invoices on presentment.  Any objection to charges contained therein must be made in writing and due notice as provided for in this Agreement given within 10 days from the Date of the invoice or the objection will be deemed waived an the amount set forth in the invoice deemed fully due, and Customer will have thereby waived any and all defenses or offsets in law or equity with respect to the payment of the invoice and any accrued finance charges and additional costs and fees, including without limitation reasonable attorneys’ fees.  

9.8 Suspension of Service

If Customer fails to pay all undisputed amounts owed to AlphaRidge under this Agreement when due, then upon at least ten (10) business days prior written notice to Customer, and in addition to any other remedies available at law or in equity, AlphaRidge may suspend Services under this Agreement until full payment is made. Customer shall pay a reasonable reactivation fee for Service restoration, to be determined by AlphaRidge. AlphaRidge’s right to suspend Services under this section is in addition to AlphaRidge’s right to terminate this Agreement for non- payment.  AlphaRidge will not be responsible for any damage that may result to the Customer or any third party in the event that Service is suspended under this Section and should there nevertheless be a claim made against AlphaRidge, or any of its officers or employees, related to a damage claim during such a suspension, whether by the Customer or by a third party, then the Customer will indemnify and defend AlphaRidge and hold AlphaRidge harmless from the same, which indemnity will include without limitation all costs and expenses, including reasonable attorneys’ fees, incurred by AlphaRidge as a consequence of defending the same.

10. TAXES.

All charges and fees to be paid by Customer are exclusive of any applicable sales, use, excise or services taxes (“Taxes”) that may be assessed on the provision of the Services or products. In the event that any Taxes are assessed on the provision of any of the Services or products, Customer shall, at AlphaRidge’s request, pay the Taxes directly to the taxing authority or shall reimburse AlphaRidge for their payment. The Parties shall cooperate with each other in determining the extent to which any Taxes are owed, and shall provide and make available to each other any resale certificates, information regarding out-of-state use of materials, Services or sale, and other exemption certificates or information reasonably requested by either Party.

11. MODIFICATION OF AGREEMENT.

This agreement may not be altered, modified or changed in any way unless done so in writing and signed by an authorized AlphaRidge representative.

12. ASSIGNMENT.

Customer agrees not to assign or transfer this agreement or any of its rights or obligations hereunder. Subject to restrictions on resale imposed by state and federal securities laws, AlphaRidge may assign this Agreement or any of the rights, interests or obligations hereunder, by operation of law or otherwise, in whole or in part, to any person or entity so long as such assignee agrees to be bound by the terms and conditions of the Agreement. Effective upon any such assignment, the person or entity to whom such rights, interests and obligations are assigned shall have and exercise all of AlphaRidge's rights, interests and obligations hereunder as if such person or entity were AlphaRidge.

13. NON- SOLICITATION OF EMPLOYEES.

Customer shall not solicit, hire, employ, retain, or contract with any employee of AlphaRidge, directly or indirectly without first receiving AlphaRidge’s written consent, which may be withheld in AlphaRidge’s discretion. If any employee involved with the delivery of these Services terminates his or her employment with AlphaRidge (regardless of the reason for termination), and is employed by Customer (or its affiliate or subsidiary during the term of this agreement or within a 6-month period thereafter, Customer shall immediately pay AlphaRidge an amount equal to 150% of the then-current yearly salary or wage paid by AlphaRidge to such employee.

14. DISCLAIMER & LIMITATION OF LIABILITY. 

In addition to all other limitations of liability contained hereunder, AlphaRidge’s liability under this Agreement is limited to the actual, direct damages incurred by Customer arising out of or related to AlphaRidge’s performance of this Agreement, and AlphaRidge’s total cumulative liability for all claims made by Customer in connection with this Agreement, including with respect to contribution or otherwise relating to third party claims, shall in no event exceed the amount actually paid by Customer for the Services during the six (6) month period immediately prior to the act or omission giving rise to the claim of loss (or in the case of more than one act or omission of the same nature, the initial such act or omission). In no event shall AlphaRidge be liable for any incidental, consequential, special, indirect, punitive or third-party damages or claims, including but not limited to lost profits or revenue, lost savings, lost productivity, loss of data, systems hacking by third parties, loss of use of equipment and loss from interruption of business, even if previously advised of their possibility and regardless of whether the form of action is based upon breach of warranty, breach of contract, negligence, strict liability in  tort  or  any  other  legal  theory  even  if AlphaRidge has been advised of the possibility of such damages.

14.1  Specific Additional Limitations.

In addition to the foregoing limitations in this Section 15, and as elsewhere provided for in this Agreement, AlphaRidge will not be liable except and to the extent provided for under the following circumstances:

A.  In the event that the Customer fails to use the recommended backup software and all applicable procedures relating to the same, and a Data Loss occurs, AlphaRidge’s total cumulative liability with respect to Data Loss during the term, will be capped in an amount not to exceed an amount equal to the Monthly Managed Service Fee for a single month.  

B.  AlphaRidge will not be liable for any loss or damages caused to the Customer’s hardware or software or other IT systems if the Customer fails or refuses to have installed, or otherwise fails to use AlphaRidge recommended security suite with Antivirus and Antimalware.

C.  AlphaRidge will not be liable for any loss or damages caused to the Customer’s hardware or software or other IT systems where the hardware or software is employed past its life and the Customer fails or refuses to upgrade it, after notice. 

In the event that, notwithstanding the foregoing limitations, a claim is nevertheless made against AlphaRidge, or any of its officers or employees, related to or in excess of the limitations set forth above,  whether by the Customer or by a third party, then the Customer will indemnify and defend AlphaRidge and hold AlphaRidge harmless from the same, which indemnity will include without limitation all costs and expenses, including reasonable attorneys’ fees, incurred by AlphaRidge as a consequence of defending the same.

15. FORCE MAJEURE.

Neither Party will be liable for any delay or failure in performance under this Agreement or any Quote due to any cause that is beyond its reasonable control and for which it is without fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, cable cuts, power blackouts affecting facilities other than facilities of a kind commonly protected by redundant power systems, unless such redundant power systems are also affected by such condition, unusually severe weather conditions, fuel or energy shortages, inability to secure products or services of other persons or transportation facilities, acts or omissions of transportation common carriers, other causes beyond a Party’s reasonable control, whether or not similar to the foregoing (collectively, “Force Majeure Events”). Upon the occurrence of a Force Majeure Event, the Party whose performance is affected shall give written notice to the other Party describing the Force Majeure Event, and the Parties shall promptly confer, in good faith, to agree upon equitable, reasonable action to minimize the impact, on both Parties, of such condition, including, without limitation and if applicable implementing disaster recovery services. The Parties agree that the Party whose performance is affected shall use commercially reasonable efforts to minimize the delay caused by the Force Majeure Events.

In the event the delay caused by a Force Majeure Event lasts for a period of more than thirty (30) days, the Parties shall negotiate an equitable modification to the affected Quotes. If the Parties are unable to agree upon an equitable modification within fifteen (15) days after such thirty (30) day period has expired, then either Party will be entitled to serve a thirty (30) days’ notice of termination on the other Party with respect to the affected Quotes. If the Force Majeure Event is continuing upon the expiration of such thirty (30) day notice period, performance referable to the applicable Quote, or the portion thereof impacted by the Force Majeure Event, will automatically terminate. The remaining portions of the Agreement and Quotes not impacted by the Force Majeure Event will continue in full force and effect. Customer shall pay AlphaRidge for Services through the date on which the applicable Quote is terminated due to a Force Majeure Event. Financial problems or an inability to pay amounts due hereunder are not Force Majeure Events

16. DISPUTE RESOLUTION.

16.1 Arbitration Procedures

In the event of a dispute that does not relate to payment obligations by Customer, the Parties shall attempt to settle amicably by mutual discussions any disputes, differences, or claims related to this Agreement within sixty (60) days after the date on which one Party notifies the other in writing of a dispute. Each Party agrees to involve personnel with decision making authority in such discussions. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall be heard exclusively in the federal or state courts located in New York County New York or the Southern District of New York.  

 New York law shall govern this Agreement and each Parties’ performance hereunder, without reference or giving effect to any conflicts of laws principles. The Parties hereby irrevocably submit such court’s exclusive jurisdiction and venue for any such dispute between them and waive all rights they may have to a jury in any legal proceeding arising from or relating to this Agreement.   To the full extent permitted by law, Customer further waives all rights it may have to initiate or join any class action litigation or class arbitration against AlphaRidge relating to this Agreement (and any applicable SOWs) or any hardware or the Services provided hereunder. 

16.2 Attorneys’ Fees

If any action is necessary to enforce the payment of monthly monetary obligations, the substantially prevailing Party will be entitled to reasonable attorneys’ fees and costs in addition to any other relief to which such Party may be entitled, together with the costs of arbitration.

16.3 Period for Bringing Claim

Any dispute arising from or relating to this Agreement shall be filed within one (1) year after a  Party first acquires or reasonably should have acquired knowledge of the first act, occurrence or omission upon which such claim or cause of action, or any part thereof, is based, and in any event before the date on which any judicial action upon the same dispute would be barred under any applicable statute of limitations; otherwise, the claim on the dispute is forever barred. The applicable New York State statute of limitations, and not the six month limitation period, will apply to affirmative claims by AlphaRidge arising from Customer’s failure to pay amounts due to AlphaRidge under this Agreement.  

16.4 Continued Service

AlphaRidge may, without waiving any claim, continue to provide the Services under this Agreement throughout any dispute resolution mechanism, at the ordinary rates payable therefore.  AlphaRidge also reserves the right to withhold or suspend Services hereunder without liability to Customer in the event that the Customer has committed a breach of any material provision of this Agreement (including non-payment) and such breach continues for more than thirty (30) days after written notice from AlphaRidge reasonably identifying such breach (email to suffice).  

17. GENERAL.

17.1 Notices

Except as otherwise provided under this Agreement, notices or  demands by any Party shall be in writing and shall be deemed to have been duly given on the date delivered (or the date of refusal to accept delivery) in person, or by commercial courier service.  The address to which such notices or demands must be given by either Party are set forth in the Schedule/SOW and may be changed by written notice given by such Party to the other Party pursuant to this section.

17.2 This agreement will be governed by the laws of the State of New York.

Entire Agreement. This Agreement, together with any related SLA, contains the full understanding of the Parties with respect to the provision of development services by AlphaRidge to Customer and supersedes all prior understandings and writings relating to the subject matter of this Agreement.

Waiver/Amendment. The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege by such Party.  No waiver, alteration or modification of any of the provisions of this Agreement shall be binding unless made in writing and signed by the Parties by their respective officers thereunto duly authorized.

Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law or any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular provisions held to be unenforceable.

Counterparts/Execution. This Agreement may be executed in any number of counterparts, each of which shall be considered one and the same agreement and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Party in original, electronically in Adobe® PDF file format, by facsimile transmission, or electronic signature services, such as DocuSign®.