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THIS MANAGED SERVICES AGREEMENT (the "MS Agreement" or "Agreement") is made and entered into by and between Verito Inc., a Delaware corporation ("Provider"), and the customer identified in the applicable Statement of Work ("Customer").
WHEREAS, Provider provides a bundle of IT management support capacity and related services (the "MS Services") as described in a Statement of Work signed or otherwise agreed to between the parties;
WHEREAS, Customer wishes to purchase and use these MS Services outlined in the applicable Statement of Work.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, Provider and Customer agree as follows:
Provider shall provide to Customer the MS Services as described in the applicable SOW and in accordance with this MS Agreement.
2.1.1. General Services: Provide services outlined within the applicable SOW relating to the operation and maintenance of the software listed within the SOW. Provider reserves the right to change the configuration of its systems and change or delete equipment or software at any time, provided that, if the changes have a material impact on Customer, Provider will provide Customer reasonable notice for such changes.
2.1.2. Hours of Availability: Provider shall use commercially reasonable efforts to make Provider services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Provider reserves the right to suspend Customers access to any Software or remote applications or services provided herein (i) in the event that Customer fails to fulfill its obligations under this Agreement, (ii) for purposes of scheduled maintenance, or (iii) for purposes of emergency maintenance work as determined by Provider.
2.1.3. Support: Provider has support staff available twenty-four hours, seven days a week. The support staff will accept inquiries by telephone and electronic mail from those users designated by Customer to make inquiries. Provider will use its best efforts to respond to all the inquiries in a timely manner.
2.1.4. Proactive Monitoring: Provide information as requested regarding server capacity and network bandwidth, including reports Customer may request showing saturation levels, Performance benchmarks, as changed from time to time, will be reasonable and appropriate.
2.1.5. Backup: Provide information regarding back-up procedures, security, and other functions as reasonably requested by Customer and Section 5 and as otherwise described on the exhibits referenced herein.
2.1.6. Security Software: Evaluate security services applicable and help with administration of security measures including measures aimed at protecting data, maintaining compliance with vulnerability management programs, implementing and complying with strong access control measures, and as more fully described in the applicable Statement of Work.
2.1.7. Optional Support Services: Provider, in its sole discretion, may provide Optional Support Services to Customer at the Customer’s request, at Provider's standard hourly rates then in effect. The terms and conditions of this Agreement govern the provision of any Optional Support Services delivered by Provider to Customer.
2.1.8. Limitations:
2.2.1. Notification: Customer shall immediately notify Provider of any Error and provide Provider with reasonable detail of the nature and circumstances of the Error.
2.2.2. Compliance: Customer shall comply with all terms and conditions of this Agreement and any Software License Agreement.
2.2.3. Use: Customer shall use the Software solely in accordance with the terms and conditions set forth in any Software License Agreement and this MS Agreement and the corresponding SOW.
2.2.4. Environment: Customer shall set up, maintain, and operate in good repair and in accordance with the specifications of Provider all environmental conditions and components, including all networks, systems, and hardware, in or through which: (a) the Software operates; and/or (b) the Customer accesses or uses any of the Services.
2.2.5. Access: In connection with the performance of the Services, Customer shall provide Provider and its agents with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable Provider to perform its obligations (including the provision of the Services), and exercise its rights, under and in accordance with the terms and conditions of this Agreement, including:
reasonable, uninterrupted access, both physical and virtual, to the Software and Customer's premises, systems, networks, and facilities;
a safe working environment;
reasonable access to the appropriate Customer personnel, including network, systems, operations, and applications personnel; and
all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing.
2.2.6. Data Back-up: Unless it is otherwise agreed or stipulated, Customer agrees to back up all data, files, and information prior to the performance of any Services by Provider and hereby assumes sole responsibility for any lost or altered data, files, or information it had failed to backup.
2.2.7. Remote Services and License of Client Utilities Package: . To enable Customer to receive and use the MS Services, Provider grants Customer, and Customer accepts, a non-exclusive license to install, store, operate and use the object code version of the current release of the client utilities, including program routines or database features that may be provided by Provider (the "Client Utilities Package"). The Client Utilities Package is for Customer's use solely in connection with the Services. With prior written consent from Provider, Customer may assign its rights to Services under this Agreement to its affiliates with notice to Provider, provided that any such assignee, sublicensee, or successor shall, as a condition of such assignment, sharing, or sublicense, be bound by and subject to all applicable terms, conditions, and obligations of this Agreement. Customer shall remain responsible and liable for all acts and omissions of any such assignee, sublicensee, or successor related to their access to or use of the Services or their adherence to this Agreement, as if such acts or omissions were those of the Customer. Customer is responsible for installation of the Client Utilities.
Customer acknowledges and agrees that Provider utilizes Remote Services to assist Customer in analyzing and Resolve an Incident. Customer agrees to provide Provider with access to Customer's network/system/computers to install and use remote access software ("Remote Access Software") necessary for Provider to provide the remote services to Customer. The Remote Access Software may contain technological measures designed to collect and transmit to Provider certain diagnostic, technical, usage, and related information, including information about Customer's computers, systems, network, and any Third-Party Materials, relating to or derived from Customer's use of Software. Customer acknowledges and agrees that: (a) Provider may collect, maintain, process, and use this information in the course of performing the Services under this Agreement, provided that Provider shall only access, control, and gather such information that it reasonably believes to be necessary to assist in analyzing and Resolving an Incident; and (b) all or portions of the Remote Access Software may remain on Customer's network/system/computers after an Incident is Resolved.
Provider will comply with the procedures and protocols described in its security procedures with respect to the MS Services. Provider represents and warrants that its security procedures will be in substantial compliance with: (i) industry standards for businesses similar to Provider's; (ii) Customer's reasonable security procedures and requirements (including identification badges) as are promulgated by Customer from time to time, provided such rules have been provided to Provider with sufficient advance notice to reasonably permit Provider's compliance; and (iii) applicable law and industry standards.
In providing the MS Services, Provider personnel shall not attempt to access, or permit unauthorized access to, any Customer Data (as defined in the Agreement) except as required to perform its obligations under this MS Agreement. If unauthorized access occurs (or is reasonably suspected), Provider shall immediately report such incident to Customer and describe in reasonable detail the information that was accessed. In the event that Provider becomes aware of (or reasonably suspects) that any Customer data (or any information or material that can be used to access Customer data) that is stored or processed by Provider or its contractors has been compromised, each such event, an "Information Security Breach"), Provider shall promptly notify Customer in writing (which may be by email) and provide commercially reasonable assistance in providing requested information about the event. For purposes of this obligation, "compromise" should be read to include, without limitation: (i) any unauthorized access to Customer data, (ii) any inadvertent disclosure of Customer data, (iii) any known or suspected misuse of Customer data, (iv) any suspected use of Customer data by any person outside of the scope of that person's authority (even if such use does not result in harm to the individual data subject), and (v) any known or suspected loss, alteration or destruction of Customer data other than as required (or permitted) by the Services.
All data provided by Customer or its authorized users pertaining to its or their business, personnel, clients or accounts processed by or stored in Provider's systems shall be kept confidential by Provider, shall be used only to carry out this Agreement, and may not be disclosed to anyone except employees, agents, and contractors of Provider who have a "need to know" the same in order for the administration and performance of the Services. All such data shall be and remain the property of Customer or the authorized users. Provider may use such information, during and after the Term of this Agreement, for administrative, monitoring, investigative and back-up. Provider shall provide Customer with additional assurances or evidence of compliance regarding the confidentiality of such matters as Customer considers necessary or appropriate to comply with applicable laws and regulations, audit inquiries, or privacy policies Customer may adopt in the future.
Provider shall return to Customer all of Customer's information, data, and files in such form as Customer may reasonably request. Provider may charge Customer its standard rates for such services and any related expenses incurred to provide such services.
Provider represents and warrants that it has established, and agrees it will maintain throughout the Term, a disaster recovery plan and business continuity plan (the "Contingency Plan") that is designed to enable Provider to recover from a disaster or major system failure and continue providing Services to customers, including Customer, within the recovery time objectives set forth in the Contingency Plan. An executive summary or comprehensive description of the current Plans, which may change from time to time, shall be provided to Customer at its request. Provider will test the operation and effectiveness of the Contingency Plan at least annually. On each anniversary date of the Service Commencement Date, Customer shall have the right to review Consultant's then current Plans.
Provider represents and warrants that (i) the Services shall perform materially in accordance with the specifications provided to Customer, (ii) the functionality of the Services will not be materially decreased during a subscription term, and (iii) the Service will not contain or transmit to Customer any malicious code (meaning viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs).
Provider represents and warrants that it has the right to provide Customer and its affiliates with the services without violating the rights of any other person or entity and that the Services do not infringe the intellectual property rights of any other person or entity.
Customer represents and warrants that (i) Customer's access to and use of the MS Services, Software, Deliverables, and the provision of Customer Data and any other materials to Provider, will at all times comply with all applicable terms and conditions of this Agreement, any applicable SOW, all Documentation, and all applicable laws and regulations; (ii) Customer has, and will maintain all necessary rights, licenses, and consents to provide Customer Data and any other materials to Provider for the purpose of receiving the Services and for Provider to perform the Services as contemplated by this Agreement, without infringing, misappropriating, or otherwise violating any intellectual property rights or other rights of any third party; (iii) that all information, data, and materials, including Customer Data, provided by Customer or its Authorized Users to Provider are accurate, complete, and do not contain any malicious code; (iv) Customer will provide Provider with all necessary cooperation, assistance, and access to its premises, systems, networks, and personnel as reasonably requested by Provider to perform the Services hereunder; and (v) Customer will monitor and be responsible and liable for all acts and omissions of any assignee, sublicensee, or successor related to their access to or use of the MS Services and their adherence to this Agreement.
Subject to earlier termination as provided herein, the initial term of this MS Agreement shall commence on the Effective Date defined in the applicable Statement of Work and shall continue for a period described in the applicable Statement of Work (the "Initial Term"). The first payment shall be due by the date described in the applicable Statement of Work.
Unless otherwise agreed in writing, upon expiration of the Initial Term, this MS Agreement shall automatically renew for additional one (1) year terms ("Additional Terms") unless either party gives the other party written notice at least ninety (90) days prior to the expiration of the then current term of such party's intent not to renew. The Initial Term and any applicable Additional Terms are referred to hereinafter as the "Term."
The parties acknowledge that Provider shall commence performance of the MS Services on a date to be mutually agreed upon in writing by the parties, but in all events no later than the Full Service Availability Date as defined in the applicable SOW.
This MS Agreement may be terminated for cause as follows:
If Customer fails to pay Provider any amounts owed when due hereunder, Provider may, within thirty (30) days after providing Customer written notice of such failure terminate this MS Agreement.
. If either party breaches any material term or condition of this MS Agreement or the Agreement and fails either to cure such breach within thirty (30) days after receiving written notice specifying the breach, or for those breaches which cannot reasonably be cured within thirty (30) days, promptly commence curing such breach and thereafter proceed with all due diligence to cure such breach, then the party not in breach may, by giving written notice to the breaching party, terminate this MS Agreement.
In the event of the termination of this MS Agreement by Provider for breach by Customer, Provider will provide transition assistance to Customer with respect to the terminated MS Services and Customer shall pay to Provider the regular recurring MS Fees for the lesser of three (3) months or the remainder of the Initial Term or Additional Term, as applicable.
Customer will pay a service fee in the amount specified in the applicable Statement of Work to Provider in consideration for Provider's providing of MS Services set forth in the applicable Statement of Work and for the Provider Software Products within the applicable Statement of Work. Unless otherwise stated in the applicable SOW, the first Service Fee is due on the Full Service Availability Date; subsequent monthly fees are due on the first calendar day of the month in which MS Services are provided; and Monthly Service Fees, including the first payment due shall be pro-rated for any partial month.
Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, THE LICENSED SOFTWARE, THE SERVICES, AND THE DELIVERABLES ARE PROVIDED "AS IS." PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE, THE SERVICES, THE DELIVERABLES, OR ANY OTHER GOODS, SERVICES, TECHNOLOGIES, INFORMATION, OR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER'S OR OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, INFORMATION, OR MATERIALS EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS. THIS AGREEMENT DOES NOT AMEND, AUGMENT, OR OTHERWISE MODIFY THE PROVIDER'S WARRANTIES UNDER THE SOFTWARE LICENSE AGREEMENT OR ANY CONDITIONS, LIMITATIONS, OR RESTRICTIONS THEREOF.
Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses incurred by Customer resulting from any direct action by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such losses arise solely from an allegation in such action that the core MS Services provided by Provider, in the form provided by Provider, infringe any U.S. patent, copyright, or trade secret. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any: Third-Party Materials; patent issued on a patent application published in the US after the Effective Date; negligence, abuse, misapplication, or misuse of the Software or any Deliverables other than by Provider Personnel; events or circumstances outside of Provider's commercially reasonable control (including any bugs, defects, or malfunctions of any third-party software, hardware, firmware, system, or network).
Customer shall indemnify, defend, and hold harmless Provider and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, and assigns (each, including Provider, a "Provider Indemnitee") from and against any and all losses incurred by the Provider Indemnitee in connection with any Action by a third party to the extent that such Losses arise from any allegation in such Action:
that any Intellectual Property Right or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
modification of the Software or any Deliverables by Customer other than: (A) by Provider Personnel in connection with this Agreement; or (B) with Provider's express written authorization and in strict accordance with Provider's written directions and specifications;
incorporation, combination, operation, or use of the Software, Services, or any Deliverables by Customer with any good, service, technology, or other matter whatsoever (including any software, hardware, firmware, system, or network) that is neither provided by Provider Personnel nor expressly authorized by Provider in any applicable Software License Agreement, this Agreement or the SOW;
good, service, technology, or other matter whatsoever (including any software, hardware, firmware, system, or network) directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, or used with, as part of, or in connection with the Software or any Deliverables;
use of the Software or any Deliverables by Customer after Provider's notice to Customer of such activity's alleged or actual infringement, misappropriation, or other violation of a third party's rights; or
failure by Customer to timely implement any maintenance release, modification, update, or replacement of the Software or any Deliverables made available to Customer by or on behalf of Provider,
of or relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under any applicable License Agreement or this Agreement;
of or relating to negligence, abuse, misapplication, misuse, or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer or any of its Representatives with respect to the Software, the Services, the Deliverables, or otherwise in connection with this Agreement; or
of or relating to use of or other act relating to the Software, the Services, or the Deliverables by or on behalf of Customer that is: (i) outside the scope of Customer's license under the Software and any applicable License Agreement or the purpose, scope, or manner of use authorized by the Software and any applicable License Agreement, this Agreement or the Documentation; or (ii) in any manner contrary to Provider's instructions.
Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice which is reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
If the MS Services or Deliverables, or any part of thereof, are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's use of any of the Services or Deliverables is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
obtain the right for Customer to continue to use such Services and/or Deliverables, as applicable, as contemplated by this Agreement;
modify or replace such Services and/or Deliverables, as applicable, in whole or in part, to seek to make these non-infringing, while providing reasonably equivalent features and functionality, and such Services and Deliverables as so modified or replaced will constitute Services and Deliverables under this Agreement; or
by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and/or Deliverables, provided that, subject to Customer's compliance with applicable post-termination obligations.
SECTIONS 13, 14, 15, and 16 SET FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE MS SERVICES AND DELIVERABLES) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
Exclusion of Damages: IN NO EVENT WILL PROVIDER, ITS AFFILIATES, LICENSORS, PROVIDER PERSONNEL, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF USE, DATA, BUSINESS, REVENUE, PROFIT, GOODWILL, OR REPUTATION, (b) BUSINESS INTERRUPTION, INCREASED COSTS, OR DIMINUTION IN VALUE, OR (c) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CAP ON MONETARY LIABILITY: IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS AFFILIATES, PERSONNEL, AND SUBCONTRACTORS ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT PAID TO PROVIDER BY CUSTOMER IN THE TWELVE (6) MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE CUSTOMER'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
The exclusions and limitations above do not apply to obligations to indemnify or liability for gross negligence or willful misconduct.
In no event will Provider be liable or responsible to Customer or another party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable/diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
This Agreement and the related SOW, and all matters arising out of or relating to those agreements, are governed by and construed in accordance with the substantive laws of the State of Florida, without regard to its conflict of laws principles.
Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, shall be required to be brought and resolved through binding arbitration brought before the American Arbitration Association or a mutually agreed alternative. The arbitration shall take place in Orlando, Florida, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The parties irrevocably and unconditionally agree that any Action to compel arbitration, to enforce an arbitration award, or seeking injunctive or other equitable relief (if such relief is explicitly not available through arbitration) arising out of or relating to this Agreement shall be brought and litigated exclusively in the state courts located in Orange County, Florida, or the United States District Court for the Middle District of Florida (Orlando Division). The parties hereby consent to the exclusive jurisdiction and venue of such courts and waive any objection to such jurisdiction or venue based on inconvenient forum or any other ground
The parties hereby waive any right to a trial by jury or to participate in a class action.
The rights and obligations of the parties set forth in this Section 21 and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. Without limiting the generality of the foregoing, the following sections shall survive the termination or expiration of this Agreement: Section 4 (Data Ownership and Security), Section 9 (Post-Termination Rights and Obligations), Section 10 (Fees, with respect to any fees owed as of the termination date), Section 11 (Representations and Warranties), Section 12 (Disclaimer of Warranties), Section 13 (Provider Indemnification), Section 14 (Customer Indemnification), Section 15 (Indemnification Procedure), Section 17 (Limitations of Liability), Section 20 (Governing Law), Section 22 (Conflict), Section 23 (Entire Agreement), and Section 24 (Scope of Work).
In the event an inconsistency exists between this MS Agreement and any SOW, the SOW shall control for the terms which specifically relate to the scope and description of the MS Services being provided, prices, and terms. All other terms will be controlled by this Agreement in case of a conflict.
This MS Agreement, including the initial paragraph and the recitals to this MS Agreement, together with each Statement of Work, constitutes the entire understanding of the parties and supersedes any prior agreements or understandings, written or oral, between the parties with respect to the subject matter of this MS Agreement.
Each SOW will be governed by and incorporates by reference the terms of this Agreement. By executing an SOW, whether by physical or electronic signature, Customer expressly agrees to be bound by this Agreement in its entirety. This Agreement, as may be amended from time to time, can be provided upon request and will be made available at a designated URL.
