Last Updated November 1, 2025
Authorization to Access Customer Devices. Customer hereby grants to Service Provider the right to monitor, diagnose, manipulate, communicate with, retrieve information from and otherwise access the Environment (as defined below) on a 24x7x365 basis for the purpose of enabling Service Provider to provide the Services. Customer shall be responsible for securing and maintaining, at its own cost and expense prior to the commencement of any Services and during the period during which Service Provider is providing any Services, any necessary rights of entry, licenses (including software licenses), consents, permits, approvals or other permissions necessary for Service Provider to provide the Services. Service Provider shall be relieved of its obligation to perform the Services to the extent Customer fails to obtain and/or maintain any such rights of entry, licenses, consents, permits, approvals or other permissions. The term “Environment” means, collectively, the portion of any computer network (cloud-based or otherwise), computer system, peripheral or device (virtual or physical) that Service Provider maintains, monitors or operates pursuant to an SOW.
Customer Obligations. Customer shall, at its own cost and expense:
(a) cooperate with and assist Service Provider in the performance of the Services, including promptly providing Service Provider with all information, materials, documentation and resources requested by Service Provider, and interact with Service Provider in a professional and courteous manner;
(b) remain solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer data, information and materials (“Customer Content”). Customer hereby grants to Service Provider permission to remove or restrict access to obscene, indecent or offensive content made available by a network user or over the internet, and Service Provider shall not have any liability or obligation under this Agreement, any SOW or otherwise for any action taken to restrict access to material on Customer’s network that appear to be in violation of any law, regulation or rights of a third party, including, without limitation, rights under copyright law and prohibitions on libel, slander and invasion of privacy;
(c) provide all necessary information when requesting technical support, including, without limitation, (i) the name of the end user experiencing issue, (ii) the location of the end user and computer, (iii) contact information for the end user, and (iv) a detailed description of the issue;
(d) provide Service Provider and its authorized employees, agents and representatives access to Customer’s premises during regular business hours upon reasonable notice during the term of this Agreement and after its termination to install, connect, inspect, maintain, repair, replace or disconnect or remove any equipment provided by Service Provider in connection with its performance of the Services, including, without limitation, any network management appliances (NMA), firewall appliances, backup devices, SSL VPN appliances, and continuous data protection devices, and any associated software, and to conduct an audit of such equipment; and
(e) if any Services are to performed at Customer’s place of business, then Customer shall furnish full and safe access to Customer’s facilities, network and systems as needed for Service Provider to perform the Services, including, without limitation, adequate parking, internet access, work space, heating and air conditioning, light, ventilation and electricity and security passwords. Customer acknowledges and agrees that Service Provider may request a unique administrative password for the purpose of providing ongoing maintenance and support of Customer’s network and systems, and Customer acknowledges that, in approving a unique administrative password for use by Service Provider and its employees, Service Provider shall not have any liability or obligation under this Agreement, any SOW or otherwisearising out of or relating to that decision, unless due to Service Provider’s willful misconduct or gross negligence.
3. General Terms and Conditions.
(a) Environment. The scope of each SOW and the fees charged under each SOW are generally determined by Customer’s needs and the configuration of the Environment as of the date that the SOW is signed. Therefore, to avoid a delay or negative impact on Service Provider’s performance of the Services, and to mitigate against certain potential costs involved in correcting Customer-originated issues, Customer agrees to refrain from modifying or moving the Environment, or installing software on the Environment, unless expressly authorizedby Service Provider.
(b) Requirements. At all times, all software in the Environment must be genuine and licensed, and Customer agrees to provide Service Provider with proof of such licensing upon request. If Service Provider describes minimum hardware or software requirements in an SOW (“Minimum Requirements”), then Customer shall implement and maintain those Minimum Requirements as a condition to Service Provider’s obligation to provide the Services.
(c) Updates. Patches and updates to hardware and software (collectively, “Updates”) are created and distributed by third parties, such as equipment or software manufacturers, and may be supplied to Service Provider from time to time for installation into the Environment. If required under an SOW, Service Provider will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) Service Provider does not warrant or guarantee that any Update will perform properly, (ii) Service Provider will not have any liability or obligation under this Agreement, any SOW or otherwise for any downtime or losses arising from or related to the installation, use or inability to use any Update, and (iii) Service Provider reserves the right, but shall not be obligated, to refrain from installing an Update until Service Provider has determined, in its reasonable discretion, that the Update will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware.
(d) Third Party Support. If, in Service Provider’s discretion, a hardware or software issue requires vendor or OEM support, then Service Provider may contact the vendor or OEM (as applicable) on Customer’s behalf and pass through to Customer all fees and costs associated with that process.
(e) Advice; Instructions. From time to time, Service Provider may provide Customer with specific advice and directions related to the Services (“Advice”). For example, Advice may include a recommendation to increase server or hard drive capacity or replace obsolete equipment. Customer is strongly advised to promptly follow all Advice, including Advice that, depending on the situation, may require Customer to make additional purchases or investments in the Environment at its sole cost. Service Provider will not have any liability or obligation under this Agreement, any SOW or otherwise for any problems or issues (such as downtime or security-related issues) caused by any failure by Customer to promptly follow any Advice. If, in Service Provider’s discretion, any failure by Customer to follow any Advice renders all or any part of the Services economically or technically unreasonable to provide, then Service Provider may terminate the applicable SOW by providing notice thereof to Customer. Unless specifically and expressly stated in an SOW, any services required to remediate issues caused by a failure by Customer to follow any Advice, or by Customer’s unauthorized modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum Requirements, are out-of-scope and not covered under any SOW.
(f) Prioritization. All Services will be performed on a schedule, and in a prioritized manner, as Service Provider determines reasonable and necessary.
(g) Authorized Contacts. Service Provider will be entitled to rely on any directions or consent provided by personnel or representatives of Customer who are authorized to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable SOW, then the Authorized Contacts will be the person(s) (i) who signed this Agreement, (ii) who signed the applicable SOW, and/or (iii) who are generally designated by Customer during the course of Service Provider’s relationship with Customer to provide Service Provider with direction or guidance. If Service Provider is unsure whether a person is an Authorized Contact, then Service Provider may delay the performance of the Services until Service Provider can confirm the person’s authority within Customer’s organization. If Customer desires to change an Authorized Contact(s), it shall provide notice thereof to Service Provider.
(h) Hours of Service. Unless otherwise expressly set forth in an SOW, Service Provider shall provide the Services between 8:00 a.m. and 5:00 p.m. ET, Monday through Friday, excluding public holidays. Any Services provided outside of such hours will be billed to Customer as an additional service as agreed to by Customer and Service Provider.
(i) Safe Working Conditions. Service Provider shall not be required to provide the Services or otherwise engage in any activity under conditions that pose or may pose a safety or health concern, or that would require extraordinary or non-industry standard efforts to achieve.
4. Third Party Services. Customer acknowledges and agrees that portions of the Services may be acquired from, or rely upon the services of, third party manufacturers or providers, such as dark web monitoring, security awareness training, network monitoring services, data hosting services, domain registration services and data backup/recovery services (collectively, “Third Party Services”). Not all Third Party Services may be expressly identified as such in an SOW, and at all times Service Provider reserves the right to utilize the services of any third party provider or to change third party providers in its sole discretion as long as the change does not materially diminish the Services to be provided under an SOW. Service Provider shall have no liability under this Agreement, any SOW or otherwise for any failure of any third-party provider to provide Third Party Services to Service Provider or to Customer.
5. Exclusions. Service Provider shall not be required to provide any services except the Services expressly set forth in an SOW. Without limiting the foregoing, Service Provider shall not have any obligation to provide any of the following services, and any work performed related to the following services will be billed at Service Provider’s then standard rates:
(a) Any repair, maintenance or other service(s) required as a result of any installation, repair, maintenance or modification of any Managed Devices (as defined below) or related software or peripherals by anyone other than Service Provider. The term “Managed Device” means the server, workstation, local area networking equipment, wide area networking equipment and other IT components with respect to which Service Provider provides the Services under any SOW.
(b) Any repair, maintenance or other service(s) on any Managed Device(s) that cannot be properly serviced due to end of life conditions, other withdrawal or termination of warranty or support by the manufacturer, unavailability of documentation or parts, or that exhibitexcessive damage.
(c) Provision of supplies or accessories for any Managed Device(s) or electrical work external to Managed Device(s).
(d) Maintenance of accessories, alterations, attachments, upgrades or other devices; or services related to any relocation of any Managed Device(s) unless specifically set forth in an SOW.
(e) The cost of any parts, equipment or shipping charges of any kind.
(f) Third-party software license fees, renewal fees or upgrade fees of any kind (except in connection with software provided by Service Provider in support of the Services).
(g) The cost of any third-party vendor or manufacturer support or incident fees of any kind.
(h) Programming (modification of software code) and program (software) maintenance.
(i) Training services of any kind unless otherwise agreed in writing by Service Provider.
(j) Moving hardware from one physical address to another physical address.
(k) The cost of any printer maintenance other than maintenance support of the network connection of network enabled, shared printers/copiers, and the printer connection and printer drivers of locally attached printers.
(l) All costs to monitor, maintain or repair any peripheral attached to a workstation / laptop, including, without limitation, USB hard drives, scanners, docking devices, cameras and VoIP phones, except to the extent expressly identified in an SOW.
6. Customer Hardware. Service Provider does not provide hardware warranty or maintenance services, and does not maintain an inventory of spare parts or replacement hardware. Customer shall be solely responsible for entering into appropriate warranty / replacementarrangements with hardware vendors. Service Provider will use reasonable efforts to coordinate with hardware warranty / maintenance providers in the repair and replacement of defective hardware. Service Provider reserves the right to utilize the services of manufacturer’srepresentatives for repairs guaranteed by those manufacturers under separate service contracts. Service Provider shall have no obligation with respect to components that are identified by its manufacturer as a consumable or expendable item, including, without limitation, printer cartridges, fuser assemblies, batteries, print heads, magnetic media, paper supplies and similar items, all of which shall be Customer’s sole responsibility.
7. Service Provider Equipment.
(a) Customer agrees that Service Provider may, in support of the Services, deliver certain equipment to Customer, including, without limitation, network management appliances (NMA), firewall appliances, backup devices, SSL VPN appliances and continuous data protection devices (collectively, the “Equipment”) and install the Equipment on Customer’s premises. The Equipment is and at all times shall remain the sole and exclusive property of Service Provider, and Customer agrees that it will not become the owner of any Equipment by virtue of the payments provided for in this Agreement or any SOW.
(b) Customer agrees to provide Service Provider and its authorized agents access to Customer’s premises during regular business hours and upon reasonable notice during the term of this Agreement and after its termination to install, connect, inspect, maintain, repair, replace or disconnect or remove the Equipment, to install associated software and to conduct an audit of the Equipment.
(c) Service Provider shall have the right to upgrade, modify and enhance the Equipment and associated software from time to time through "downloads" from Service Provider’s network or otherwise. In addition, Service Provider may install third party software to assist in the process of managing and maintaining the Environment. Customer agrees to abide by the licenses of the respective software publishers. Copies of any licenses applicable to any such third party software will be provided upon request.
(d) Customer will not, nor will Customer allow others to, open, alter, misuse, tamper with or remove any Equipment as and where installed by Service Provider or use it contrary to this Agreement. Customer will not, nor will Customer allow others to, remove any markings or labels from any Equipment indicating Service Provider’s ownership thereof or serial or identity numbers. Customer will reasonably safeguard the Equipment from loss or damage of any kind, including accidents, breakage or fire, and will not permit anyone other than an authorized representative of Service Provider to perform any work on the Equipment. Nothing in this Agreement shall prevent Service Provider from enforcing any rights it has with respect to theft or unauthorized tampering of any Equipment under applicable law.
(e) Customer shall purchase and maintain, at its sole cost, insurance for the full replacement value of all Equipment. Service Provider must be listed as an additional insured on any such policy, and such policy will not be canceled or modified during the term of the applicable SOW without prior notification to Service Provider. Upon Service Provider’s request, Customer shall provide proof of insurance to Service Provider, including proof of payment of any applicable premiums or other amounts due under such policy.
(f) Customer agrees to pay to Service Provider the full replacement cost of any Equipment, without any deduction for depreciation, wear and tear or physical condition of such Equipment, if (i) Customer tampers with, or permits others to tamper with, any Equipment, (ii) the Equipment is destroyed, lost or stolen, whether or not due to circumstances beyond Customer’s reasonable control, or (iii) the Equipment is damaged (excluding equipment malfunction through no fault of Customer) while in Customer’s possession, whether or not due to circumstances beyond Customer’s reasonable control. Customer agrees to return any damaged Equipment to Service Provider. Notwithstanding the above, Customer shall not be required to pay any amounts to Service Provider under this Section 7(f) if the damage or destruction of the applicable Equipment arises out of the acts or omissions of Service Provider or its agents, employees or subcontractors.
(g) Upon any termination of this Agreement, Customer shall promptly return to Service Provider, at Customer’s sole cost and expense, all Equipment than in Customer’s possession in the same condition as when received (excepting ordinary wear and tear). If Customer does not so return any such Equipment, then Service Provider may, but shall not be obligated to, (i) retrieve any associated Equipment not returned by Customer as required in this Section 7 and (ii) charge Customer a continuing monthly fee until all such Equipment is returned. Customer agrees to pay any expense incurred by Service Provider in connection with any retrieval of any unreturned Equipment. For the avoidance of doubt, Service Provider will not be deemed to have "abandoned" any Equipment if it does not retrieve such Equipment, and Service Provider shall be entitled to seek injunctive relief to enforce its rights with respect to the Equipment.
8. Customer Equipment. If Customer requests or requires additions to or modifications of existing equipment or an existing network, either Local Area or Wide Area, then Service Provider reserves the right to inspect such equipment or network prior to performing any work thereon. If Service Provider determines that such equipment or network does not meet minimum standards of performance or practices, then Service Provider shall inform Customer of any equipment or network deficiencies identified by Service Provider. Service Provider may make recommendations in writing necessary to bring such equipment or network up to the minimum standards of performance or practices. In no event shall Service Provider shall be responsible or have any liability to Customer arising out of any such network or equipment deficiencies, including for any changes to performance or time frames resulting therefrom.
9. Fees; Payments; Taxes.
(a) Customer shall pay to Service Provider all fees and other amounts set forth in the applicable SOW. Service Provider will deliver to Customer invoices for any one-time set up fees payable under any SOW on or shortly after the effective date of such SOW. Invoices for any recurring monthly Services fee will be delivered approximately thirty (30) days in advance of the first date on which Service Provider will perform the Services. Service Provider may, in its sole discretion, require that a portion or all of the invoices for hardware and software purchases be paid in advance of Service Provider’s ordering of such hardware or software.
(b) Customer shall pay all amounts set forth on any invoice provided by Service Provider to Customer under this Agreement or under any SOW within 30 days after the date set forth on the applicable invoice. In no event will any amounts payable with respect to anyServices be reduced, pro rated or otherwise subject to set-off by Customer. If any undisputed amounts are not received from Customer by the applicable due date, then such charges will accrue interest at the rate of the lesser of (i) 1.5% of the outstanding balance per month, or (ii) the maximum rate permitted by law, from the date such payment was due until the date that Service Provider receives such payment. If any undisputed payments are not received from Customer by the applicable due date, then, in addition to any other remedies available to Service Provider under this Agreement or under applicable law, Service Provider may suspend any further delivery or performance of the Services under this Agreement or any SOW until all past due payments are received from Customer.
(c) All prices charged for Services shall be stated, and payments therefor shall be made, in United States dollars and are exclusive of any applicable sales, use or similar taxes. Although Service Provider makes every effort to determine whether the Services will be taxable to Customer, if the Services are taxable, then Customer shall pay all federal, state, local and other taxes based on this Agreement, any SOW, the Services or their use, excluding taxes based on Service Provider’s assets or income. If Customer claims tax-exempt status for any purpose in connection with this Agreement or any SOW, then Customer shall provide Service Provider upon request with a correct copy of Customer’s tax-exempt certification.
10. Expense Reimbursement. Customer shall reimburse Service Provider for all reasonable out-of-pocket expenses incurred by Service Provider in connection with its performance of the Services, including, without limitation, travel, lodging, meals and shipping expenses.
11. Intellectual Property Rights. As between Customer and Service Provider, subject to any licenses or use rights granted to Customer under this Agreement or any SOW, all Intellectual Property Rights in the Services are and will remain solely and exclusively the property of Service Provider. As used in this Agreement, the term “Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all patents, copyrights, trademarks, trade secret rights, inventions, and any and all similar or equivalent rights throughout the world.
12. Confidentiality.
As used in this Agreement, the term “Confidential Information” means any and all confidential, non-public and proprietary information of a party hereto, including, without limitation, (a) the terms and conditions set forth in this Agreement and any SOW, (b) technical, business, financial and marketing information, including without limitation, trade secrets, patents, patent applications, copyrights, know-how, processes, ideas, inventions, formulas, software, firmware, algorithms, technology, materials, names and expertise of employees and consultants, any other technical, business, financial, customer and product development plans, supplier information, forecasts, strategies and other confidential information, and (c) all reports, analyses, compilations, studies, or other documents prepared by either party or its Representatives that contain or otherwise reflect any Confidential Information of the other party. The term “Representatives” of a party means any and all officers, directors, employees, consultants, contractors, agents, attorneys, accountants, financial advisors, and other representatives of such party. Confidential Information does not include information that (i) is or becomes generally available to the public without breach of this Agreement by the receiving party, (ii) the receiving party can demonstrate was rightfully in its possession prior to first receiving such information from the disclosing party, (iii) the receiving party can demonstrate was developed by it independently and without use of or reference to the disclosing party’s Confidential Information, or (iv) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation to the disclosing party.
Except to the extent necessary in order to perform its obligations under this Agreement and subject to the terms of this Agreement, each party agrees that it (a) shall hold in strict confidence all Confidential Information of the other party, (b) shall use the Confidential Information of the other party solely to perform the Services or to exercise its rights under this Agreement or any SOW, and (c) shall not transfer, display, convey or otherwise disclose or make available all or any part of the Confidential Information of the other party to any person or entity other than to its Representatives who need to know such Confidential Information and who are under confidentiality obligations at least as restrictive as the terms in this Agreement. The receiving party is solely responsible for the handling and treatment of the Confidential Information of the disclosing party by the Representatives of the receiving party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but under no circumstances less than reasonable care.
The parties agree that the Confidential Information of the other party is and will remain the property of such other party. The receiving party obtains no right, title, interest, or license in or to any of the Confidential Information of the disclosing party, except for the rights set forth inthis Agreement.
Customer shall encrypt at the application level all of its Confidential Information, including all data and information about Customer’s business(es), customers, employees, operations, facilities, products, markets, assets or finances that Service Provider obtains, creates, generates, collects, views, accesses, or processes in connection with its performance of Services and that is stored in any Customer network), and all data that is considered sensitive or that must be treated as confidential under applicable law or under Customer’s contractual obligations to any third party, including Social Security Numbers, financial account numbers, driver’s license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated thereunder) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated thereunder).
13. Non-Solicitation. Customer agrees not to, directly or indirectly, solicit, hire or retain, or cause to be solicited, hired or retained as an employee or independent contractor, any employee or contractor of Service Provider, or any individual who was an employee or contractor of Service Provider within twelve (12) months prior to the first contact with such individual regarding potential employment or engagement) in a technical or sales position at any time during the term of this Agreement and for a period of one (1) year following termination of this Agreement. If Customer hires, engages or otherwise retains any employee of Service Provider in violation of this Section 12, then shall pay to Service Provider a fee equal to the greater of (i) such employee’s most recent annual salary and bonus and (ii) the salary and bonus offered to such employee by Customer. Customer agrees that this fee is fair and not excessive.
14. General Warranty. Service Provider shall perform the Services in a professional and workmanlike manner and otherwise on and subject to the terms and conditions set forth in this Agreement and in any SOW. If Service Provider fails to perform the Services in a professional and workmanlike manner or otherwise in compliance with the terms and conditions set forth in this Agreement and in any SOW, then Customer must provide written notice thereof to Service Provider within five (5) days after the performance of the applicable Services, which notice shall describe in reasonable detail the nature of the alleged failure. In any event, Customer’s sole and exclusive remedy for any failure by Service Provider to perform the Services in a professional and workmanlike manner or otherwise in compliance with the terms and conditions set forth in this Agreement and in any SOW shall be for Service Provider to re-perform the applicable Services. If re-performance of such Services is not possible, then, notwithstanding the immediately preceding sentence, Service Provider shall refund to Customer the total fees paid by Customer in respect of the applicable Services. If any Services contain a deliverable, then such Services will be deemed accepted by Client if not rejected in a reasonably detailed writing within five (5) days after submission to Customer.
15. Security Acknowledgment. Customer acknowledges and agrees that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are purposely or intentionally downloaded or installed into the Environment. Service Provider does not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined or removed, or that any data deleted, corrupted or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in an SOW, the recovery of Impacted Data is not included in the scope of any SOW. Customer shall (a) educate its employees to properly identify and react to “phishing” activity (e.g., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), (b) use reasonable security precautions in connection with its use of the Services, including maintaining up-to-date virus scanning and operating system security patches and firewall protection, (c) require each user to use reasonable security precautions, including maintaining up-to-date virus scanning and operating system security patches and firewall protections, (d) not take any action or install any software that may preclude or impair Service Provider’s ability to access or administer the Environment or provide the Services and (e) obtain and maintain cyber insurance covering, at a minimum, cyberattacks, the theft or misuse of private or confidential information or other data loss, malware-related matters, privacy-related breaches, the breach of networked and managed security systems, and any failure to prevent the transmission of computer malware (“Insurable Events”). Customer acknowledges and agrees that Insurance Events can occur even under a “best practice” scenario. Service Provider shall have no liability under this Agreement, any SOW or otherwise for any costs, expenses or damages incurred by Customer and arising from or related to any Insurable Event. In addition, Customer agrees that Service Provider will not be responsible for, and Customer will not seek indemnity from Service Provider or its insurers for, any Insurable Events.
16. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 13, THE SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS. IN ADDITION, EXCEPT AS EXPRESSLY SET FORTH IN IN SECTION 13, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, ANY DELIVERABLES RELATED THERETO OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF THE USE THEREOF, AND SERVICE PROVIDER SPECIFICALLY DISCLAIMS AND EXCLUDES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
17. Limitation of Liability.
THE CUMULATIVE, AGGREGATE LIABILITY OF SERVICE PROVIDER UNDER THIS AGREEMENT AND ANY SOW, INCLUDING FOR ALL CLAIMS RELATED TO THIS AGREEMENT, ANY SOW AND THE PROVISION OF THE SERVICES HEREUNDER AND THEREUNDER, WILL NOT IN ANY EVENT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE SOW DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
IN NO EVENT WILL SERVICE PROVIDER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES.
18. Conflicts; Order of Precedence. The terms and conditions set forth in this Agreement shall apply to all SOWs, even if they do not specifically reference this Agreement. In the event of a conflict between this Agreement and any SOW, the terms set forth in this Agreement shall control.
19. Miscellaneous.
(a) Independent Contractors. The parties are independent contractors and neither party (i) is an agent, servant, legal representative, partner, joint venturer or employee of the other, and (ii) has any authority (A) to assume or create any obligation or liability of any kind on behalf of the other, (B) to make any representation or warranty on behalf of the other party, or (C) to bind the other party in any respect.
(b) Publicity. Subject to all trademark and logo usage guidelines as may be provided by Customer to Service Provider, Customer hereby grants Service Provider the right to use the name, logo and other identifying marks and descriptions of Customer in Service Provider’s general marketing activities, including in any sales and marketing materials, customer lists and on Service Provider’s website.
(c) Assignment. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any attempt to assign or transfer this Agreement or delegate any obligations hereunder other than in accordance with this section will be null and void. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(d) Governing Law; Venue. THIS AGREEMENT (AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES WITH RESPECT TO THEIR RELATIONSHIP UNDER THIS AGREEMENT) IS GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH SERVICE PROVIDER HAS ITS PRIMARY PLACE OF BUSINESS, EXCLUDING ITS CONFLICTS OF LAWS RULES TO THE EXTENT THAT SUCH RULES WOULD APPLY THE LAW OF ANOTHER JURISDICTION.
(e) Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
(f) Force Majeure. If by reason of labor disputes, strikes, lockouts, riots, war, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, epidemic or pandemic, governmental restrictions or other causes beyond the reasonable control of a party hereto (each, a “Force Majeure Event”), either party is unable to perform in whole or in part its obligations as set forth in this Agreement, excluding any obligations to make payments hereunder or under and SOW, then such party will be relieved of those obligations to the extent such inability is the result of any Force Majeure Event, subject to the remainder of this section. Promptly after becoming aware of any event or circumstance that will result in the delay of a party’s performance under this Agreement, such party shall notify the other party of the delay and its anticipated duration, and such party shall take commercially reasonable actions to resume performance as soon as reasonably possible. Neither party will be liable for any losses, injury, delay or damage suffered or incurred by the other party due to a Force Majeure Event.
(g) Entire Agreement. This Agreement, together with any SOWs, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior and contemporaneous understandings and agreements, written or oral, regarding such subject matter.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which is deemed an original for all purposes and all of which together constitute one and the same instrument. The parties may execute this Agreement using electronic signatures or electronic copies and expressly agree that any such signatures represent the final and binding signature of the parties and the parties’ acceptance and acknowledgement of the terms and conditions set forth in this Agreement.