Master Services Agreement
This Master Services Agreement (“MSA”) with MOVE Guides Limited (company number 07185976) or MOVE Guides US, Inc. sets forth the terms governing MG provision of services and the relevant MG Portal(s) (the “MG Portal”) provided. By signing a Work Order (“WO”), you (“Customer”) confirm that you have read and accept this MSA. Unless specified otherwise in this MSA, the term “Customer” shall refer to Customer and its Authorized Users (as defined in Section 11 below).
Notwithstanding any different or additional terms, you may reference or provide, MG’s offer or acceptance (as applicable) to enter into an agreement with you with respect to MG applications and services is expressly limited to this MSA and conditioned on your asset thereto.
1.1 The details of the Services to be provided by MG in accordance with this MSA shall be as set out and agreed by the Customer in a document or set of documents which shall be known as work orders ("Work Orders").
1.2 No Services will be provided to the Customer unless and until a Work Order has been executed by both MG and Customer. Once agreed and executed by both parties, the Work Order will be treated as forming part of this MSA. If there is a conflict between the terms in a Work Order and this MSA, then to the extent of the conflict the terms of the relevant Work Order shall take precedence.
1.3 MG will provide all resources and equipment necessary for provision of the Services, unless otherwise specified in a Work Order.
1.4 As a condition to MG’s obligations under this MSA, Customer will at all times: (a) provide MG with good faith cooperation and access to such information, facilities, and equipment as may be reasonably required by MG in order to provide the Services, and (b) carry out in a timely manner Customer’s responsibilities set forth in this MSA including any Work Order. Customer will also make available to Company any Customer data, information and any other materials required by Company to perform the Services, including, but not limited to, any Customer logos, content, processes, policies specifically identified a Work Order (collectively, “Customer Materials”). Customer will be responsible for ensuring that all such Customer Materials are accurate and complete.
1.5 Customer may submit to MG written requests to change the scope of Services described in a WORK ORDER (each such request, a “Change Order Request”). MG may, at its discretion, consider such Change Order Requests, but MG has no obligation to do so. If MG elects to consider such a Change Order Request, then MG will promptly notify Customer if it believes that the Change Order Request require an adjustment to the fees or to the schedule for the performance of the Services. In such event, the parties will negotiate in good faith a reasonable and equitable adjustment to the fees and/or schedule, as applicable. MG will continue to perform Services pursuant to the existing Work Order and will have no obligation to perform any Change Order Request unless and until the parties have agreed in writing to such an equitable adjustment.
2. Payment of Fees:
2.1 MG Fees.
(a) All fees payable to MG by the Customer will be as specified in the relevant Work Order (“MG Fees”) and shall be payable within the time periods set out in the relevant Work Order.
(b) Unless otherwise stated in the applicable Work Order, MG will invoice initial first year fees upon execution of the Work Order and these fees shall be due within 30 days of Customer’s receipt of a correct and undisputed invoice. Subsequent annual fees shall be invoiced 30 days prior to the start of the following annual period and shall be payable within 30 days of receipt of the invoice. Cancellation fee of 25% of the chargeable fee applies if Customer cancels authorization after 48 hours from authorization.
(c) For the avoidance of doubt, in the event that an Affiliate of Customer is receiving the Services under a Work Order, MG will invoice such Affiliate directly and the Affiliate will be liable for any MG Fees due to MG under this MSA and the same terms and conditions of this Section 2 will apply without modification. As used herein “Affiliate” means, with respect to any party, any entity that is controlled by or is under common control with a party.
(d) Except as set forth under Section 2.2, all fees payable to MG under this MSA are net amounts and are payable in full, without deduction for taxes or duties of any kind and the Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this MSA or Customer’s receipt or use of the Services, except for taxes based on MG’s net income. In the event that MG is required to collect any tax for which Customer is responsible, Customer will pay such tax directly to MG. If Customer pays any withholding taxes that are required to be paid under applicable law, Customer will furnish MG with written documentation of all such tax payments, including receipts.
(e) If the Customer fails to pay any undisputed MG Fees, Program Spend or other fees payable in accordance with this MSA or any Work Order by the date on which they are due, MG will charge a late fee of (i) 2% on all unpaid amounts which are between 1 and 14 days overdue and (ii) 4% on all unpaid amounts which are more than 14 days overdue.
2.2 Program Spend Related Fees. Without limiting the terms of Section 2.1, in the event that a Work Order does not contain the additional fee amounts and payment terms for costs incurred as a result of an employee’s relocation (the “Program Spend”), the terms and conditions of this Section 2.2 will apply.
(a) Direct Bill Terms:
(i) MG and the Customer will agree to direct bill terms, whereby all Program Spend is paid by MG as it is incurred and the Customer shall reimburse MG for the incurred Program Spend as set out in Section 2.2(iv) below ("Direct Bill Terms").
(ii) In respect of each employee relocating, Customer agrees that payment for costs incurred in respect of that employee's relocation ("Program Spend ") in accordance with the Relocation Policy (as defined in Section 10), as soon as a Program Spend has been incurred by MG.
(iii) Where an employee applies for a Program Spend which is not approved in accordance with the Relocation Policy, the prior approval of the Customer will be sought before the relevant Program Spend is incurred. In all other cases, where the Program Spend is incurred in accordance with the Relocation Policy, no further consent or agreement of the Customer will be required.
(iv) MG may fund these Direct Bill Terms by way of an invoice discounting facility provided to them by Silicon Valley Bank. The Direct Bill Terms provided to the Customer will be charged at the rate set out in the relevant Work Order related to the Program Spend, and will be invoiced to Customer on a weekly basis and be due within fifteen (15) days of the date of invoice.
3. Term of the Agreement & Term of an Order:
3.1 This MSA takes effect on the Effective Date. Unless terminated sooner in accordance with it terms, this MSA shall continue in full force and effect until terminated by either party pursuant to the terms of this MSA. Either party can terminate this MSA for convenience upon not less than 90 days’ written notice to the other party, except that this MSA shall remain in effect past such termination for the remaining term of any Work Order already in effect at the time of the notice.
3.2 The initial term of a Work Order shall start on the start date, as indicated in such Work Order, and shall end on the last day of its term as set out in the Work Order (“Initial Term”). A Work Order shall automatically renew for periods equal to the Initial Term, unless either party notifies the other in writing of its intent not to renew at least 90 days prior to the expiration of the then current Term. The Initial Term and renewal periods are collectively the “Term”.
3.3 Either party may terminate this MSA and all uncompleted Work Orders in effect with immediate effect by written notice (without prejudice to its other rights and remedies) if:
(a) the other party commits a material breach of any of its obligations under this MSA and in the case of a remediable breach, fails to remedy it within 60 days of the date of receipt of notice from the other specifying the breach and requiring it to be remedied; or
(b) the other party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor.
4. Effect of Termination:
4.1 Termination of any Work Order will not have the effect of terminating the whole MSA or any other Work Order.
4.2 Upon termination of this MSA or any Work Order for whatever reason, MG shall cease providing the Services to Customer and its Authorized Users (as defined below), access to the MG Portal will no longer be available to Customer, and all rights and licenses granted to Customer hereunder shall immediately cease without notice. Each party shall (at the other's election) return or destroy the other's Confidential Information. Customer shall pay to MG all undisputed MG Fees, and, where applicable, Program Spend incurred up until and including the month of termination of the relevant Work Order.
4.3 The rights and obligations of MG and Customer contained in Sections 2 (Payment), 4.3 (Effect of Termination), 5 (Intellectual Property), 6 (Confidential Information), 13 (Warranties), 14 (Indemnification), 15 (Limitation of Liability), 16 (Assignment), 17 (Jurisdiction), 20 (Force Majeure) and 21 (General Terms) shall survive any expiration or termination of this MSA or Work Order.
5. Intellectual Property:
5.1 Subject to Customer’s rights in the Customer Materials, Company will exclusively own all rights, title and interest in and to the MG Portal, and any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by Company or its personnel in connection with performing Services (collectively “Company Materials”), including all worldwide patent rights (including patent applications and disclosures), copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights therein. Customer will have no rights in the Company Materials except as expressly agreed to in writing by the parties. Nothing in this MSA will be deemed to restrict or limit Company’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party, provided that Company complies with its obligations under Section 6 with respect to Customer Confidential Information.
5.2 MG grants to Customer and its Authorized Users for the relevant Term a non-exclusive, non-sub-licensable, non-assignable, revocable, worldwide license to: (i) use and access the MG Portal; and (ii) use any Company Materials provided to Customer and it Authorized Users by MG, solely for Customer’s internal business purposes to the extent anticipated under this MSA and any Work Order.
5.3 Customer grants to MG a non-exclusive, non-sub-licensable, non-assignable, revocable, worldwide license, for the relevant Term, to use the Customer Materials solely as needed to perform the Services and to incorporate and make available the Customer Materials within the MG Portal, for the limited purposes of use in connection with the performance of this MSA and only in the manner it expressly specifies MG to incorporate therein.
5.4 Except to the extent expressly permitted under this MSA, Customer may not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the MG Portal (or part thereof) (as applicable) in any form or media or by any means. In addition, Customer shall not attempt to interfere with or disrupt the MG Portal or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the MG Portal). Customer shall not rent, lease, or provide access to the MG Portal on a time-share or service bureau basis, or transfer any of its rights hereunder (except as specified in Section 17).
5.5 Customer acknowledges and agrees that MG does not monitor or police communications or data transmitted through the MG Portal and that MG shall not be responsible for the content of any such communications or transmissions. Customer shall not use the Services to transmit any bulk unsolicited commercial communications.
6. Confidential Information:
6.1 “Confidential Information” means any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, methodologies, developments, technologies, ideas, concepts, techniques, trade secrets, know-how, personnel or suppliers of the disclosing party. MG's Confidential Information includes, without limitation, all information relating to the operation of the MG Portal.
6.2 The parties shall not use or disclose any Confidential Information except as strictly necessary to perform its obligations or exercise its rights under this MSA provided that this obligation shall not apply to Confidential Information which: (i) the receiving party can prove was in its possession or in the public domain at the date it was received or obtained from the disclosing party; or (ii) the receiving party lawfully or properly obtains without breach of an obligation of confidentiality; or (iii) comes into the public domain otherwise than through the default or negligence of the receiving party; (iv) was independently developed by the receiving party without reference to the Confidential Information of the disclosing party; (v) is legally required to be disclosed to a court, regulator or a body having similar authority provided that the other party is given prompt notice of the requirement of such disclosure and, at the other party’s request and expense, the receiving party uses commercially reasonable efforts to obtain a protective order or otherwise to protect the disclosure of Confidential Information; or (vi) is required to be disclosed by either party or on its behalf to its auditors (whether internal or external), financial or legal advisers, who have the right to require that it supply the relevant information, or (vii) to any financial institution who may require such Confidential Information so that MG or its Affiliates will be able to provide the Direct Bill Terms referred to in Section 2 above and who are informed of the confidential nature of such information and have agreed to treat it with a level of care and confidentiality at least as protective as described in this MSA.
6.3 The parties shall be entitled to disclose Confidential Information to such of its employees and authorized sub-contractors who have a need to receive such information for the performance of their obligations under this MSA, and each disclosing party shall ensure that its receiving employees or sub-contractors are informed of the confidential nature information and agree in writing to be bound by confidentiality provisions at least as protective as outlined in this Section 6. A receiving party shall be responsible to the disclosing party for any breach of these
7. MG Personnel:
MG will require its employees (“MG Personnel”) and sub-contractors who provide Services to comply with the applicable terms of the Agreement and all applicable SOWs and Work Orders. MG will retain full control over the manner in which all MG Personnel or sub-contractors perform Services to Customer and its employees, and shall be responsible for such performance.
8. MG Portal:
MG shall use commercially reasonable efforts to provide the MG Portal in accordance with and subject to the service level agreement set forth in Exhibit A attached hereto (the “Service Level Agreement”). MG may in its discretion update or otherwise amend the MG Portal to the extent that it is not detrimental to the Services provided. MG may also suspend the MG Portal without notice at any time if MG reasonably considers this necessary (for example for maintenance or upgrades), but will use commercially reasonable efforts to notify Customer of the same in advance. MG shall take all reasonable and industry standard precautions to prevent the existence of bugs, computer viruses and/or other malicious programs in the MG Portal.
9. Authorized HR Users:
MG shall provide access and login details to the HR section of the MG Portal (“Talent Mobility Cloud”) for certain persons designated by Customer (“Authorized Customer Users”), as requested in writing (including email) by Customer. Authorized Customer Users are responsible for maintaining the confidentiality of any password and/or username and are responsible for all activities that are carried out under them. MG will not be responsible for losses suffered by Customer where a password or username is used by someone else other than an Authorized Customer User, where such unauthorized access was due to the fault of the Customer or its employees.
10. Authorized Employee Users:
11. Authorized Users
The Authorized Employee Users and the Authorized Customer Users are collectively referred to as the Customer’s “Authorized Users.” Customer shall not allow access to or use of the Services or MG Portal by anyone other than the Authorized Users. Customer shall ensure that all Authorized Users comply with the terms and conditions of this MSA.
12. MG Vendors:
In line with a given relocation policy, Authorized Employee Users may source the provision of services from independent third party suppliers or engage with designated vendors as agreed by Customer and MG, and as facilitated by MG (“MG Vendors”). MG shall use commercially reasonable efforts to ensure that all MG Vendors comply at all times with all applicable laws in respect of the provision of relevant services and that MG Vendors deliver services in a timely and professional manner. Customer acknowledges that MG has full and exclusive control over MG Personnel, but that it does not have full and exclusive control over any MG Vendors.
13.1 Each party warrants to the other that it:
(a) has the power and authority to enter into and perform its obligations under this MSA; and
(b) shall at all times comply with all applicable laws and regulations (including applicable data protection and privacy legislation).
13.2 MG warrants to Customer that the:
(a) Services will be performed using reasonable care and skill; and
(b) the delivery of the MG Portal will meet the requirements set forth in the Service Level Agreement.
MG’s sole and exclusive remedy for any breach of the warranty set forth in this Section 13.2 will be as set forth in the Service Level Agreement.
13.3 The Customer confirms that it has taken its own tax advice in connection with the performance of the Services and the relocation of each Authorized Employee User and acknowledges and agrees that MG is not a tax adviser and the provision of the Services does not amount to MG giving the Customer any tax advice.
13.4 Customer assumes sole responsibility and liability for results obtained from the use of the MG Portal and for conclusions drawn from such use. MG shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to MG by Customer in connection with the MG Portal or any actions taken by MG at Customer’s direction. MG shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any Authorized User’s use of any third-party products, services, software or web sites that are accessed via links from within the MG Portal.
13.5 EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 13.1 AND 13.2, MG MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS MSA, THE SERVICES, THE MG PORTAL OR THE DELIVERABLES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 13.1 AND 13.2, MG DISCLAIMS ANY WARRANTY THAT THE SERVICES OR THE DELIVERABLES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. MG FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AND THE DELIVERABLES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. MG FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MG OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS MSA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
14.1 MG shall defend (or settle), indemnify and hold the Customer harmless against any suit or action brought against the Customer to the extent that it is based upon a claim by a third party that that the Company Materials infringe or misappropriate the intellectual property rights of any third party, and MG will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. MG’s obligations under this Section 14.1 are contingent upon: (a) Customer providing MG with prompt written notice of such claim; (b) Customer providing reasonable cooperation to MG, at MG’s expense, in the defense and settlement of such claim; and (c) MG having sole authority to defend or settle such claim. In the event that MG’s right to provide the Services or the Deliverables is enjoined or in MG’s reasonable opinion is likely to be enjoined, MG may obtain the right to continue providing the Services or the Deliverables, or replace or modify the Services or the Deliverables, so that they become non-infringing, or, if such remedies are not reasonably available, terminate this MSA without liability to Customer. THE FOREGOING STATES THE ENTIRE OBLIGATION OF MG AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES. MG shall have no liability under this Section 14.1 to the extent that any third-party claims described herein are based on use of the Services or the Deliverables in a manner that violates this MSA or the instructions given to Customer by MG.
14.2 Customer shall defend (or settle), indemnify and hold MG, its officers, directors and employees harmless against all liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, that MG incurs or suffers as a result of any claim by a third party that: (i) the receipt, possession and/or use of the Customer Materials in accordance with this MSA infringes or misappropriates the intellectual property rights of any third party; or (ii) Customer or any Authorized User has used the Services in a manner that violates Section 5.3 or 5.4 of this MSA. Customer’s obligations under this Section 14.2 are contingent upon: (a) MG providing Customer with prompt written notice of such claim; (b) MG providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.
15. Limitation of Liability
15.1 NOTHING IN THIS MSA SHALL LIMIT EITHER PARTY'S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR (II) FRAUD OR FRAUDULENT MISREPRESENTATION, (III) IT TO PAY ANY SUMS PROPERLY DUE AND OWING TO THE OTHER IN THE NORMAL COURSE OF PERFORMANCE OF THIS MSA OR (IV) FOR ANY OTHER LIABILITY WHICH MAY NOT LAWFULLY BE EXCLUDED OR LIMITED.
15.2 EXCEPT IN CONNECTION WITH ANY BREACH OF CLAUSE 6 AND SUBJECT TO CLAUSE 15.1 AND 15.3, EACH PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS MSA OR ITS SUBJECT MATTER AND TO ANYTHING WHICH IT HAS DONE OR NOT DONE IN CONNECTION WITH THE SAME (WHETHER FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE) SHALL BE LIMITED TO THE MG FEES PAID OR PAYABLE BY THE CUSTOMER UNDER THE WORK ORDER GIVING RISE TO ANY LIABILITY HEREUNDER WITHIN THE 12 MONTH PERIOD PRECEDING THE RELEVANT CLAIM OR BREACH.
15.3 SUBJECT TO CLAUSE 15.1, NEITHER PARTY SHALL BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY FOR: (I) ANY LOSS ARISING FROM OR IN CONNECTION WITH LOSS OR REVENUES, PROFITS, CONTRACTS OR BUSINESS OR FAILURE TO REALISE ANTICIPATED SAVINGS; OR (II) ANY LOSS OF GOODWILL OR REPUTATION; (III) ANY SPECIAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL LOSSES, SUFFERED OR INCURRED BY EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH ANY MATTER UNDER THIS MSA; OR (IV) A FORCE MAJEURE EVENT, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
Prospective customers often request information about MG’s existing customers. MG does not publicize any information about its customers in a way that would compromise Customer’s Confidential Information or best interests. By signing this MSA, Customer grants MG the right to use Customer’s name and logo for the limited purpose of identification as a customer. Subject to Customer’s prior approval, MG may issue a press release and case study about Customer’s selection and use of the Services.
Other than to its affiliates or to a purchaser of the majority of a party’s assets or voting securities or as may be required in connection with the receivables purchase facility provided to MG by Silicon Valley Bank, neither party will assign any part of this Agreement without the other party’s written consent
Under MOVE Guides Limited, all matters related to the Work Order (s) shall be governed by and construed in accordance with the laws of England and Wales and each of the parties irrevocably submits for all purposes in connection with this agreement to the non-exclusive jurisdiction of the courts of England and Wales.
Under MOVE Guides US, Inc., all matters arising out of or relating to the Work Order(s) shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this MSA shall be brought exclusively in the state or federal courts located in the Northern District of California in San Francisco County. MG and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
During the Term, MG shall, at its own expense, maintain at least the following types and amounts of insurance and ensure that any of its respective suppliers and sub-contractors do likewise:
(a) Commercial General Liability Insurance of GBP 10,000,000;
(b) Worker’s Compensation of GBP 1,000,000;
(c) Products Liability of GBP 5,000,0000; and
(d) Professional Indemnity of GBP 2,000,000
Upon the written request of Customer, MG shall provide Customer with copies of the certificates of insurance for all insurance coverage required by this Section 19, and shall not knowingly do anything to invalidate such insurance. Section 19 shall not be construed in any manner as waiving, restricting or limiting the liability of either party for any obligations imposed under this Agreement (including any provisions requiring a party to indemnify, defend and hold the other harmless under this Agreement) and any proceeds owed to the Customer based on MG’s insurance policy coverage shall be outside of the limitation of liability described in Section 15.
20. Force majeure
Neither party will be liable to the other for any failure or delay in performing its obligations under this MSA or any Work Order or SOW which arises because of any circumstances which it cannot reasonably be expected to control (which shall include Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving personnel of MG or a third party), difficulties in obtaining raw materials, labor, fuel, parts or machinery or breakdown in machinery, or interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing, but shall not include shortage or lack of available funds on the part of the Customer), provided that it:
(a) notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely effects;
(b) uses reasonable efforts to mitigate the effects of the circumstances so as to minimize or avoid any adverse impact on the other; and
(c) uses reasonable efforts to resume performance as soon as reasonably practicable.
21. General Terms
21.1 Nothing in this MSA shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
21.2 This MSA, including all Work Orders and exhibits, constitutes the entire agreement between the parties pertaining to the subject matter of this MSA and supersedes all prior agreements, understandings, letters of intent, term sheets, negotiations and discussions, whether oral or written. There are no conditions, warranties, representations or other agreements between the parties in connection with the subject matter of this MSA (whether oral or written, express or implied, statutory or otherwise) except as specifically set out in this MSA. No amendment of this MSA will be effective unless made in writing and signed by the parties.
21.3 If any provision of this MSA is for any reason deemed illegal, unenforceable or invalid, all other conditions and provisions of this MSA shall nevertheless remain in full force and effect so long as the economic or legal substance of the MSA is not affected in a manner materially adverse to any party.
21.4 If a Party waives any term, provision or another party’s breach of this MSA, such waiver shall not be effective unless it is in writing. No waiver by a party of a breach of this MSA by another party shall constitute a waiver of any other or subsequent breach by such other party.
21.5 Notices provided for in this MSA will be in writing and will be delivered by hand, e-mail, facsimile, overnight mail or certified mail, or recognized overnight delivery service to the parties at the addresses specified on the introductory paragraph at the first page of this MSA, or such other addresses either party may provide in writing, and, in the case of the Customer only, with a copy to any Authorized Customer User.
21.6 Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this MSA may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
21.7 This MSA is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this MSA may enforce it.