2.1  Services. EdgePrizm hereby expressly grants Customer a nonexclusive, worldwide license to access and use the Services during the term of the associated Service Order in accordance with this Agreement. Subject only to the foregoing, EdgePrizm retains all worldwide rights, title and interest in and to the Services, EdgePrizm equipment, network and methodologies, software and intellectual property rights embodied therein or related thereto, whenever developed. Customer shall not either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Services (including any related software, hardware or information).   

 2.2   Customer grants to EdgePrizm, and its agents, suppliers and subcontractors, the right to access and use, ingest, reproduce, duplicate, format, store, distribute, display and perform Customer Content and associated metadata as necessary to provide the Services. Subject only to the foregoing, Customer retains all rights, title and interest in and to Customer Content and intellectual property rights embodied therein or related thereto. EdgePrizm shall not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content. “Customer Content” means any digital assets and data provided by Customer for storage, delivery or other processing associated with the Services, uploaded or routed to, passed through and/or stored on or within EdgePrizm's applicable network or otherwise provided to EdgePrizm. 

  3.1  Fees. EdgePrizm’s fee shall be set forth in the Service Order or Statement of Work (the "Fee(s)").  

  3.2  Terms of Payment. Customer shall pay EdgePrizm within seven (7) days after receipt of an invoice. All invoices may be provided to Customer electronically. Customer shall remit payment to EdgePrizm via Credit Card, ACH or direct wire, unless EdgePrizm provides notice to Customer otherwise. A surcharge of 3% will be applied to all Credit Card transactions.  All charges shall be invoiced and payable in United States dollars, unless otherwise mutually agreed in writing. If an invoice is unpaid by the due date, EdgePrizm may, in its sole discretion: (i) suspend Services under the delinquent Service Order or SOW; and (ii) apply a late charge on the unpaid amount equal to the lesser of 1.5% interest per month or the maximum rate allowed by law on the delinquent Service Order or SOW. If Customer desires to dispute in good faith an invoiced amount, Customer shall, within the payment period for each invoice, (i) pay the undisputed amount and (ii) provide notice of the details of the disputed amount, together with all supporting documentation. The Parties shall work diligently to promptly resolve the dispute and upon resolution, Customer shall promptly pay to EdgePrizm all amounts found to be owed to EdgePrizm.  

  3.3  Expenses. Customer shall reimburse EdgePrizm for travel and other reasonable out-of-pocket expenses.   

4.1  Term. This Agreement shall commence on the Effective Date and will continue until terminated.  

  4.2  Termination for Cause. If a Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice from the non-breaching Party, the non-breaching Party may terminate this Agreement and/or the Service Order(s) or Statement of Work giving rise to the breach upon written notice. To the extent permitted by applicable law, this Agreement will terminate immediately upon notice by a Party if the other Party becomes insolvent, is named in a petition for bankruptcy that is not dismissed within sixty (60) days after filing, ceases to function or conduct operations in the normal course of business, or makes an assignment for the benefit of its creditors. In addition, EdgePrizm may terminate the applicable Services for which payment has not been received upon notice to Customer if Customer fails to pay the applicable invoice within 7 days from the due date, in accordance with this Agreement.  

  4.3  Termination for Convenience. Customer may terminate this Agreement without cause by providing EdgePrizm with no less than thirty (30) days written notice. Customer may terminate any Service Order in whole or in part by providing EdgePrizm with thirty (30) days written notice specifying the effective date of termination and Customer shall reimburse EdgePrizm for the Services actually provided to Customer up to and including the effective date of termination at the rates set forth in the Service Order and an early termination charge in such amount as set forth in the applicable Service Order, SOW, or Service Supplement. Such early termination charge is agreed by the Parties to be liquidated damages and is not a penalty.  

  4.4  Effect of Termination. Termination of this Agreement alone will not result in the termination of any Service Order(s) previously entered into, and the terms of this Agreement will continue in effect for purposes of such Service Order(s) until the Service Order terminates. The sole effect of terminating this Agreement will be to terminate the ability of either Party to enter into subsequent Service Orders that incorporate the terms of this Agreement. The sole effect of terminating a Service Order shall be to terminate the continued furnishing of Services under the Service Order, and all assignments of rights shall survive. Upon expiration or termination of the applicable Service Order, or SOW for any reason, (i) all Customer rights to access or use Services shall terminate and EdgePrizm shall cease providing same, (ii) Customer shall pay to EdgePrizm all fees or charges accrued but unpaid, (iii) all liabilities accrued before the date of expiration or termination shall survive, and (iv) EdgePrizm shall return or destroy all Customer Content to Customer as directed by Customer. 

EdgePrizm will provide the Services solely as an independent contractor. No employer-employee or agency relationship exists between the Parties. Customer shall exercise no immediate control over the actual manner of EdgePrizm’s performance under this Agreement. EdgePrizm may provide consulting or other services of any kind whatsoever to any person or entity as EdgePrizm in its sole discretion deems appropriate.  

EdgePrizm may subcontract any of the Services or engage third party vendors to provide the Services. 

7.1 Tax Liability. Customer shall pay all taxes, fees and assessments due, imposed, assessed or levied against any of the goods or services contemplated in this Agreement, by any federal, state or local government or taxing authority including, without limitation, all sales, use, customs, excise or transactional gross receipts taxes or any similar transactional taxes (“Taxes”).  

EdgePrizm may use Customer’s name, or otherwise expressly or impliedly refer to Customer in any publicity, advertising, promotional literature, press release or other form of public disclosure that relates to this Agreement.  

  9.1  Neither Party will violate any law, regulation or contractual obligation by entering into or performing this Agreement. For the avoidance of doubt, both Parties shall comply with all applicable laws, regulations, and standards regarding anti-corruption, anti-bribery, and trade compliance.  

  9.2  Each Party represents and warrants that it possesses the full right, power and authority to enter into and fully perform the Agreement and grant the rights granted herein.  

  9.3  Customer has obtained and maintains applicable permissions to conduct its business operations in countries where U.S. or other governmental sanctions or embargo provisions may prohibit the provision of services.  

  9.4  Warranty Disclaimer. Each Party disclaims all implied conditions, representations, and warranties. EdgePrizm does not represent or warrant that the use of the Services will be uninterrupted or error-free.  

  10.1  Definition and Use. The term “Confidential Information” means all non-public information of a Party in any form that is identified as confidential or that by the circumstances surrounding disclosure ought to be treated confidential. The receiving Party shall use the Confidential Information solely for the purpose of performing under this Agreement, and, except as otherwise permitted by this Agreement, will keep such Confidential Information strictly confidential. The receiving Party shall only disclose Confidential Information to its employees, consultants, contractors, agents and representatives who need to know such information and have executed a similar confidentiality agreement or are subject to a professional duty of confidentiality.  

The receiving Party is responsible for any breach of this Agreement by its employees, consultants, contractors, agents or representatives. The receiving Party will return or destroy all Confidential Information in written or electronic form in a manner that renders all Confidential Information unrecoverable at the disclosing Party’s request.  

  10.2  Exclusions. The confidentiality provisions of this Agreement do not apply to Confidential Information that: (a) becomes available to the public or to the receiving party through and intentional release of the disclosing Party; (b) is independently developed by the receiving Party without the benefit of the disclosing Party’s Confidential Information; or (c) is disclosed with the prior written consent of the disclosing Party.   

  10.3  Requested Disclosure. If the receiving Party is required by law or requested by interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process to disclose any Confidential Information, such Party will not disclose any of the disclosing Party’s Confidential Information and shall provide the disclosing Party with prompt written notice of such request or requirement so that the disclosing Party may seek an appropriate protective order or the receiving Party’s compliance with the provisions of this Agreement.   

  11.1  Insurance Coverage. EdgePrizm agrees to obtain and maintain, directly or through its parent entity, insurance during the Term of this Agreement in accordance with the terms and conditions set forth below:  

1. Commercial General Liability (including completed operations and contractual liability coverage) with limits (in combination with excess liability insurance) of $1,000,000 per occurrence combined single limit and $1,000,000 in the aggregate. 

2. Products - Completed Operations Liability coverage of $1,000,000 combined single limit including Cyber/Privacy Breach Response Insurance. 

3. Cyber/Privacy Breach Response Insurance in an amount not less than $1,000,000 combined single limit.  

4. EdgePrizm may self-insure the first $1 million of any occurrence or retain through a deductible any portion of the insurance required under this Agreement. 

  11.2 Customer.  Customer agrees to obtain and maintain insurance in effect at all times during the Term in accordance with the terms and conditions set forth below (unless otherwise agreed to by EdgePrizm):  

1) Commercial General Liability (including completed operations and contractual liability coverage) with limits (in combination with excess liability insurance) of $1,000,000 per occurrence combined single limit and $1,000,000 in the aggregate. 

2) Cyber/Privacy Breach Response Insurance in an amount not less than $1,000,000 combined single limit.  

Both parties shall maintain Worker’s Compensation and Employer’s Liability insurance, where permitted by Law, in an amount and form necessary to comply with its statutory obligations.  

The liability insurance limits required herein may be obtained through any combination of primary, excess or umbrella liability insurance.  Upon written request, each party will deliver to the other party certificates of insurance which evidence the minimum levels of insurance set forth above and provide not less than thirty (30) days prior written notice of material modification to or cancellation of any herein required policy.  Such insurance policies shall provide that the insurance companies and any approved self-insured employer waive all rights of subrogation for such amounts against the other party and its respective affiliates, officers, directors and employees. 

  12.1  EdgePrizm IP Infringement Indemnification.  EdgePrizm shall defend Customer (at EdgePrizm's expense) against any claim, suit, action or proceeding (an “Action”) brought against Customer or any of its affiliates by a third party contending that Customer’s use of the Services, or any part thereof, infringes upon a U.S. copyright or U.S. patent of such third party.  Subject to Section 13, EdgePrizm shall pay any damages finally awarded to such third party by a court of competent jurisdiction or final binding arbitration resulting from such Action or agreed to by EdgePrizm in settlement of the Action in EdgePrizm’s sole discretion.  In the event that the Services or any part thereof are likely to, in EdgePrizm’s sole opinion, or do become the subject of an infringement related Action, and EdgePrizm cannot, at its option and expense, procure for Customer the right to continue using the Services, or any part thereof, or modify the Services, or any part thereof, to make them non-infringing, then EdgePrizm may terminate the Services.  EdgePrizm shall have no liability for any Action or demand arising from (i) an allegation that does not state with specificity that the Services are the basis of the Actions, (ii) the use or combination of the Services or any part thereof with software, hardware, or other materials not developed by EdgePrizm if the Services or use thereof would not infringe without such combination, (iii) modification of the Services by a party other than EdgePrizm, if the use of unmodified Services would not constitute infringement, (iv) Customer's failure to install an enhancement provided at no additional charge that would have avoided the alleged infringement, (v) open source software, or third party services, (vi) an allegation of infringement deriving from Customer’s general use or exploitation of the Internet, or (vii) an allegation made against Customer prior to the execution of this Agreement or any allegation based upon actions taken by Customer prior to the execution of this Agreement, or relating to any patent that Customer was aware of prior to the execution of this Agreement.  Customer represents that it has brought to EdgePrizm’s attention any such prior or existing or known patent or other intellectual property Actions, demands or allegations, in writing, prior to the execution of this Agreement. The foregoing states EdgePrizm’s entire liability and Customer’s exclusive remedy for intellectual property rights infringement.    

  12.2  Indemnification by Customer.  Customer shall defend, indemnify and hold EdgePrizm, its affiliates, employees, officers, directors and shareholders harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with Actions (i) made or brought against EdgePrizm by a third party alleging that Customer Data submitted to the Services infringes the intellectual property  rights of, or has otherwise harmed, a third party, (ii) which arise out of or relate to  the scanning, testing and/or evaluation of incorrect or unauthorized IP Addresses that are provided by Customer, (iii) based upon any user’s use of the Services not in accordance with the terms hereof, or (iv) based on any failure or alleged failure of the Customer to comply with any applicable law, rule or regulation in connection with its use of the Services including, without limitation, all federal, state, local and foreign consumer privacy and personal data protection laws and regulations.    

  12.3 Indemnification Procedures. Each party’s obligations under this Section 12 shall arise only if: (a) the party seeking to be indemnified (the “Indemnified Party”) promptly notifies the other party (the “Indemnifying Party”) within thirty (30) days of  learning of any Action for which indemnification is sought; (b) the Indemnifying Party has sole control of the defense and settlement of such Action, provided that the indemnified party shall have the right to participate in such defense or settlement with counsel at its selection and at its sole expense; and (c) the Indemnified Party fully cooperates with the Indemnifying Party at the Indemnifying Party’s expense.    

 In no event will the total liability of either Party to the other Party for all claims for damages under this Agreement exceed the cumulative amount of fees paid or payable to EdgePrizm under all Service Orders and SOWs during the twelve (12) months preceding the most recent claim.  

In no event will either Party or its third party contractors, agents, licensees, successors, transferees and assignees, and their respective agents, officers, directors and employees be liable to the other Party or its affiliates, third party contractors, agents, licensees, successors, transferees and assignees, and their respective agents, officers, directors and employees for any consequential, incidental, indirect, punitive or special damages (including loss of profits, business or good will) in connection with any products or Services or otherwise under this Agreement, whether or not liability is based on breach of contract, tort, or any other legal theory, even if it is advised of the likelihood of such damages.  

The laws of the State of Delaware govern all matters with respect to this Agreement, without regard to its conflict of laws principles and the Parties irrevocably submit to the exclusive jurisdiction of any such court and agree not to plead to the contrary.

During the Term of this Agreement and for one (1) year thereafter, both parties agree not to directly solicit or hire any of the other party’s employees with whom it has had contact in the course of the Services which are the subject of this Agreement, unless the hiring party obtains the prior written consent of the other party.    

Neither Party may assign this Agreement without providing the other Party with prior written notice.  

Notices must be in writing. All notices must be sent by email. Notices may additionally be sent via overnight carrier, hand delivery, or by certified mail. Notice shall be deemed received upon: (a) confirmation of receipt from the recipient via email; (b) written verification of receipt from an overnight courier; (c) verification of receipt of certified mail. 

  19.1  Survival of Terms. The following provisions will survive any expiration, cancellation or termination of this Agreement: Sections 3, 8, 9, 10, 12, 13.  

  19.2  Counterparts. This Agreement may be executed, including by electronic signature, in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument. A scanned copy of the executed Agreement or counterpart shall be deemed, and shall have the same legal force and effect as, an original document.  

  19.3  Writing Required, Waiver. This Agreement is not binding until signed by an authorized representative from each Party. No amendment, modification, extension, release, discharge or waiver of this Agreement, shall be binding until signed by an authorized representative from each Party. No oral agreement shall be binding on either Party until reduced to writing and signed by an authorized Representative from each Party. A waiver by either Party of any covenant or breach shall not be construed to be a waiver of any subsequent breach or of any other covenant.  

  19.4  Cumulative Rights. All rights and remedies in this Agreement shall be cumulative and none of them shall be in limitation of any other rights or remedies of either Party.  

  19.5  Severability. If a provision of this Agreement is deemed illegal or unenforceable by a court of competent jurisdiction, such holding shall not render the Agreement unenforceable or illegal as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.  

  19.6  Force Majeure. Neither Party shall be liable to the other Party for any damages resulting from a failure or delay of performance due to a force majeure event beyond the reasonable control of and not resulting from the fault or negligence of the affected Party, except that an EdgePrizm information security incident shall not relieve either Party of its financial obligations under this Agreement. Force majeure events include: acts of God, civil disorders, rebellion, fires, explosions, floods, strikes, war, terrorism, natural disaster, epidemic, failure of utilities, and acts of governmental authorities, malicious online attacks, (provided that the Party claiming such cause has taken commercially reasonable steps to prevent such attacks), or other causes beyond such Party’s reasonable control (each, a “Force Majeure Event”). If the affected Party’s obligations become impossible because of a force majeure event that exceeds or is reasonably certain to exceed thirty (30) calendar days, either Party may terminate the affected Service Order upon notice or both Parties may agree to delay performance pending removal of the force majeure event; provided, that, in the case of termination by Customer, Customer first provides EdgePrizm an opportunity to promptly replace the affected Service with a comparable Service. Upon such termination, EdgePrizm is entitled to payment of all accrued but unpaid fees or charges incurred through the date of such termination, less any credit for breach of an applicable service level agreement.   

  19.7  Complete Agreement. This Agreement, including any Statements of Work, Service Orders and Exhibit(s), constitute the sole and only agreement of the Parties and supersedes any prior understandings or written or oral agreements between the Parties respecting the subject matter of this Agreement.    

  19.8  No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.  

  19.9  Construction. Descriptive headings in this Agreement are for convenience only and shall not affect the construction of this Agreement. The terms “include,” “including” or “e.g.” mean “include, without limitation”. The term “day” means calendar day unless otherwise indicated. Terms with well-known technical or industry meanings are so construed. Each Party and its counsel have fully reviewed and contributed to this Agreement. Any rule of construction that ambiguities are resolved against the drafting Party shall not apply in interpreting this Agreement. 

Customer shall use the Services solely for lawful purposes and in accordance with this Agreement. Customer shall not use, and shall not permit any third party to use, the Services in any manner that, in EdgePrizm’s sole and reasonable discretion: (a) violates any applicable law, regulation, or third-party right; 

 (b) threatens, degrades, or compromises the security, integrity, availability, or performance of the Services or any underlying network, infrastructure, or systems; (c) exposes or is reasonably likely to expose EdgePrizm or any of its affiliates, partners, or customers to legal liability, reputational harm, or regulatory scrutiny; 

 (d) constitutes abuse, harassment, fraud, or interference with other customers or users; or (e) is otherwise harmful, objectionable, or inconsistent with EdgePrizm’s acceptable use policies or other policies, as updated from time to time. 

 
 
EdgePrizm may, in its sole discretion, suspend, throttle, restrict, or terminate Customer’s access to the Services, in whole or in part, immediately and without prior notice, if EdgePrizm determines that: (i) the Services are being used in violation of this Agreement or applicable law; (ii) Customer’s use poses or may pose an actual or reasonably anticipated risk to the security, stability, integrity, or operation of EdgePrizm’s network, platform, or other customers; (iii) such action is required by applicable law, regulation, or a governmental or regulatory authority; or (iv) such action is otherwise necessary to protect EdgePrizm’s business, infrastructure, systems, or reputation. 

 
 
EdgePrizm will use commercially reasonable efforts to provide advance notice of any suspension where practicable, but shall have no obligation to do so. Any suspension or termination under this section shall not relieve Customer of its obligation to pay all fees accrued prior to the effective date of such action. To the maximum extent permitted by law, EdgePrizm shall have no liability to Customer for any losses, damages, or expenses arising out of or related to any suspension, restriction, or termination exercised in good faith pursuant to this section.