SUPPORT SERVICES AGREEMENT

LAST UPDATED ON JANUARY, 20 2025.

This Support Services Master Agreement ("Agreement") is made and entered into as of later of the signature dates of the Order Form (“Effective Date”), by and between Efficium LLC., a North Carolina limited liability company ("Efficium" or “Company”), and the Customer as shown on the applicable Order Form(s) and / or Service Order(s).  

RECITALS  

1. Customer, as a prioritized objective, wishes to contract with Efficium to provide certain information technology support services for its business.  

1. Efficium, as one of its primary business endeavors, provides technology support services.  

1. Customer desires to retain Efficium for the purpose of outsourcing certain information technology services and Efficium desires to support Customer subject to the terms and conditions set forth within this Agreement.  

TERMS AND CONDITIONS  

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth below, the parties hereto do hereby covenant and agree as follows:    

Customer Responsibilities.  In addition to other obligations set out in this Agreement, Customer agrees to (a) if applicable, permit Efficium’s employees, contractors or agents to install, maintain and update on Customer’s premises or by means of remote access any routers or related network hardware and/or software necessary for Efficium to provide technology support services, (b) take responsibility for customer damaged equipment, (c) comply with all rules, policies, guidelines and other requirements with respect to the services, hardware (where applicable) and software (where applicable) provided to Customer by Efficium, (d) comply with all federal, state, and local laws and regulations applicable to Customer, (e) protect and not allow unauthorized use of Customer’s administrator user name and password and/or the user names and passwords of authorized users, and (f) notify Efficium immediately if Customer becomes aware of any unauthorized use or access.   

Subject to the terms of this Agreement and as permitted by applicable law and the Rules of the North Carolina State Bar, Customer hereby grants to Company a nonexclusive, nontransferable license to use any of Customer’s Confidential Information (as defined below) reasonably necessary for Company to perform the Services, and shall provide all reasonable cooperation to Company with respect to its performance of the Services, including, but not limited to, access to appropriate personnel, facilities, and equipment (including but not limited to servers, devices, and computers), prompt notification of any occurrence of damage to the Software or damage caused by the Services, or any errors, nonconformities or interruptions in the Services.  Customer must also ensure that Company is provided with a minimum level of connectivity to Customer’s servers, to be agreed by the parties, in order for Company to adequately provide the Services.  Customer acknowledges and agrees that all Services shall be performed remotely, as much as possible and on-site tasks shall be Customer’s responsibility with the assistance of Efficium as required.    

Customer acknowledges that Company exercises no control over the content of the information passing through Customer’s website(s) and that it is the sole responsibility of Customer to ensure that the information it transmits and receives complies with all applicable laws and regulations. 

1. Definitions.  

2. “Customer” means the party to whom Services are provided pursuant to a Services or Sales Order.  

1. “Company” means Efficium LLC or any Partner affiliate whose product or service is being provided to customer.  

2. “Company-Provided Hardware” means any hardware provided to customer as a loan as part of a Service Order and not sold to Customer.   

3. “Custom Services” means services provided on an hourly, daily, or project basis as defined in an Order Form(s). These services define the delivery scope and cost in the Order Form(s). The hourly schedule of rates for Services outside of or in addition to those in the Order Form(s) and / or SOW(s) shall be included and made a part of this Agreement. 

1. “Documentation” means the end user documentation to the Company Software, if any, which Company makes available pursuant to this Agreement.  

1. “Intellectual Property Rights” means all rights in intellectual property of any type throughout the world, including but not limited to, patents, trade secrets, copyrights, industrial designs, trademarks and service.  

2. “Order Form” or “Service Order” or “Scope of Work” or “SOW” means the Customer ordering document (or online endorsed facsimile ordering form or quote acceptance form) to which these Service Agreement Terms and Conditions govern, which shall be completed by Customer and accepted by Company prior to any provision of Services.  All fully executed and accepted Order Forms or quotes for services shall be deemed incorporated in this Agreement.  If Customer issues a purchase order or any other order form for any Services, the terms of this Agreement shall supersede all terms and conditions of Customer’s purchase order.  

3. “Partner” means affiliates of Company that provide products or services to Efficium’s Customers through relationships whereby Company resells (Reseller) the Partners products or services to Customers.  

4. “Services” means the services provided by Company that are described in the applicable Order Form(s) and / or SOW(s) corresponding to the Customer’s Order Form.  Services may be delivered at the Customer’s premises or, more generally, remotely as a managed service. Services shall also include all software and Intellectual Property licenses to any licensed software included in the Services product offering as defined in the Service Order. Services may also include Custom Services as defined on an Order Form(s).  

5. “Software” means the software, as further described in the Order Form(s) and / or SOW(s), provided to Customer in conjunction with the provision of the Services. “Company Software” means the software provided by Company and provided to Customer in conjunctions with the provision of the Services. Software may also be delivered as a service (Software as a service “SAAS”) remotely to Customers. “Third Party Software” means the software owned by third party providers (including Open Source community providers) and provided in conjunction with the provision of the Services.    

6. “Term” means the term described in Section 9.1 and further defined in the Order Form(s), including all renewals.  

1. Confidential Information.  

1. Confidential Information means information which is of value to the Disclosing Party and which is generally not known to persons or entities outside of the Disclosing Party, and which the Disclosing Party treats as confidential, in each instance whether written, oral or otherwise, whether or not patentable or copyrightable, that the Disclosing Party either marks in good faith as “Confidential” or otherwise informs the Receiving Party in writing (including, without limitation, by this Agreement) is confidential or that Receiving Party should reasonably know is confidential.  Notwithstanding the foregoing, the Disclosing Party’s Confidential Information does not include information that is (a) known by the Receiving Party at the time of receipt from the Disclosing Party, (b) approved in writing for release from this provision by the Disclosing Party, (c) now or which hereafter becomes part of the public domain through no action or omission of Disclosing Party, (d) independently developed by the Receiving Party without access to or use of Confidential Information, or (e) acquired by Receiving Party from a third party without restriction on use or disclosure and without breach by such third party of an obligation of confidentiality.  

2. Maintenance of Confidentiality.  The Receiving Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party.  Without limiting the foregoing, the Receiving Party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and contractors who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees.  

3. Non-Use and Non-Disclosure.  The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose except to perform its obligations under this Agreement.  

4. Ownership.  All Confidential Information will remain the property of the Disclosing Party, and except for the limited rights granted in Section 3.1 by Company and Section 3.3 by Customer, no license under any patent, copyright, trade secret, or other intellectual property rights or other right to Confidential Information is granted or implied by the Disclosing Party to the Receiving Party by estoppel, inducement or otherwise.  

5. Use of Information by Efficium.  Notwithstanding anything contained in this Agreement to the contrary, Efficium may (a) use and disclose to third parties aggregate statistics, totals, numbers of users, comparisons to averages, and similar information for Efficium’s marketing and internal purposes and (b) view, access and use reports with respect to Customer’s network(s) for Efficium’s internal purposes, including, without limitation, to support the service provision and document performance levels.  

1. Services and License Grants.  

1. Services.  Upon acceptance of an Order Form, subject to these terms and conditions and provided that Customer have met the requirements set forth on the Order Form and provide Company with necessary access, Company shall provide the Services described in the applicable Order Form(s) and / or SOW(s).  Company shall have no liability for any delay in the provision of Services caused by Customer or Force Majeure.  Company reserves the right to suspend provision of the Services for purposes of repair, maintenance or improvement, provided that Company will use reasonable efforts to provide prior notice to Customer and minimize disruption to the Services.     

1. Delivery of Custom Services. The purpose of this provision is to enable Company to provide Customer with project-based services or other limited services and equipment needed by Customer on a “one-off” or emergency basis where such services are not included within the scope of the Services as described in the Services Order.  Certain of these services will be quoted on the service order defining the scope, duration and cost.  Emergency services may include, as an example, a request from Customer to Company via telephone that Company immediately reconfigure, update or otherwise modify Hardware.  Company shall notify Customer of the fees for any Custom Services requested by Customer and obtain Customer’s documented approval prior to providing such services.  Customer agrees to pay Company the approved fees charged by Company for any Custom Services. All Custom Services provided pursuant to this Section are provided on an “as-is” basis and exclude warranties of any kind, whether express or implied.  

2. Billing for Custom Services.  Customer will be charged for supplemental services in the invoice issued the month following delivery of the supplemental services. Efficium will not perform supplemental services and/or incur supplemental charges without prior written approval by Customer.  

2. License.  Subject to the terms and conditions of this Agreement, Company grants Customer a nonexclusive, nontransferable limited license to (i) use the Services during the Term; and (ii) use and reproduce the Documentation, solely as necessary for Customers to use the Services as set forth herein, each in accordance with all applicable laws and regulations.   Customer is expressly prohibited from, and shall not assist in, reverse engineering, decompiling, modifying, copying, creating derivative works from, or otherwise using any of the Software or Documentation in any manner not expressly authorized by this Agreement. All licensed software provided in the Services is protected by copyright, patent and trade secret laws and international treaty provisions.  

3. Customer Managed SAAS Offerings.  Company provides some Services in the form of a software-as-a-service (“SAAS”) offering.  If Customer elects to order this Customer managed SAAS offering, as further described in the applicable Order Form(s) or Statement of Work (SOW), upon Company’s acceptance of same, Company will provide a means for the Customer to directly activate the Service or will deliver to the email address specified by Customer on the Order Form(s) a link to the SAAS offering for purposes of enabling Customer to activate the Service (“Activation Link”).  Company considers the Order Form accepted by Company for this Service as a firm order and, therefore, the Service Commencement Date for these Services is the date on which the Activation Link is sent to Customer and Efficium instructs Customer how to initiate the service, as Customer is then in control of initiating the service, regardless of whether Customer actually initiates the Service. If no Activation Link is sent to Customer, the Service Commencement Date is on the first day Company has established communication with the contracted Customer network environment or device and alerted Customer of the same. For any Service that entitles Customer to more than one product, the Service Commencement Date for all services is the date on which the Activation Link for all products has been sent to Customer and Efficium instructs Customer how to initiate the services, regardless of whether Customer actually initiates the Service. If no Activation Link is sent to Customer, the Service Commencement Date is on the first day Company has established communication with the contracted Customer network environment or device for any of the products and alerted Customer of the same.  

4. Services or Software Offerings requiring Hardware.  Company also provides service and software offerings that require the use of Company-provided Hardware.  If Customer elects to order this type of a Service offering, as further described in the applicable Schedule, upon Company’s acceptance of the Schedule, Company will deliver the applicable Hardware to Customer at the address specified by Customer on the Schedule.  Company considers the Schedule accepted by Company for this Service as a firm order and, therefore, the Service Commencement Date for these Services is the earlier of:  (A) Customer’s activation of the applicable software following receipt of such Hardware; or (B) ten (10) days following Customer’s receipt of the initial Hardware as Customer is then in control of the asset and can direct the use of thereof, regardless of whether Customer actually initiates the Service, unless Service Commencement Date is defined otherwise on the Service Order.  For any Service that entitles Customer to more than one product, the Service Commencement Date for all services is the earlier of (i) Customer’s activation of the full suite of software products; or (ii) ten (10) days following the receipt of all product-related hardware to Customer. By way of example, if Customer purchases services with multiple hardware appliances, the Service Commencement Date would be ten (10) days after  the appliances are received by Customer that are related to any of the products within the Company services or software solution as Customer is then in control of the asset and can direct the use of thereof, or sooner if solution has been fully activated by Customer. In all service situations requiring hardware, Customer will act as reasonably instructed by Company in the receipt and prompt deployment of hardware and related software. 

1. Subject to the terms and conditions of this Agreement and the applicable Schedule, Company hereby loans to Customer the applicable Hardware required for the purpose of enabling the Services. The Hardware is loaned, not sold, to Customer, for use solely during the applicable Service Term, and remains the property of Company at all times. Customer will maintain and protect the Hardware in good working condition with the exception of any reasonable wear and tear. Customer will not modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or copy the Hardware (including any software or firmware that is part of, incorporated into or running on the Hardware). Customer assumes all risk of, loss, damage, theft, or destruction of the Hardware while it is in the Customer’s possession or control or that of its agents, including any carrier (except any carrier transporting the Hardware from the possession of Company to Customer), and Customer will reimburse Company for any reasonable costs of necessary repair or replacement (including shipping costs). Customer will keep the Hardware free of all security interests, liens, and other encumbrances.  

1. Ownership. 

1. Intellectual Property.  Company and its suppliers and licensors retain for itself all right, title and interest in and to the Services, Software and Documentation, and all other designs, engineering details, schematics, drawings, specifications and other similar data which pertains to the Services and all proprietary and Intellectual Property Rights in the foregoing.  Efficium reserves all intellectual property and other proprietary rights in and to the services, platforms or bundles owned or delivered by Efficium but not specifically granted to Customer in this Agreement. Notwithstanding the foregoing, if the services provided involve the development of custom solutions for Customer (e.g., proprietary software), Company hereby agrees to assign, convey, and transfer any and all rights of ownership (copyright and otherwise) in the software to Customer such that Customer shall be the sole and exclusive owner of all rights, title, and interest in and to the software.    

2. Trademarks.  Customer shall not alter or remove any of Company’s, its suppliers or licensors trademarks affixed to the Software or Documentation or other service deliverables.  Nothing contained in this Agreement shall grant or shall be deemed to grant Customer any right, title or interest in Company’s or its suppliers or licensors trademarks or trade names.   

1. Fees and Billing.  

1. Minimum Fee.  Efficium has a minimum user monthly fee as defined on the Order Form(s) and / or Service Order(s).   

2. Invoices and Payment.  On the 10th of the month prior to service a snapshot of current user and device count is made for Customer.  Customer will be charged for the following month’s service based on this snapshot.  For example, if on April 10th a Customer has 50 users and 60 devices, and on April 11th the Customer adds their 51st user and five more devices (for a total of 65 devices), Customer will be charged for 50 users and 60 devices in May.  If on April 11th they remove a user to equate to 49 users, Customer will be charged for 50 users in May.  These changes would be reflected on June’s invoice.  

Customer will receive an invoice up to 10 days prior to the 1st of the month of service.  Customer invoice is due upon receipt and payment must be received by the 15th of the month of service.  For example, invoice will be delivered for May services on or about April 20th.  Such invoice would be late on May 16th.  

Payment not received by the 15th of the month of services are subject to a 7% late fee on all outstanding balance.  If payment is not received by the end of the month of service, support services may be suspended.  If payment is not received by the 15th of the month after services, all systems and services will be suspended until fees are received.  For example, fees not paid for April services by May 16th will result in access to the system and services shut down until all past due fees are paid.  

1. Right Size User and Resource Base.  Efficium will monitor users and resources (i.e. switches, wireless access points, etc.) being supported with one or more services  (but excluding those services in the Schedule(s)) on a quarterly basis throughout the Term of the Agreement.  Should the number of users and / or resources increase or decrease, Efficium will adjust those costs accordingly for the quarter.  Should a user change occur within the quarter, the change will take effect the following quarter. 

2. Pricing Commitment and Changes.  The pricing provided, with the exception of trial pricing, is committed for the then current Term.  Changes to the pricing schedule will be communicated no less than thirty (30) days in advance of the next Term (Renewal Term).  The pricing schedule is subject to an annual increase not to exceed five percent (5%). 

3. Taxes.  Each party shall be responsible for their own respective tax obligations.      

1. Representations and Warranties.  

1. Efficium Warranties.  Efficium warrants and represents that it will perform any and all services under this Agreement to the best of its ability and in accordance with industry standards to meet Customer’s needs, and any hardware in connection with the services will be installed in a workmanlike manner consistent with commercial standards in the network installation industry and that the Efficium servers and site installed equipment will work appropriately to deliver the in scope services.   

2. Customer Warranties.  

1. Customer represents and warrants that Customer’s services, products, materials, data, and information used by Customer in connection with this Agreement as well as Customer’s use of Services does not as of the Effective Date and will not during the Term operate in any manner that would violate any applicable law or regulation.  

2. Customer warrants and represents that, to the best of its knowledge: (a) Customer has obtained all permissions, licenses and/or sublicenses necessary for Efficium to install and maintain the Customer Software and Customer’s data and to operate the Customer Software, (b) Efficium’s copying and/or use of the Customer Software and Customer’s data do not and will not in any way constitute an infringement or other violation of any copyright, trade secret, trade dress, trademark, patent, invention, mask work, proprietary information, nondisclosure and/or other right of any third party, and (c) the Customer Software and Customer’s data do not and will not contain any feature which would in any way impair the operation of any of Efficium’s other software, other data, and/or hardware including, without limitation, (i) software locks, drop dead devices, back doors, time bombs, or other software routines which may disable a computer program automatically with the passage of time or under the positive control of a person other than Licensee, or (ii) any form of virus, a Trojan horse, worm or other software routines or hardware components which may permit unauthorized access or disable, erase, or otherwise harm software, hardware, or data.  

3. Breach of Warranties.  In the event of any breach, or reasonably anticipated breach, of Customer’s warranties herein, in addition to any other remedies available at law or in equity, Company will have the right to immediately, in Company’ sole discretion, suspend any Services if deemed reasonably necessary by Company to prevent any harm to Company or its business. 

3. Warranty Disclaimer by Company.     EXCEPT AS SET FORTH ELSEWHERE IN THIS AGREEMENT (INCLUDING IN SECTION 6.1) AND IN ANY REFERENCED ORDER FORM AND / OR SOW, THE SERVICES AND COMPANY TECHNOLOGY ARE PROVIDED "AS IS" AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO ACCURACY, FUNCTIONALITY, PERFORMANCE, MERCHANTABILITY OR NON-INFRINGEMENT. COMPANY AND ITS THIRD-PARTY LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. COMPANY AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, COMPLETENESS, SEQUENCE, TIMELINESS OR AVAILABILITY OF THE SERVICES. NO SALES PERSONNEL, EMPLOYEES, AGENTS OR REPRESENTATIVES OF COMPANY OR ANY THIRD PARTY ARE AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY OR COVENANT ON BEHALF OF COMPANY AND SHOULD NOT BE RELIED UPON AND ARE NOT PART OF THIS AGREEMENT. NEITHER COMPANY NOR ANY OF ITS AFFILIATES OR THIRD-PARTY LICENSORS REPRESENT OR WARRANT THAT THE SERVICES OR COMPANY TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES OR THIRD-PARTY TECHNOLOGY IS AT CUSTOMER'S SOLE RISK AND THAT COMPANY AND ITS THIRD-PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION OF SERVICES, DELAYS OR ERRORS CAUSED BY ANY TRANSMISSION OR DELIVERY OF THE SERVICES, DATA OR ANY OTHER INFORMATION OR CAUSED BY ANY COMMUNICATIONS SERVICE PROVIDERS. NOTWITHSTANDING THE FOREGOING WARRANTY DISCLAIMERS, COMPANY IS RESPONSIBLE TO CUSTOMER FOR ITS NONPERFORMANCE UNDER THIS AGREEMENT. THIS SECTION SHALL SURVIVE TERMINATION OR EXPIRATION AND NON-RENEWAL OF THE AGREEMENT.  

4. Disclaimer of Actions Caused by or Under the Control of Third Parties.  COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM COMPANY’S DATA CENTERS AND OTHER PORTIONS OF THE INTERNET.  SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.  AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S OR COMPANY’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, COMPANY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR.  ACCORDINGLY, COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.  

1. Limitations of Liability  

7.1. Consequential Damages Waiver.  IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.  

7.2. Basis of the Bargain; Failure of Essential Purpose.  Customer acknowledges that Company has set its prices and entered into this Agreement in reliance upon the limitations of liability set forth herein, and that the same form an essential basis of the bargain between the parties.  The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.  

1. Indemnification.  

8.1 Customer Indemnification. Customer agrees to indemnify, defend and hold harmless Efficium, its employees, subsidiaries, affiliates, successors and permitted assigns from and against all third-party suits and claims (collectively, a “Claim” or “Claims”), including reasonable expenses such as attorneys’ fees and court costs, to the extent such Claim is based, in whole or in part, on (i) Customer’s improper or unauthorized use of the Services, or (ii) any breach by Customer of its warranties.  Customer shall pay all damages or settlements resulting from a Claim, but Customer shall not enter into any settlement that affects Efficium’s rights or interest without Efficium’s prior written approval, which will not be unreasonably withheld.  Efficium reserves the right to participate in any litigation regarding a Claim under this section with counsel of its own choosing, at Efficium’s expense. In such an event, Customer shall (i) give Efficium sole control of the defense and settlement of the claim; (ii) provide to Efficium all available information, and (iii) not compromise or settle such claim without Efficium’s prior written consent.    

1. Efficium Indemnification. Efficium agrees to indemnify, defend and hold harmless Customer, its owners, employees, subsidiaries, affiliates, successors and permitted assigns from and against Claims,  including reasonable expenses such as attorneys’ fees and expenses, arising out of Efficium’s breach of obligations under this Agreement or out of any action or claim brought by a third party alleging copyright, patent, service mark or trademark infringement. Efficium shall pay all damages or settlements resulting from a Claim, but Efficium shall not enter into any settlement that affects Customer’s rights or interest without Customer’s prior written approval, which will not be unreasonably withheld. Customer reserves the right to participate in any litigation regarding a Claim under this section with counsel of its own choosing, at Customer’s expense. In such an event, Efficium shall (i) give Customer sole control of the defense and settlement of the Claim, (ii) provide to Customer all available information, and (iii) not compromise or settle such claim without Customer’s prior written consent.  

2. Customer Indemnification. Customer shall indemnify, defend and hold harmless Efficium against any third party claims and/or fines that are based on: (i) Customer’s use of the Services to the extent in violation of any applicable federal, state and local law or regulation; (ii) Customer’s breach of an applicable data protection law; or (iii) Customer’s data and any other information or material uploaded or used together with the Services.  Efficium shall reasonably cooperate in the defense of such claim, if requested by Customer, where Customer will reimburse Efficium’s reasonable out-of-pocket costs incurred in connection with such cooperation.  Customer shall, if decided by Efficium, have the sole authority to defend or settle the claim, provided such settlement does not involve any payment by Efficium or admission of wrongdoing by Efficium. 

3. Indemnification Procedures.  Each party’s obligations under this Section shall arise only if:  (a) the party seeking to be indemnified (“Indemnified Party”) promptly notifies the other party (the “Indemnifying Party”) in writing of any such Claim, provided that any delay shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that it was prejudiced by the delay; (b) the Indemnifying Party has sole control of the defense and settlement of such Claim, provided that the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s prior written consent; and (c) the Indemnified Party fully cooperates with the Indemnifying Party.    

4. Limitation. No party shall have any right to indemnification, reimbursement, nor other remedy based upon the breach of any provision in this Agreement if the non-breaching Party had knowledge of such breach as of the Effective Date. 

1. Term and Termination. 

1. Term.  The term of the agreement is as defined in the Order Form(s) and / or SOW(s).  

2. Early Termination. This Agreement is not subject to early termination.  The Agreement shall terminate upon the conclusion of the Initial Term or, if subsequent renewal or extension terms are agreed, at the conclusion of the then current term.  Should Customer wish to terminate prior to the conclusion of the then current term, the full contracted amount shall be due and payable in accordance with the Payment Terms as outlined in section 5 herein. Such notification must be sent to all parties listed as referenced in section 10.9 (Notices).  Support emails or support calls do not classify as notification under this Section 9.2.    

3. Duties Upon Termination.  Upon the expiration of this Agreement for any reason, (a) Customer shall (i) immediately cease using any Efficium platform, hardware, or software and return, remove or delete any Efficium Software in its possession, (ii) promptly pay any fees or other amounts due as of such termination immediately after the date of invoice to Customer for such amounts, (iii) immediately return any and all Efficium Confidential Information, (iv) obligated to take over ownership and all liability of all internet contracts that service Customer sites, and (v) ship or deliver all Efficium hardware back to Efficium’s address in Section 10.10 in appropriate shipping containers and with appropriate insurance coverage within ten (10) business days, and (b) Efficium shall (i) immediately return any and all Customer Confidential Information, (ii) promptly return Customer’s data on a customer provided hard drive, such data will include file share, SQL database, and an archive of email mailboxes, (iii) provide Customer access information and passwords such that Customer will have full and complete access to all Customer information, software, and hardware, and (iv) provide a transfer code and existing DNS entries for any domain registered by Efficium. In addition, Efficium shall cooperate and work with Customer, and as reasonably directed by Customer, to transition technology support services to Customer’s new provider. 

4. Survival. The following provisions will survive any termination of this Agreement:  Sections 1 (Definitions), 2 (Confidential Information), 4 (Ownership), 5 (Fees and Billing), 6 (Representations and Warranties), 7 (Limitations of Liability), 8 (Indemnification), 9 (Term and Termination), and 10 (Miscellaneous).  

1. Miscellaneous.  

1. 10.1.Covenant of Cooperation and Good Faith; Best Efforts. The Parties agree, warrant, and represent to each other that they will cooperate and act in good faith with each other under this Agreement, and that they will make commercially reasonable efforts to resolve disagreements and disputes prior to initiating any action or proceeding in court or other applicable tribunal. Further, the Parties shall use their respective best efforts to fulfill all of the conditions set forth in this Agreement over which that Party has control or influence and to perform the transactions contemplated herein. 

2. 10.2.Force Majeure.  Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.  

3. 10.3.Marketing.  Following written approval by Customer, Company may refer to Customer by trade name and trademark, and may briefly describe Customer’s business, in Company’ marketing materials and web site. Upon approval, Customer hereby grants Company a license to use any Customer trade names and trademarks solely in connection with the rights granted to Company pursuant to this Section. 

4. 10.4.Non-Solicitation.   Neither party shall directly solicit the personnel of the other party, or the other party’s subcontractors, who are involved in the performance of this Agreement to undertake employment with such party, such party’s parent company, any subsidiary or affiliated company of such party, or any contractor of such party, during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, provided that a general advertisement of a job opening shall not be deemed to be a solicitation for employment under this Section 10.4.   

5. 10.5.Government Regulations.  Neither party shall export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.  

6. 10.6.Governing Law; Dispute Resolution, Severability; Waiver; Venue.  This Agreement is made under and will be governed by and construed in accordance with the laws of the State of North Carolina (except that body of law controlling conflicts of law).  In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions will remain in full force and effect.  The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. The parties agree to the sole and exclusive jurisdiction of the state and federal courts located in and presiding over Mecklenburg County, North Carolina. 

7. 10.7.Mediation. If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be resolved through direct negotiations, the Parties agree to endeavor first to settle the dispute by mediation. Any Party may initiate mediation by serving written notice upon the other Parties setting forth the nature of the controversy or dispute at any time and requesting mediation. The Parties shall attempt in good faith to agree upon a single mediator. If the Parties are unable to do so, then each Party shall select a mediator and the mediators so selected shall jointly agree upon a third mediator who shall attempt resolution of the dispute. Mediation shall be held no later than twenty (20) days after the written notice initiating the mediation unless the schedule of the chosen mediator(s) causes the mediation to occur following the deadline. Any resolution from the mediation shall be documented and performed within ten (10) days following the mediation. Each Party shall be responsible for their own costs during the mediation, except that the mediator(s)’s fees and costs shall be split evenly between the Parties. 

8. 10.8.Assignment.  Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, except that each party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Any attempted assignment or delegation without such consent will be void.  This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.  

9. 10.9.Notices.  Any notice or communication required or permitted to be given hereunder shall be in writing and deemed received as follows: (a) when personally delivered; (b) one business day after being deposited with a nationally recognized delivery service (e.g., Federal Express, UPS, etc.) for overnight delivery (postage prepaid); or (c) one business day after being sent via email. Notices and communications will be delivered to the contacts at the corresponding address or email address as stated in the Order Form(s) and / or SOW(s). 

10. 10.10.Usage of Data.  Company or its suppliers may (i) use uploaded data from installed licensed Software to improve products and services; (ii) share data that has been identified as malicious or unwanted content with affiliates and security partners; and (iii) use and disclose uploaded data for analysis or reporting purposes only if any such use, sharing or disclosure does not identify Customer or include any information that can be used to identify any individual person.  

11. 10.11.General. This Agreement, including schedules, Order Form(s) and / or SOW(s), amendments, supersedes and cancels all prior and contemporaneous Agreements, written or oral, between the parties hereto with respect to the subject matter hereof and constitutes the entire understanding between the parties with respect to the subject matter hereof, and no brochure, marketing material, promise or other representation not included in this written Agreement is part of the Agreement. This Agreement may not be modified or amended except by an instrument in writing signed by the parties hereto.  

12. 10.12.Entire Agreement.  This Agreement, including all Order Form(s) and / or Service Orders, exhibits and documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.