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MASTER SERVICES AGREEMENT

 

The Master Services Agreement (“Agreement”) is made and entered into as of the initial signed date and between [the customer] a company incorporated under the laws of Cayman Islands, (“Customer”) and CABLE & WIRELESS (Cayman) a company incorporated under the laws of Cayman Islands with registered office at One Technology Square (“C&W”). Customer and C&W shall be collectively referred to herein as the “Parties” and individually as a “Party.”

 

1. Purchase of Services.  Customer hereby agrees to purchase certain telecommunications and/or information technology services (the “Services”) as described in a Schedule and its corresponding Service Order(s) to this Agreement, and C&W and the C&W Companies (each a party hereto) agree to provide to Customer such Services, upon the terms and conditions set forth in this Agreement and the applicable Schedule(s) and Service Order(s). Customer acknowledges that any dates for the delivery and/or provision of the Services in Schedule(s) and Service Order(s) are estimates only. Furthermore, C&W shall be entitled to change the specifications for the Services including where necessary for operational reasons (provided that such changes do not materially affect the performance of the Services or corresponding Service Level Agreements (“SLAs”)).

 

2. Acceptance and Service Commencement. Customer shall have seventy-two (72) hours after C&W’s delivery of the Services to object to availability, functionality or quality of the Services in accordance with the terms of the applicable SLA. Notwithstanding the foregoing, invoicing of the Services shall commence on the date C&W delivers the Services (“Effective Date”), provided that if Customer notifies C&W that there is a fault within seventy-two (72) hours after C&W’s delivery of the Services, the Effective Date shall be the date on which the fault is rectified and C&W notifies the Customer.

 

3. Equipment and Network.

3.1. C&W’s Equipment. If applicable, C&W may require access to Customer's Premises Equipment (“CPE”) to install and maintain the Services. Customer shall allow C&W, or its underlying service provider, reasonable access to the premises and use of equipment, space, and electricity at no charge, as necessary, to provide the Services. C&W may remove, replace or alter the CPE and any C&W Equipment used to provide the Services, so long as the basic technical parameters of the Services are not altered.  Customer shall be responsible for any and all repair and/or replacement costs of C&W’s equipment, facilities, fiber optic cable associated electronics and other equipment used to provide the Services (“C&W Equipment”) incurred as a result of faulty or damaged CPE or any negligent or malicious act caused by Customer or its personnel. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any CPE or C&W Equipment or permit others to do so, and shall not use the CPE for any purpose other than that authorized by the Agreement. C&W will maintain the CPE in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at C&W’s expense only to the extent that it is related to and/or resulting from C&W’s ordinary and proper use of the CPE. Customer is responsible for damage to, or loss of, CPE or C&W Equipment caused by its acts or omissions, and its noncompliance with this Agreement, or by fire, theft or other casualty at the service location(s), unless caused by the gross negligence or willful misconduct of C&W, with the risk of loss on the CPE and C&W Equipment passing to Customer upon installation in Customer’s facilities. Customer agrees that it shall take no action that directly or indirectly impairs C&W’s title to the CPE, or any portion thereof, or exposes C&W to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. For a reasonable amount of time following C&W’s discontinuance of Service, C&W retains the right to remove the CPE provided to the extent C&W removes such portion of the CPE it shall be responsible for returning the service location(s) to its prior condition, reasonable wear and tear excepted.  C&W shall have no obligation to install, operate, or maintain Customer’s Equipment (“CE”) or that of other third parties.  Neither C&W nor its employees, Affiliates, agents or contractors will be liable for any damage, loss, or destruction to CE, unless caused by the gross negligence or willful misconduct of C&W. CE shall at all times be compatible with the CPE installed for the relevant Service, as determined by C&W in its sole discretion.

3.2. Customer’s Network. Customer accepts and agrees that C&W’s ability to provide the Services hereunder is conditioned on notice regarding any and all changes to Customer’s servers, networks, software upgrades, hardware changes, patch upgrades, software installations and directory changes.  Accordingly, in the event Customer makes any of the foregoing changes without notifying C&W, the Services are subject to interruption and the terms of the relevant SLA shall no longer apply.  All use of the Services shall comply with C&W’s acceptable use policy (“AUP”) provided to Customer or posted on the C&W website at www.discoverflow.co. C&W and companies under its direct, indirect or common control (“Affiliates”) reserve the right to amend the AUP at any time.  Any IP address assignments and allocations from C&W and/or its Affiliates are based on the address lending policy of American Registry for Internet Numbers and applicable agencies.  It is an express condition of this Agreement and the loan of such IP addresses that such assignments and allocations shall terminate and the IP addresses be returned to C&W when this Agreement and/or the applicable Services are terminated. Additionally, Customer accepts and agrees that, upon issuance of advance written notice to Customer, C&W reserves the unilateral right to reclaim IP addresses that C&W deems, in its sole discretion, to be un-used in connection with the Services. 

3.3. Compliance and Regulation. Customer shall obtain and maintain such approvals, consents, governmental authorizations, licenses, and permits as may be required for Customer to perform its obligations hereunder and to use the Services and further agrees to comply with local, state, federal or international law.  Customer hereby represents and warrants that it has all necessary regulatory licenses and approvals to acquire and use the Services.  In addition, Customer agrees not to export, directly or indirectly, the products or equipment associated with the Services, without C&W’s advance written consent.  Notwithstanding any provision herein to the contrary, C&W may immediately, without notice, restrict or deactivate, or cause Customer to restrict or deactivate, any or all of the Services if C&W determines that (a) such actions are required by applicable law or governmental authority; (b) Customer, or any other person or entity who utilize or access the Services, interferes with, or causes a disruption, degradation or interruption of the service, systems, equipment or networks of C&W or its Affiliates and their respective customers; or (c) Customer, or any other person or entity who utilizes or accesses the Services, use the Services in an unauthorized manner, including without limitation the transmission of grey voice traffic, illegal or pornographic images, communications and content.  Customer shall bear the cost of any additional protective apparatus required to be installed to address any such interference, disruption, degradation or interruption. 


4. Responsibility For Use Of The Services. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICES, SOFTWARE AND CPE AND ACCESSES THE SAME AT ITS OWN RISK.  C&W EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY WHATSOEVER FOR THE CONTENT ACCESSIBLE OR ACTIONS TAKEN THROUGH OR BY USING THE SERVICES, INCLUDING CONTENT ON THE INTERNET, AND C&W EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH CONTENT OR ACTIONS.  C&W MAKES NO WARRANTY, WHETHER EXPRESS OR IMPLIED BY LAW,  COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, WITH RESPECT TO THE SERVICES, SOFTWARE AND CPE PROVIDED BY C&W AND/OR ITS AFFILIATES AND UNDERLYING SERVICE PROVIDERS AND EXPRESSLY DISCLAIMS ANY PROTECTIONS OF SERVICE INCLUDING BUT NOT LIMITED TO THE FOLLOWING: ERROR-FREE AVAILABILITY; SECURITY, PROTECTION AGAINST UNAUTHORIZED FRAUDULENT ACCESS BY THIRD-PARTIES TO CUSTOMER’S SYSTEMS, AND FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, DESCRIPTION OR FITNESS FOR ANY PARTICULAR PURPOSE OR FUNCTION WARRANTY OF TITLE; OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. NO ADVICE OR INFORMATION GIVEN BY C&W, ITS AFFILIATES OR ITS AND THEIR EMPLOYEES OR ITS CONTRACTORS SHALL CREATE ANY WARRANTY.  


5. Term and Termination.

5.1. Term. The term for the applicable Services ordered pursuant to a Schedule and its corresponding Service Order(s) (the “Term”) shall commence upon the delivery date of such Services and shall expire at the end of the Term.  Unless otherwise set forth in the applicable Schedule, the Services shall automatically renew on the same terms and conditions, save as to pricing, unless either Party provides written notice of termination at least thirty (30) days prior to the end of the applicable Term. Where the Agreement automatically renews, the charges shall revert to C&W’s standard charges and rates and all discounts applicable during the Term shall cease on expiration of the Term.  This Agreement shall commence upon the Effective Date and shall expire upon the expiration or termination of all Schedules and Service Orders hereto.

5.2. Customer Termination. If Customer cancels the Services prior to the end of the Term, Customer shall be liable for and shall pay 100% of all monthly recurring charges (“MRC(s)”) for each month remaining in the Term.  Customer agrees that the actual damages in the event of such cancellation would be difficult or impossible to ascertain, and that this termination charge is intended, therefore, to constitute liquidated damages representing a genuine pre-estimate of such loss or damage and is not intended as a penalty.


6. Payment and Taxes. 

6.1. Billing and Payment. Customer is responsible for the payment of all accounts for Services in Customer’s name and bills for all charges will be rendered to Customer.  All bills rendered to the Customer must be paid in full on or before the date shown on the bill All payments shall be made by the Customer within thirty (30) days of the date of the relevant invoice in the manner and currency specified in the applicable Schedule or Service Order or by transfer to such bank account as C&W may from time to time notify in writing to the Customer. Customer will not be relieved from making a prompt payment to C&W where Customer has not received a bill showing the amount owed on Customer’s account. Customer should call C&W immediately to obtain the current balance if Customer has not received Customer’s monthly bill.  Where Services are suspended or disconnected for non-payment, Customer is still liable for all charges during suspension or disconnection (including charges incurred prior to or as a result of suspension or disconnection) unless C&W otherwise decides.  Services will not be disconnected for non-payment of a disputed charge unless C&W has reasonable grounds for believing that the purpose of the dispute is to evade or delay payment. C&W reserves the right to change the billing period upon notifying Customer in writing thirty (30) days before any changes take effect.  C&W reserves the right to change the payment terms for any good reason, including but not limited to where Customer does not pay its bills on time, or in full or if any payment method used by Customer is dishonoured. C&W will notify Customer thirty (30) days before any changes take effect. If Customer does not agree to the changes to the payment terms Customer may terminate the Services by giving C&W notice in writing within twenty (20) days of the date of C&W’s notice. If Customer continues to use the Services or if Customer pays any amount billed to Customer’s account after C&W has given notice under this Clause Customer shall be deemed to have accepted the changes to the payment terms.

6.2 Late Charges and Reconnection Fees. In the event of non-payment of any invoice or failure to pay in full within such thirty day period, C&W reserves the right to charge and receive interest at a rate equal to three percent (3%) monthly on any outstanding amounts which are not the subject of a bona fide dispute, until payment is received in full, whether before or after judgment, together with all costs, reasonably incurred by C&W in securing such payment and/or obtaining such judgment, as the case may be.  In addition to the foregoing, C&W reserves the right to charge a reconnection fee where Customer’s Services have been suspended or disconnected for non-payment. 

6.3 Taxes. The prices for the Services are exclusive of applicable taxes and surcharges. All payments due under this Agreement shall be made without any deduction or withholding, unless such deduction or withholding is required by any applicable law of any relevant governmental revenue authority then in effect.  If Customer is required to deduct or withhold, it shall promptly notify C&W of the requirement, provide an official receipt or certified copy or other documentation acceptable to C&W evidencing payment, and shall pay to C&W in addition to the payment to which C&W is otherwise entitled under this Agreement, the additional amount necessary to ensure that C&W receives the full amount without such deduction or withholding. Notwithstanding anything else herein contained, the Customer agrees that it shall be responsible for the payment of all Taxes payable by it and the Customer further acknowledges that C&W may, if statutorily obligated, remit payment of such Taxes directly to the applicable taxing authority from any payment due to the Customer.  C&W shall if so required provide to the Customer receipts of such payments in the name of the Customer within such period as may be reasonable in the circumstances, of such payments being made to the applicable taxing authority.

6.4 Deposit. Upon application for the Services or at any time during the course of this Agreement Customer may be required to pay a deposit as set out in the applicable Service Order. This deposit may be applied to any arrears on Customer’s payments for any Services during the Term of this Agreement, or as security for any CPE, C&W Equipment or Software provided to Customer.

6.5 Credit Checks. The Customer agrees to C&W doing any necessary credit checks on the Customer and that C&W may refer or make reports to any agency or institution that is in the business of credit checks or debt collection for any untimely payment of fees or taxes.

6.6 Insurance. Customer shall maintain throughout the Term appropriate insurance coverage, consistent with industry standards, in the type and amount as would be obtained by a prudent user or owner of the Services.  Customer will provide evidence of such insurance as C&W may reasonably request from time to time.  In no event shall the limits of any such policies be considered as limiting the liability of Customer under this Agreement. 


7. Customer Default and Remedies. 

7.1 No failure to give any notice of any default shall constitute a waiver of such default or any remedy that may be available in connection therewith. In addition to the provision set forth in Section 6.2, C&W may suspend services in the event of a late payment without any further notice to Customer. This Section shall not impair the exercise of any remedy not referred to herein immediately upon default, including, without limitation, the seeking of any mandatory or prohibitive injunction or restraining order. 

7.2 The following are “Events of Default” under this Agreement: i. Absent Customer dispute of amount billed under the invoice, failure to pay in full, as and when due and payable, any amount required by this Agreement or its Schedules or Services Orders, which failure is not cured within twenty (20) days following the date of C&W’s notice of non-payment and or disconnection; ii. Customer shall fail to observe any other covenant, condition or agreement of this Agreement or its Schedules or Service Orders which failure shall continue for thirty (30) days after written notice thereof to Customer; iii. if Customer commits a material breach of this Agreement or any other agreement with C&W which is incapable of remedy; or iv. C&W is directed by a governmental authority to cease to provide the Services and C&W has given the Customer thirty (30) days’ written notice of such intent to terminate (unless such notice is not permitted by the governmental authority). 

7.3 Upon the occurrence of an Event of Default, C&W shall be entitled, without further notice, to any or all of the following remedies: i. immediately disconnect any or all Services and terminate this Agreement and all Schedules and Service Orders hereto.  All MRCs which would have been payable during the remainder of the applicable Term, shall immediately accelerate and be due and payable to C&W; ii. to take appropriate action to enforce payment; and iii. to apply all or any portion of the deposit held by C&W.

7.4 The remedies identified in this Agreement shall be cumulative and not exclusive and C&W shall be entitled to all other remedies available under law or at equity.

 

8. C&W Default, Service Outages and Remedies. 

8.1 If C&W shall fail to perform any of its material obligations under this Agreement and such failure continues un-remedied for a period of thirty (30) days after written notice of such failure is delivered to C&W, Customer may terminate this Agreement, and Customer shall not be liable for early termination fees except for unpaid charges accruing through the effective date of termination.  Customer’s right to terminate this Agreement shall be Customer’s sole and exclusive remedy for an uncured default or breach by C&W.

8.2 Notwithstanding the foregoing section or any other provision in this Agreement to the contrary, Customer’s sole and exclusive remedy arising from the performance and/or nonperformance of Services or outages of the Services shall be limited to the credits set forth in the applicable SLA, and this limitation applies to all causes of action and claims, including, but not limited to, breach of contract, negligence, strict liability, misrepresentation and any other torts.

 

9. Limitation of Liability. 

NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, C&W, CUSTOMER, AND THEIR RESPECTIVE AFFILIATES, SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER (SUCH  AS, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE, LOSS OF GOODWILL, LOSS OF SAVINGS OR INTERRUPTION OF SERVICE) REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY LOSS OR DAMAGE, PROVIDED THAT THIS LIMITATION SHALL NOT APPLY WITH RESPECT TO THE GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR FRAUD OF EITHER PARTY.  UNDER NO OCCASION MAY THE DAMAGES PAYABLE BY A PARTY EXCEED THE TOTAL PRICE PAID BY CUSTOMER FOR THE SERVICES PROVIDED BY C&W UNDER THIS AGREEMENT.

 

10. Indemnification.    Customer shall indemnify, hold harmless and defend C&W and its Affiliates, and their respective employees, officers, directors and agents from and against all claims, demands, actions, suits, proceedings, writs, judgments, orders and decrees brought, made or rendered against them or any of them and all damages, losses and expenses suffered or incurred by them or any of them (collectively, “Claims”) arising out of or related to Customer’s failure to perform an obligation under, or any breach under, this Agreement or caused by the content and data transmitted via the Services.  

 

11. Confidentiality.    

11.1 All Confidential Information shall remain the property of the furnishing party.  Unless the furnishing party otherwise expressly agrees in writing, such Confidential Information (i) shall be treated in confidence by the receiving party and used only for the purposes of performing the receiving party's obligations under this Agreement; (ii) shall not be disclosed to anyone, except to employees or contractors of the receiving party on a need-to-know basis; (iii) shall not be reproduced or copied in whole or in part, except as necessary for use as authorized in this Agreement; and (iv) shall, together with any copies thereof, be returned, destroyed or, if recorded on an erasable storage medium, erased when no longer needed or when this Agreement terminates, whichever occurs first.

11.2 The foregoing conditions do not apply to any part of the Confidential Information which (a) is or becomes known to the receiving party free of any obligation to keep same in confidence; (b) is or becomes generally available to the public without breach of this Agreement; (c) is independently developed by the receiving party; or (d) is required to be disclosed by court order or other lawful government action. 

11.3 All pricing and payments due under this Agreement are confidential and shall not be disclosed to any third party without C&W’s prior written consent.

11.4 The confidentiality obligations of each Party will survive expiration or termination of the Agreement.

 

12. Licensing of Software; Use of Third Party IP. 

12.1. Subject to Customer’s payment of applicable fees and to compliance of all the terms provided hereunder, if the Services include C&W’s software services, (“Software”) either directly or through its Affiliates and/or underlying vendors and service providers, C&W will grant to the Customer without further charge a non-exclusive, non-transferable license to use the Software and any Updates, to possess and refer to the Software documentation, instructions manual or other information in respect of the Software made available by C&W (“Software Documentation”), and to make such copies of the Software as are necessary to Use the Software.  For the purposes of this Section, “Use” shall mean the copying or transmission of the Software or (where in machine readable form) the Software Documentation for use in accordance with the instructions contained in the Software or (as the case may be) the Software Documentation and the applicable AUP. The Software will be described in the relevant Service Order. Software supplied to the Customer as set out in the Service Order, shall include any replacements, modifications, variations, enhancements or additions thereto. The licenses will be granted for a term of one (1) month and renewed automatically for subsequent one (1) month terms.  Fees for the software service will be included in the Service Order. If Customer requires a reduction to the number of licenses, Customer must notify C&W no later than sixty (60) days in advance prior to the date the change will take place. If Customer requires an increase to the number of licenses Customer shall submit a request to C&W no less than thirty (30) days advance written notice. Any confirmed and approved change shall be in writing and documented as an amended or appended Service Order. 

12.2. Customer acknowledges that the intellectual property rights of the Software are reserved exclusively by the manufacturer or vendor, reseller, or C&W and its Affiliates, as applicable. Customer further acknowledges and agrees that it is responsible for: (i) the use of third party software or other third party intellectual property installed in Customer’s systems that Customer is using on the C&W network and cloud computing platforms (“Third Party IP”) including that which Customer provides or procures access to C&W, its Affiliates and/or underlying service providers or vendors for the provision of the Services, and (ii) compliance of licenses of the Third Party IP installed in Customer’s systems including the specific authorization to use the Third Party IP in a multitenant (cloud) environment. Customer hereby represents and warrants that it has the right to use and/or the property rights of the intellectual property of the software Customer provides to C&W, its Affiliates and/or underlying service providers for the provision of the Services including the Third Party IP.  Accordingly, Customer hereby agrees to defend and hold C&W, its Affiliates and underlying service providers and vendors harmless and defend and indemnify them against any causes of action, including but not limited to intellectual property infringement claims, arising from or related to such third party intellectual property.

12.3. Customer acknowledges that C&W may from time to time request information and written confirmation and proper licensing verification of Third Party IP for C&W’s own internal audit purposes or as requested from time to time by owners and resellers of Third Party IP including verification that Customer has the specific authorization to use the Third Party IP in a multitenant cloud environment. In the event that Customer does not respond promptly to an information request related to the Third Party IP, C&W may immediately suspend any or all Services provided to Customer at its sole discretion. C&W and/or its Affiliates may monitor remotely Customer’s use of the Third Party IP on Customer’s systems operated on the C&W network and cloud computing platform, and agrees that any damages incurred by C&W shall be subject to indemnification by Customer as provided in paragraph 12.2 above. Before the activation of a Service, CWC may request a list of the Third Party IP to be used by Customer on the C&W network and cloud computing platforms and proof of payment of all license fees and costs for the Third Party IP and the existence of a valid license of the Third Party IP for the term of the Services purchased by Customer or the specific written authorization to use the Third Party IP in a multitenant cloud environment. In furtherance thereof C&W may demand a deposit from Customer for an estimated amount of such license fees as a condition to activation of the Services.

12.4. Customer agrees not to: (i) decompile, disassemble, or reverse engineer the Software; (ii) alter, modify or create any derivative works based on the Software; (iii) merge the Software with any other software without C&W’s express written authorization (in each instance); (iv) use, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer Software, except as expressly authorized in this section; (v) distribute, disclose or allow use of Software by any third party, without C&W’s express written authorization; (vi) remove, modify or alter any marks, logos, or any symbols on the Software. 

12.5. Customer may not create any copy of the Software, except for back-up purposes as well as all other ancillary rights implied by law or with C&W’s express written authorization. 

12.6. C&W, its Affiliates and/or underlying service providers may monitor remotely Customer’s use of the Software for the following purposes: (i) remote diagnosis and provision of support; (ii) to determine applicable fees; and (iii) to verify compliance of the terms and restrictions of Software use. Customer shall cooperate with C&W and its Affiliates in conducting such audits. 

 

13. Assignment. This Agreement shall not be assigned by Customer without the prior written consent of C&W. C&W may assign this Agreement to an Affiliate by providing notice thereof to Customer.

 

14. Force Majeure. Except for Customer’s payment obligations under this Agreement and all Schedules and Service Orders, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, strikes, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, acts of god and nature, criminal activity, embargoes, epidemics, wars, riots, insurrections, cable failures or cuts, other material failures, governmental or any regulatory agency actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond such Party’s reasonable control.  Any such events described in this Section shall be referred to as a “Force Majeure Event”.

 

15.Corrupt Gifts. 

15.1. Neither Customer nor any agent, affiliate, employee, or other person acting on its behalf will offer, promise, give, or authorize the giving of any gift or anything of value to any person (including without limitation any government official, political party, or candidate for public office), (i) as an inducement or reward for doing or forbearing to do or as a bribe, rebate, payoff, influence payment, facilitation payment, kickback, or other unlawful payment, to any government official, political party, or candidate for public office in order to obtain or retain business, gain any unfair advantage, or influence any act or decision of a government official, (ii) on account of favourable action or forbearance from action or the exercise of influence in relation to the obtaining or execution of this or any other Agreement with C&W. 

15.2. Customer shall establish appropriate safeguards to protect against such prohibited actions.

15.3. Any breach of this clause by Customer or by anyone employed by it or acting on its behalf (whether with or without the knowledge of Customer) shall entitle C&W to terminate this Agreement and/or recover from Customer the amount or value of any such gift, consideration or commission.

 

16. Miscellaneous. All terms and provisions of this Agreement, which by their nature should survive the termination of this Agreement, shall so survive.  The terms and benefits of this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any person or entity that is not a party to this Agreement.  Nothing contained in this Agreement shall be construed as conferring by implication, estoppels or otherwise any license or right under any patent, trade name, copyright or other intellectual property of C&W, its Affiliates and/or underlying service providers or vendors, or Customer.  If any of the provisions of this Agreement is or becomes illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way.  Unless otherwise defined in a Schedule, all capitalized terms used in a Schedule shall have the meanings as set forth in this Master Service Agreement.

 

17. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested postage prepaid, in each case to the address of the receiving party indicated below, or at such other address as may hereafter be furnished in writing by either Party hereto to the other. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent by facsimile or overnight courier, whichever is earlier.

 

18.Governing Law and Jurisdiction. This Agreement is made in and governed by the laws of Country].  In relation to any legal action or proceedings (a) arising out of or in connection with this Agreement or its implementation or effect or (b) relating to any non-contractual obligations arising out of or in connection with this Agreement, each of the Parties irrevocably submits to the exclusive jurisdiction of              Insert Country         courts and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.

 

19.Entire Agreement.  This Agreement constitutes a legally binding instrument and the entire Agreement between Customer and C&W. All amendments to this Agreement shall be in writing and signed by authorized representatives of the Parties. This Agreement may be executed in two or more counterparts, which together shall constitute a single agreement. This Agreement and any documents relating to it may be executed and transmitted to any other Party by facsimile or email (with confirm of receipt), which document shall be deemed to be, and utilized in all respects as, an original, manually executed document and shall be binding on the Parties. If any provision of this Agreement should conflict with the terms of a Schedule or Service Order, this Agreement shall control in all respects. 

 

20. Dispute Resolution.
20.1. Any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies) shall be referred to representatives of the Parties from the first level of management who have authority to settle any dispute who shall, within seven (7) working days of receipt of a written notice from either Party to the other, meet in an effort to resolve the dispute.  If the dispute is not resolved at that level within fifteen (15) days of that meeting, the dispute shall be referred to a second level of management who must meet within fifteen (15) days (or such other period as may be agreed) of the referral to attempt to resolve the dispute.  In such circumstances, the Parties shall promptly prepare and exchange memoranda stating the issues in dispute, their respective positions and a summary of the negotiations which have taken place and attaching all relevant documents.  Until concluded with a written legally binding agreement, all negotiations connected with any dispute shall be conducted in confidence and without prejudice to the rights of the Parties in any future proceedings.

20.2. This Section 20 shall not operate to restrict either Party from: (i) initiating any proceedings in respect of a matter where such Party has reasonable cause to do so to avoid damage to its business or to protect or present any right of action it may have; or (ii) applying for or obtaining emergency or interlocutory relief.

20.3. Without prejudice to either Party’s right to seek redress in court, the Parties shall continue to perform their respective obligations under this Agreement notwithstanding any disputed matter or the implementation of the procedures set out in Section 20.

 

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