CONTINUUM TECHNOLOGIES MASTER SERVICES AGREEMENT
Continuum Technologies, Inc. (“CTI”) shall provide services (“Services”) described in any Statement of Work (“SOW”) referencing this Master Services Agreement (“MSA” or “Agreement”) which is executed by Customer and accepted by CTI. Acceptance by CTI will be evidenced by the return of a signed copy of the Statement of Work to Customer. The Statement of Work will incorporate and be subject to the terms and conditions of this Agreement. No changes to a Statement of Work shall be made except in writing and executed by authorized representatives of both parties.
This Agreement is effective as of the date of full execution of the Statement of Work (the “Effective Date”), and consists of and is subject to the general terms and conditions set forth in this MSA, Service Level Agreement(s) (“SLA”(s)) and all SOWs (as hereinafter defined) that are attached to this MSA or are subsequently entered into by the parties hereto (collectively, the “Agreement”).
a. CTI shall provide the services specified herein (“Services”) in accordance with the terms and conditions set forth in this MSA, as well as on any SOW(s) (as hereinafter defined) and/or SLAs referencing this MSA and attached hereto or executed hereafter.
b. CTI shall perform the Services specified in any written order between CTI, Counsel and Customer that is in the form of a CTI Statement of Work (“SOW”). Each SOW shall identify the Services to be provided by CTI, the recurring charges and any non-recurring charges for such Services, and the term during which such Services are to be provided.
c. The Services shall also be subject to an SLA (or, as applicable, several SLAs) that specify the metrics by which the Services are to be measured and the remedies or penalties, if any, should the agreed-upon levels of service not be achieved. Each SLA shall reference and incorporate the terms and conditions of this MSA and any applicable SOW.
d. In connection with its performance of the Services, CTI may provide to Customer certain materials, including, basic operating software necessary to operate and maintain its website(s), application, data, documentation or information developed or provided by CTI or its suppliers under this Agreement (“Host Materials”).
e. In performing the Services or otherwise fulfilling its obligations under this Agreement, CTI shall comply with all applicable laws, rules, and regulations.
2. Customer Obligations.
a. Customer shall timely make all payments due under this Agreement.
b. Customer shall be solely responsible for providing, updating, uploading and maintaining any and all applications (including software used by Customer to update, manage, or maintain such applications), files, pages, data, works, information, electronic mail, and/or materials on, within, or displayed, linked or transmitted to, from, or through its applications (or websites), the storage space for which is provided as part of the Services, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio, video, email or other messages, metatags, domain names, software and text (collectively, the “Customer Content”).
c. Customer shall use and take all reasonable security precautions to maintain the security and stability of the Customer Content, including all upgrades and security patches to web applications installed and/or running in connection with Customer’s use of the Services as defined by CTI. This also includes: (i) maintaining and updating all application software installed by Customer or by CTI at Customer’s request, and (ii) encrypting any personally identifiable information (PII) transmitted to or from, or stored on, servers or storage devices that Customer uses.
d. Customer shall comply with all laws applicable to its use of the Services.
e. Customer shall fully cooperate with CTI’s reasonable investigation of any service outages, security problems, and any suspected breach of the MSA.
3. Payment Terms.
a. Unless otherwise specified in the applicable SOW(s), CTI shall invoice Customer for any non-recurring charges following the execution of the applicable SOW. Recurring charges will be billed monthly in advance, except for charges that are dependent upon usage of Services, which are billed in arrears. The first invoice of new Services will be immediately due and payable. If the first invoice begins on any other day than the first day of the month, the invoice will be prorated based on a calendar month.
b. Except as set forth in clause a above, Customer agrees to pay proper, documented invoices within 30 days (“Net 30”) of receipt thereof (“Grace Period”). If Customer fails to pay any invoiced fees and costs prior to expiration of any Grace Period, interest compounded at the rate of two percent (2%) per month shall accrue on all amounts unpaid and outstanding until paid in full.
c. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount before the expiration of the Grace Period and submit written notice of the disputed amount, within thirty (30) days of the date of the disputed invoice (with details of the nature of the dispute and the Service(s) and invoice(s) disputed). If the dispute is resolved against Customer, Customer shall pay the disputed amount plus interest from the date originally due. All amounts not timely and appropriately disputed shall be deemed final.
d. CTI reserves the right to change the Customer’s payment terms, including requiring a deposit or another form of security, at any time when (i) Customer fails to pay any amounts owing hereunder when due, (ii) Customer makes three (3) late payments, and/or (iii) Customer has an Insolvency Event (as defined below). As used herein, “Insolvency Event” means making a general assignment for the benefit of a party’s creditors, filing a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization or similar relief or an involuntary petition in bankruptcy or other insolvency protection is filed against the applicable party.
e. The acceptance and deposit by CTI of any payment from Customer that contains reference of any type that such payment constitutes “payment in full” shall not constitute an accord and satisfaction or a waiver by CTI of any right(s) it possesses, in law or equity, to collect payment in full from Customer for any and all Services provided to Customer under the Agreement.
f. All charges for Service(s) are exclusive of applicable taxes, duties, fees, and similar charges. Customer shall be solely responsible for all taxes and fees that arise in any jurisdiction, however designated, imposed on, incident to, or based upon the provision, sale or use of the Service(s).
4. Term and Termination.
a. The term of this Agreement shall commence on the Effective Date and shall continue thereafter for twelve (12) months, unless sooner terminated by any Party in accordance with this Agreement and including any Renewal Term (as hereinafter defined) (“Term”).
b. Other than as expressly provided in the Agreement or the applicable SOW(s), no Party may terminate the Agreement or any SOW during the Term thereof.
c. This Agreement may be terminated (i) by any party for any reason upon thirty (30) days written notice to the other parties, but only if such termination would not become effective during the term of any SOW; (ii) by any party, if another party fails to perform or breaches any material term or condition of this Agreement and does not cure such breach within thirty (30) days (ten (10) days for payment of monies owed) following the receipt of a written notice from the non-breaching party specifying the nature of the breach in reasonable detail; or (iii) by any Party, if another party has had an Insolvency Event.
d. If Customer terminates any SOW prior to the end of the applicable Term thereof in violation of this Agreement, then Customer shall owe to CTI, as liquidated damages, an amount equal to one hundred percent (100%) of the monthly recurring charges due under the terminated SOW(s) for the remainder of the Term of such SOW(s). The failure to pay amounts owed under a SOW when due shall be considered a material breach of the Agreement. Notwithstanding the foregoing, Customer’s sole remedies for Service outages, failures or defects are contained in any applicable SOWs or SLAs.
e. Upon termination of this Agreement for any reason, all Parties shall cooperate in good faith with one another to effect an orderly termination of their relationship, transfer of the Customer Content to Customer (or a third party designated by Customer in writing), and shall refrain from any statements or acts which would be likely to damage the reputation of any Party or its products or services. Except as necessary to comply with its obligations pursuant to this Agreement or as otherwise agreed upon by the Parties, CTI will not retain Customer Content following expiration or termination of this Agreement.
5. CTI Warranties.
a. CTI warrants that it has full power and authority to enter into and perform this Agreement.
b. CTI warrants that it will perform its work (a) in accordance with the terms and subject to the conditions set forth in the respective Statement of Work and this Agreement; (b) using personnel of required skill, experience, and qualifications; (c) in a timely, workmanlike, and professional manner; and (d) in accordance with generally recognized industry standards in CTI’s field.
c. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY CTI, AND CTI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CUSTOMER IS SOLELY RESPONSIBLE FOR AND CTI EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES OF ANY KIND RELATING TO CUSTOMER’S SOFTWARE AND HARDWARE, INCLUDING THIRD-PARTY SOFTWARE AND/OR HARDWARE LICENSED BY CUSTOMER.
6. Customer Warranties. Customer represents and warrants that: (i) it has the power and authority to enter into and perform its obligations under this Agreement; (ii) the Customer Content does not contain any unlawful content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or is not used by Customer in accordance with this Agreement in a manner that infringes or misappropriates any U.S. proprietary or intellectual property of any person in the United States; and (iii) Customer owns or has a licensed right to use the Customer Content.
a. CTI shall use commercially reasonable efforts and industry accepted methods to ensure the reliability and security of its Services, but CTI is not responsible for unauthorized access to Customer’s data or the unauthorized use of the Services. Customer is solely responsible for the use of the Services by any employee of the Customer, any person to whom Customer has given access to the Services, and any person who gains access to Customer’s data or the Services as a result of Customer’s failure to use reasonable security precautions, even if Customer did not authorize such use. Additionally, CTI shall not be responsible for unauthorized access to Customer Content and/or unauthorized use of the Services caused by Customer’s failure to update software that has passed its End of Life Date (as hereinafter defined).
b. Unless otherwise agreed to by the parties in writing, CTI shall provide Customer security recommendations and solutions as defined in SOWs attached to this MSA; provided, however, that CTI shall provide services for only the Current Major Releases (as hereinafter defined) of any software installed by CTI and running on Customer’s servers or websites or applications and, except as otherwise provided in this Agreement, will not provide security support for software that has reached or passed its End of Life Date (as hereinafter defined).
c. For the purposes of this Agreement, the term “Current Major Releases” shall mean the major releases (or versions) of any software running on Customer’s servers or websites or applications for which the software’s manufacturer provides standard support services and security updates and generally includes the software’s latest maintenance updates and may include additional enhancements, architectural changes, security upgrades, and major feature changes, as well as new features and functionality. A “Major Release” of a software product is designated by the numbers immediately to the left and right of the decimal point (e.g., PHP 7.3). For the purposes of this Agreement, the term “End of Life Date” shall mean the last date on which a software maker will deliver standard support services and/or security updates for a given version/release of a particular product. By way of illustration of the terms defined herein, the oldest Current Major Release for PHP is 7.1, and PHP only provides support for PHP 7.1 or newer (e.g., PHP 7.2, 7.3). Accordingly, PHP 5.3, 5.2, 5.1, 5.0 have passed their respective End of Life Dates. The maker of the PHP software publishes End of Life Dates for each of PHP’s Major Release online at http://php.net/eol.php.
d. Provided that CTI has given Customer prior written authorization, Customer may install software on Customer servers that has passed its End of Life Date (“Expired Software”). Installing Expired Software on Customer servers without CTI’s prior written consent shall be a material breach of this Agreement. CTI will support Expired Software only upon receiving a written request using a CTI-provided form from Customer that (i) identifies the Expired Software, including such software’s version and intended use, (ii) requests CTI’s support of the Expired Software, and (iii) and includes a statement that Customer acknowledges and accepts sole responsibility for the security and stability risks posed by running the Expired Software. Upon receiving such a request, CTI may, in its sole discretion, choose not to support the Expired Software. CTI’s execution of this Agreement shall not constitute its written approval to install Expired Software on CTI’s servers.
8. Customer’s Proprietary Rights.
a. Customer shall retain all of its right, title and interest (including copyright and other proprietary or intellectual property rights) in the Customer Content and all legally protectable elements, derivative works, modifications and enhancements thereto.
b. Customer hereby grants to CTI a limited, revocable, non-exclusive, non-transferable right and license during the Term of this Agreement to use the Customer Content only as necessary to perform its obligations under this Agreement.
c. To the extent that ownership of the Customer Content does not automatically vest in Customer by virtue of this Agreement or otherwise, CTI agrees to transfer and assign to Customer all right, title and interest in the Customer Content and protectable elements or derivative works thereof.
9. CTI Proprietary Rights.
a. The Parties acknowledge that CTI, in performing the Services hereunder may use certain Technology (as hereinafter defined) that was created by or licensed to CTI prior to the date of this Agreement. This Agreement provides Customer with a license to use the Technology (described below) and does not transfer from CTI to Customer any ownership interest or proprietary rights in the Technology. “Technology” means CTI’s proprietary technology, including CTI’s services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, libraries, objects in documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by CTI or licensed to CTI by a third party), and also including any derivatives, improvements, enhancements or extensions of the foregoing conceived, reduced to practice or developed by CTI during the Term of, as well as prior to the term of, this Agreement, but excluding, at all times, any and all Customer Content.
b. Subject to Customer’s compliance with this Agreement, CTI grants Customer a limited, non-exclusive license to use and access the Services and the Host Materials.
c. The Host Materials shall not be construed as including the Customer Content.
d. Customer may not duplicate or distribute any of the Technology or Host Materials to any third party without the prior written consent of CTI. Customer may not reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of the Technology or Host Materials, except as allowed by law or authorized in writing by CTI.
e. Customer will have no right to receive any object code or source code relating to the Services.
10. Acceptable Use Policy. Notwithstanding anything herein to the contrary, CTI may terminate the Agreement at any time, if in CTI’s reasonable discretion Customer breaches CTI’s Acceptable Use Policy (“AUP”), as amended from time to time. The AUP is available online at https://www.cti-it.com/acceptable-use-policy. CTI may change the AUP to add restrictions on Customer’s use of the Services provided that any such new restrictions are reasonable and consistent with this Agreement. Any changes to the AUP made during the Term will become effective as to Customer upon the first to occur of: (i) renewal of the Agreement, (ii) Customer’s execution of a new/additional SOW that incorporates the revised AUP by reference, or (iii) thirty days following CTI’s notice to Customer describing the change. If a change to the AUP materially and adversely affects Customer, Customer may terminate the Agreement, without any penalty, by giving CTI written notice of termination on such grounds no later than thirty (30) days following the date the change became effective as to Customer. If Customer terminates the Agreement because a change to the AUP adversely affects Customer, CTI may decide to waive that change as to Customer and keep the Agreement in place for the remainder of the term.
11. Limitation of Liability.
a. Except for indemnity claims, and claims arising from gross negligence, willful misconduct, bodily injury or death resulting from the Services, for any and all material breaches of the signed SOW and this Agreement by CTI, Customer’s remedy and CTI’s aggregate liability will be limited to three times the fees paid for the twelve months preceding the claim. CTI will not be liable for performance delays or for nonperformance due to causes beyond its reasonable control, including when products or parts are not available.
b. To the extent CTI is otherwise held legally liable to Customer, CTI’s aggregate liability is limited to damages for bodily injury, damages to tangible property, and other direct damages for any claim based on a material breach of support services, in all cases, up to a maximum amount equal to the greater of (a) $5000 and (b) the charges paid by the Customer under this Agreement during the twelve months preceding the claim. THE REMEDIES PROVIDED IN THIS SECTION 11 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT WILL CTI, ITS AFFILIATES, ITS SUBCONTRACTORS, OR SUPPLIERS BE LIABLE FOR LOSS OF DATA OR FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DOWNTIME COST OR LOST PROFIT), WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, EVEN IF CTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. Except where a party has an indemnification obligation to Another party or where such party has acted with gross negligence or willful misconduct, in no event shall ANY party be liable to the other PARTIES for any indirect, consequential, incidental, special or punitive damages, including, without limitation, loss of use, interruption of business, or loss of profits, arising out of or in any way connected with the Agreement or the Services, even if the relevant party has been advised of the possibility of such damages.
a. Customer will indemnify CTI, and its officers, directors, members, shareholders, employees, agents, assigns and successors, and shall hold them harmless for, from and against any and all liabilities, claims, damages, actions, losses, penalties, litigation, demands, causes of action, suits, proceedings, judgments disbursements, charges, assessments, expenses, and legal costs on an indemnity basis including attorneys’ fees, court or arbitration costs, expert witness fees and litigation or arbitration related expenses (collectively, “Claims”) resulting from a third party claim, arising out of or alleged to have arisen out of, (a) the actual or alleged breach by any Customer Party of Customer’s obligations, representations or warranties under this Agreement; (b) gross negligence or willful misconduct by any of the Customer Parties; or (b) bodily injury, death or property damage caused by the negligence of any Customer Party. “Customer Parties” means Customer, its representatives, sublicensees, assignees, and any of their respective managers, officers, directors, agents, employees, invitees, transferees, and contractors.
b. CTI will indemnify and hold Customer, its affiliates, members, managers, shareholders, officers, directors, employees, agents and representatives and licensees harmless for, from and against any and all Claims by any person, entity, governmental authority or other third party arising out of or relating to: (a) the gross negligence or willful misconduct by CTI; or (b) bodily injury or death to the extent caused by the negligence of CTI.
c. The indemnified party agrees to give prompt written notice to the indemnifying party of any such claim; provided, that any delay in furnishing such notice shall not discharge the indemnifying party from its indemnification obligation hereunder, except to the extent such delay results in actual prejudice to the indemnifying party. The indemnifying party shall undertake and conduct the defense of any claim so brought. The indemnifying party shall keep the indemnified party advised of the progress of any such claim and the indemnified party shall have the right to participate in such claim at its own expense. If the indemnifying party shall fail to take timely action to defend any such claim, then the indemnified party may defend such claim at the indemnifying party’s expense. The indemnifying party shall not have the right to settle, compromise or otherwise enter into any agreement regarding the disposition of any claim without the indemnified party’s prior written consent, which may not be unreasonably withheld, except for a claim solely for monetary damages.
13. Insurance. CTI shall maintain during the term of this Agreement the following forms (or types) of insurance: (i) General Liability with a limit of Two Million United States of America Dollars ($2,000,000 USD) per occurrence and in the annual aggregate, including coverage for property damage, bodily injury, personal injury, non-owned or hired automobiles, products and completed operations hazards (with total limits that may be made up of any combination of primary and umbrella liability insurances); (ii) Errors and Omissions Liability in an amount equal to Two Million Dollars ($2,000,000 USD) for any one claim or series of related claims in the annual aggregate for each wrongful act or series of related wrongful acts, any form of defamation or disparagement; invasion of privacy, unauthorized use or misappropriation of names, and failure by Company to perform any of its responsibilities under this Agreement; and (iii) Worker’s Compensation insurance affording compensation benefits for all employees in an amount sufficient by virtue of the laws of the state or jurisdiction in which the Services or any portion of the Services is performed. Upon execution of this Agreement and at Customer’s request, CTI shall provide Customer with certificates of insurance or other evidence of insurance acceptable to Customer demonstrating that all the insurance required above is in force.
14. Confidential Information.
a. CTI acknowledges that during the course of the Agreement, it may come into contact with personally identifiable information relating to Customer’s customers or other individuals (“Confidential Information”). Therefore, CTI will maintain as confidential all information and data received from Counsel and Customer, derives therefore, or otherwise has access to pursuant to Agreement, as well as all work produced created by CTI for Agreement, and will not (to the extent legally permitted), disclose such files, information and data to any third party without Counsel’s or Customer’s prior written consent. Further, CTI shall: (i) use any confidential information it comes into contact with solely for the purpose of performing its obligations hereunder with respect to the Agreement; (ii) restrict disclosure of the confidential information to employees, affiliates, and its and their directors, officers, consultants, subcontractors and agents who are under an agreement for the protection of confidentiality and only to the extent each has a need to know; (iii) advise those persons who access the confidential information of their obligations with respect thereto; and (iv) copy the confidential information only as necessary for the persons who are entitled to receive it and ensure that all confidentiality notices are reproduced in full on such copies.
b. For all purposes under this agreement, CTI to comply with all laws, regulations, and rules applicable to CTI’s handling of Confidential Information.
c. All Parties agree not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of the Parties’ respective legal rights under the Agreement, or as may be required by law.
d. All Parties agree not to disclose the other’s Confidential Information to any third person except as follows: (i) to the Party’s respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this MSA, (ii) as required by law, or (iii) in response to a subpoena or other compulsory legal process, provided that the party provide the other with written notice at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
e. For purposes of the Agreement, “Confidential Information” means all information disclosed by any one Party to another, including (without limitation): (i) for Customer, all information transmitted to or from, or stored on, CTI servers or other devices, including (without limitation) all PII and Customer Content (ii) for CTI, unpublished prices and other terms of service, audit and security reports, data center designs (including non-graphic information you may observe on a tour of a data center), Technology, Host Materials, and other proprietary technology, and (iii) for all Parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one Party on its own, without reference to the other’s Confidential Information, or that becomes available to one Party other than through a violation of the Agreement or applicable law, shall not be “Confidential Information” of the other Party.
f. CTI shall advise Customer promptly, and to the extent commercially reasonable, within no more than five (5) business days, in the event that it learns or has reason to believe there has been unauthorized access to or acquisition or use of, or any security breach relating to or affecting, Confidential Information in CTI’s possession, custody, or control.
15. Relationship of Parties. Nothing in the Agreement will be construed to imply a joint venture, partnership or agency relationship between the parties, and CTI will be considered an independent contractor when performing Service(s) under the Agreement.
16. Assignment. Customer may not assign the Agreement without CTI’s prior written consent. CTI may transfer or assign this Agreement and its rights and obligations hereunder to any of its affiliates, parent or subsidiaries, or as part of a merger, acquisition or financing.
17. Non-Solicitation. During the Term of the Agreement and for a period of one (1) year following the termination or expiration of this Agreement, the Parties hereto agree not to hire, solicit, nor attempt to hire or solicit, the services of any employee or sub-contractor of the other Party without prior written consent. For purposes of this Agreement, an employee or subcontractor of a Party includes any existing employees or subcontractors of a Party or any employee or subcontractor of a Party who was employed or retained by the Party at any during the Term of this Agreement. Any breach of Section 18 will cause irreparable harm to CTI for which damages would not be an adequate remedy, and therefore, CTI shall be entitled to injunctive relief with respect thereto, in addition to any other remedies at law or in equity.
18. No Third-Party Beneficiaries. No provisions of the Agreement are intended to, or shall be construed to, confer upon any person, other than the parties hereto, any rights, remedies or other benefits under or by reason of the Agreement.
19. Use of Tradenames, etc. No party may use the name, trade name, logo or trademark of any other party hereto without the prior written consent of an authorized representative of the other party in each instance; provided, however, CTI may disclose the name of Customer to any of its agents or third-party vendors that have a reasonable need to know such information to assist CTI in providing any Services.
20. Notices. All notices required or permitted hereunder must be given in writing and, except for routine notices that the parties agree to send and receive electronically, shall be considered properly given if hand-delivered, mailed first class mail (postage prepaid and return receipt requested), or sent by recognized express overnight courier maintaining proof of delivery (e.g., FedEx or UPS) and shall be sent to the address of the receiving party indicated on the signature page of this Agreement or at such other address as a party may specify in writing pursuant to this Section.
21. All notices shall be deemed to have been given as of the date it is delivered, or upon which delivery is refused, whichever is earlier.
22. Governing Law; Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona (except for its conflicts of law principles). Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association, conducted in Phoenix, Arizona, and heard by impartial, knowledgeable and experienced arbitrator(s). Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Except as necessary to register a judgement as described in the preceding sentence, or otherwise required by law, neither a party nor an arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties (which may be withheld in a party’s sole discretion). The prevailing party, as determined by the arbitrator shall be entitled to an award of reasonable attorney fees. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY CLAIM OR ACTION, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO.
23. No Negative Construction. All parties acknowledge and agree that they have reviewed and have had an opportunity to have reviewed by legal counsel this Agreement and it is the parties’ intent that this Agreement not be construed against any party as the drafting party.
24. Legal Process. CTI reserves the right to comply with any and all warrants, court orders, subpoenas, summons and other legal requirements.
25. Entire Agreement. The Agreement constitutes the entire agreement between the parties relating to its subject matter and the Agreement supersedes all prior agreements and understandings between the parties, oral or written, with respect to its subject matter.
26. Modification. The Agreement may not be changed unless mutually agreed upon in writing by all parties. Any modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of all parties.
27. Waiver. The failure of the parties in any one or more instances to insist upon strict performance of any of the terms of provisions of this Agreement or to exercise any option herein conferred shall not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms or provisions or option on any future occasion.
28. Conflicts Among Documents. In case of a conflict between any of the terms and conditions in this MSA and any other terms and conditions in any SOW, the order of precedence shall be: any SOW and this MSA. For the avoidance of doubt, any purchase order, including any request submitted for estimates of certain services, sent to CTI by Customer (for Customer’s administrative purposes or otherwise) shall not be binding.
29. Force Majeure. Except for obligations for the payment of money, no party shall be liable for any failure to perform or delay in performing any obligations under this Agreement due to causes beyond its reasonable control.
30. Survival. Any term or provision of the Agreement of an ongoing nature and/or which, by their nature and context, should reasonably be expected to survive the expiration or earlier termination of the Agreement, shall so survive such expiration or termination thereof.
31. Prevailing Party. In the event of a dispute arising from or related to the Agreement, the substantially prevailing party shall be entitled to recovery of all reasonable costs incurred, including, without limitation, court costs, attorneys’ fees and other related costs and expenses.
32. Counterparts. This MSA, any SLA, and/or and SOW may be executed in counterparts which, when taken together, shall constitute one and the same document. In addition, a facsimile or photographic copy of a of a party’s signature or this Agreement shall be deemed an original thereof.
33. Severability. In the event that any of the provisions of the Agreement shall be held by a tribunal of competent jurisdiction to be invalid or unenforceable in whole or in part, those provisions to the extent enforceable and all other provisions shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included in the Agreement.
34. Headings. Headings are for ease of reference only and shall not have any effect upon the construction of the Agreement.