This Master Services Agreement (“Agreement”) is entered into by and between CRESCENDOAI INC., a Delaware corporation (“Crescendo”), and the customer identified in the initial SOW entered into by the Parties (“Customer”). Crescendo and Customer may each be referred to herein as a “Party” and collectively as the “Parties.”
1. Definitions
1.1. Capitalized terms herein shall have the meanings set forth in this Section 1 or Exhibit 1, unless defined elsewhere.
“Applicable Data Protection Laws” means the privacy, data protection and data security laws and regulations of any jurisdiction directly applicable to Crescendo’s Processing of Customer Personal Data under the Agreement (including, as and to the extent applicable, the CCPA and GDPR).
“Authorized User” means an employee or contractor of Customer who is authorized by Customer to access and use the Service on behalf of and solely for the benefit of Customer.
“Customer Personal Data” means any Personal Data contained within Customer Data and Processed by Crescendo in order to perform the Service.
“Customer Data” means all data and content submitted, transmitted, or uploaded into the Service by Customer, Authorized Users, or End-Users
“Documentation” means the documentation, specifications, and policies, as may be updated from time to time, that describe the functionality, features, operation, or use of the Service and that are made available by Crescendo to Customer.
“End-User” means an individual end-user who is authorized by Customer to access and use the Service or to whom the Customer makes the Service available.
“End-user Support Services” means any support services, such as messaging support, email support, and phone support, provided by Crescendo to Customer’s End-Users as expressly identified in a SOW.
“Output” means all data and content generated by one or more Third-Party Services and made available via the Service in response to prompts or other input submitted by Customer, Authorized Users, or End-Users.
“Personal Data” means “personal data,” “personal information,” “personally identifiable information” or similar term as defined in Applicable Data Protection Laws.
“Process” and inflections thereof means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Professional Services” means any professional services related to Customer’s use of the Service, such as configuration, implementation, or training services, provided by Crescendo to Customer as expressly identified in a SOW.
“Service” means, collectively, as identified in a SOW, Crescendo’s provision of: (a) its software-as-a-service platform to Customer; and (b) End-User Support Services. Any references to the “Service” in this Agreement includes the Documentation but excludes Third-Party Services.
“SOW” means each statement of work entered into and executed by each of the Parties that references this Master Services Agreement. Each SOW forms a part of, and is incorporated into, this Master Services Agreement. “Third-Party Services” means any third-party provided applications, software, products, or services which Crescendo embeds in, incorporates into, or otherwise leverages in connection with its provision of, the Service. 1
“Third-Party Service Provider” means the applicable third-party provider of a Third-Party Service.
2. Crescendo Responsibilities
2.1. Provision of the Service.
Subject to the terms and conditions of this Agreement and during the Term, Crescendo will: (a) make the Service available to Customer for use by (i) Authorized Users solely for the internal business operations of Customer and (ii) End-Users via Customer’s website and mobile application as described in the applicable SOW; (b) provide Customer with Crescendo’s standard support services and Documentation to assist Customer in its use of the Service; (c) if purchased by Customer in a SOW, provide to Customer the Professional Services described in such SOW; (d) provide the End-User Support Services in accordance with the applicable SOW; and (e) use commercially reasonable efforts to make the Service available during the times set forth on the SOW, except for planned downtime which, to the extent exceeding fifteen (15) continuous minutes, Crescendo gives at least 48 hours’ advance notice to Customer via the Service.
2.2. Updates and Upgrades.
The terms of this Agreement will also apply to updates and upgrades of the Service subsequently provided by Crescendo. Crescendo may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion as part of its ongoing mission to improve the Service.
2.3. Compliance with Laws.
Crescendo will comply with all laws applicable to Crescendo’s provisioning of the Service to its customers generally (i.e., without regard to the specific nature of the Customer Data or Customer’s or any End-User’s particular use of the Service).
2.4. Customer Personal Data.
If and to the extent Applicable Data Protection Laws govern Crescendo’s Processing of Customer Personal Data in performance of the Service as a ‘processor’, ‘service provider’ or similar role defined under Applicable Data Protection Laws, the Parties agree to the terms of Crescendo’s data processing addendum (“DPA”), attached hereto as Exhibit 1, which shall be deemed part of and incorporated within the Agreement.
3. Access to and Use of the Service
3.1. Service Accounts.
Customer must identify a primary Authorized User who will be responsible for Customer’s master administrator account and for creating Authorized User accounts for the Service. Authorized User accounts may not be shared or used by more than one Authorized User. As between the Parties, Customer is responsible for (i) maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under Authorized User accounts, (ii) securing the systems and devices Customer and Authorized Users use to access the Service, and (iii) backing up Customer Data.
3.2. Customer Responsibilities.
Customer will: (a) provide all required notices and obtain any licenses, permissions, and consents required, including (without limitation) under Applicable Data Protection Laws, from all End-Users, Authorized Users and others, for the collection of Customer Data, including (without limitation) any Customer Personal Data, under this Agreement and to enable Crescendo’s access to, and Crescendo’s use and other processing of such Customer Data in connection with the Service; (b) be responsible for Authorized Users’ and End-Users’ compliance with this Agreement; (c) be responsible for the accuracy, completeness, appropriateness, and legality of Customer Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and promptly notify Crescendo of any such unauthorized access or use; and (e) use the Service in accordance and compliance with all applicable laws and government regulations.
3.3. End-User Terms.
Prior to each End-User’s initial access of the Service, Customer shall ensure that such End-User agrees to and is bound by an agreement (either an online click-to-accept style agreement allowing for tracking of acceptance or a written agreement) with Customer that is at least as protective of Crescendo as this Agreement and allows Customer to comply with its obligations under this Agreement (“End-User Terms”).
3.4. Usage Restrictions
Customer may not, and shall ensure that Authorized Users and End-Users do not, directly or indirectly: (a) make the Service or Output available to, or use the Service for the benefit of, anyone other than Customer, its Authorized Users, and the End-Users; (b) upload, post, transmit, email, convey, or otherwise make available to Crescendo or the Service any content that (i) is unlawful or tortious or (ii) that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Service or Output; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (f) access the Service to build a competitive product or service.; or (g) provide or otherwise make available to Crescendo or the Service any Customer Data that contains any (i) Social Security numbers or other government-issued identification numbers; (ii) protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA) or other information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; (iii) health insurance information; (iv) biometric information; (v) passwords to any online accounts not relevant for use of the Service; (vi) credentials to any financial accounts; (vii) Personal Data of children under 16 years of age; or (viii) data relating to criminal convictions and offenses (together, “Restricted Data”).
3.5. Customer Enabled Third-Party Provided Products, Services, and Data.
If Customer elects to enable or use any third-party provided products, services, or data for use with the Service: (a) any use by Customer, its Authorized Users, or End-Users of such products, services, or data is solely the responsibility of Customer and is subject to the agreements and terms with the applicable providers thereof; (b) Crescendo does not guarantee, warrant, or offer support for any such products, services, or data; (c) Customer acknowledges that the providers of such products, services, and data may have access to Customer Data in connection with the interoperation of such products, services, or data with the Service, and Crescendo will not be responsible for any use, disclosure, modification or deletion of such Customer Data.
3.6. Third-Party Services.
The Service may include certain features, including chatbot functionality, that leverage Third-Party Services that utilize artificial intelligence technology (“AI Features”). Customer agrees, and shall cause End-Users to agree in the End-User Terms, that such party is solely responsible for its use of AI Features. Customer accepts that, as AI Features utilize artificial intelligence technology, such features may provide Output that is inaccurate or inappropriate as a response to the prompts or input provided. Customer agrees, and shall cause its End-Users to agree in the End-User Terms, that Crescendo shall have no responsibility or liability arising from the provision of inaccurate or inappropriate Output or any decisions made in reliance on such Output, and that such decisions are made at its own risk. Customer acknowledges and agrees that the use of Third-Party Services, including the transmission of certain Customer Data to such Third-Party Services, is an integral and necessary part of Crescendo’s delivery of the Service. Accordingly, Customer agrees, and shall cause its End-Users to agree in the End-User Terms, that Crescendo shall have no responsibility or liability arising from any use, storage, data breach, or deletion of such Customer Data by Third-Party Service Providers. Crescendo cannot guarantee the continued availability of Third-Party Services and may temporarily or permanently cease providing, without entitling Customer to refund, credit, or compensation, any particular Third-Party Services if the applicable Third-Party Service Provider suspends, modifies, or alters such Third-Party Services.
4. Fees
4.1. Fees, Invoicing, and Payment.
Customer will pay all fees specified in the SOWs. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. All fees will be invoiced by Crescendo in accordance with the terms set forth in the SOW. Full payment for invoices issued must be received within thirty (30) days from Customer’s receipt of the invoice. If any fees owed by Customer (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date, Crescendo reserves the right to apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection.
4.2. Taxes.
The fees are excusive of, and Customer will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Crescendo’s net income).
5. Proprietary Rights
5.1. Crescendo Property
Subject to the limited rights expressly granted to Customer hereunder, Crescendo reserves and retains, and as between Crescendo and Customer, Crescendo exclusively owns, all rights, title, and interest in and to the Service and the Output, including, in each case, all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Crescendo hereunder other than as expressly set forth herein. If Customer, any Authorized User, or any End-User provides Crescendo any feedback or suggestions regarding the Service, then Customer grants or, as applicable, shall cause such End-User to grant Crescendo an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to such party. Unless otherwise expressly set forth in a SOW, Crescendo retains exclusive ownership of all work product created by Crescendo in connection with its performance of End-User Support Services or Professional Services.
5.2. Customer Data
As between Customer and Crescendo, Customer owns all rights, title, and interest in and to the Customer Data. Customer hereby grants, and shall cause all End-Users to grant, to Crescendo a worldwide, irrevocable, non-exclusive, fully paid, royalty-free, transferable, and perpetual right and license, with rights to sublicense through multiple tiers of sublicensees, to access, use, copy, create derivative works from, distribute, perform, and display Customer Data for all lawful purposes, including to provide, maintain, train, and improve the Service, other Crescendo offerings, and Third-Party Services. Customer further grants Crescendo the right to create and/or derive from Customer Data deidentified, anonymized and/or aggregated data (“Anonymized Data”) that does not identify Customer or any End-User and, both during and after the Term, to use, publicize, or share with third parties such Anonymized Data to improve Crescendo’s products and services, including for training purposes, and for its other legitimate business purposes. Anonymized Data shall be considered Crescendo’s data.
6. Confidentiality
6.1. Definition
“Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. Confidential Information of Crescendo includes the Service (including its software and content), the Output, and the work product created from its performance of any Professional Services or End-User Support Services. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party. For purposes of this Agreement, Confidential Information shall not include Customer Personal Data, which is addressed separately in the DPA.
6.2. Protection
The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
6.3. Compelled Disclosure.
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the access or disclosure.
7. Representations, Warranties, and Disclaimers
7.1. Mutual Representations
Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party
7.2. Crescendo Warranties.
Crescendo warrants that: (a) the Service will perform materially in accordance with the applicable Documentation; (b) Crescendo will not materially decrease the functionality of the Service; and (c) Crescendo will perform the End-User Support Services and the Professional Services in a professional manner. If Crescendo breaches any of the foregoing warranties in this Section, Customer’s exclusive remedy and Crescendo’s entire liability will be the correction of the breach, or if Crescendo cannot substantially correct the breach within a commercially reasonable amount of time, Customer may terminate this Agreement and Crescendo will refund to Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination.
7.3. Customer Warranty
Customer warrants that: (a) it has obtained and will maintain all rights, consents, and permissions necessary for Customer and the Authorized Users and End-Users to make available to Crescendo, and for Crescendo to use as contemplated herein, all Customer Data; and (b) the Customer Data will not infringe, misappropriate, or otherwise violate any intellectual property, privacy, publicity, or other proprietary rights of any person, or violate any applicable laws or government regulations.
7.4. Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 7.2, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND CRESCENDO EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CRESCENDO DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL MEET CUSTOMER’S OR ANY END-USER’S REQUIREMENTS.
8. Indemnification
8.1. Crescendo Indemnification
Crescendo will defend Customer from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Crescendo will indemnify Customer for any damages and any reasonable attorneys’ fees finally awarded against it arising from such lawsuit or proceeding; provided, however, that Crescendo will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data, any Third-Party Services, or any other third-party provided products, services, or data; (b) Customer’s, any of its Authorized Users’, or any End-Users’ negligence, misconduct, or breach of this Agreement or any End-User Terms; or (c) any modification or combination of the Service that is not performed by Crescendo.
8.2. Customer Indemnification
Customer will defend Crescendo from and against any lawsuit or proceeding brought by a third party to the extent alleging that: (a) any Customer Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party; ) Customer has breached any of its obligations under Section 3; or (c) Customer’s or any Authorized User’s or End-User’s particular use of the Service or use or provision of any Customer Data violates any applicable laws or government regulations. Customer will indemnify Crescendo and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Customer will have no liability under this Section to the extent any such lawsuit or proceeding arises from Crescendo’s negligence, misconduct, or breach of this Agreement.
8.3. Procedures
The indemnified Party will provide the indemnifying Party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified Party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying Party’s defense of such matter. The indemnifying Party may not settle any such lawsuit or proceeding without the indemnified Party’s prior written consent.
9. Limitation of Liability
9.1. Exclusion of Certain Damages.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Liability Cap.
EXCEPT FOR CUSTOMER’S LIABILITY FOR ITS PAYMENT OBLIGATIONS UNDER SECTION 4 OR A PARTY’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, ITS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR ITS WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO CRESCENDO HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE.
9.3. Scope.
For the avoidance of doubt, the exclusions and limitations set forth in Section 9.1 and Section 9.2 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The Parties agree that the exclusions and limitations set forth in Section 9.1 and Section 9.2 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.
10. Term, Termination, and Suspension
10.1. Term of the Agreement.
The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will continue until the last SOW expires or is earlier terminated in accordance with this Agreement (the “Term”).
10.2. Suspension.
Crescendo may suspend Customer’s or any or all Authorized Users’ access to the Service, in
whole in part, if: (a) Customer or any Authorized User is using the Service in violation of this Agreement
or any applicable law; (b) Customer’s or any Authorized Users’ systems or accounts have been
compromised or unlawfully accessed; (c) suspension of the Service is necessary, in Crescendo’s reasonable
discretion, to protect the security of the Service or the infrastructure of Crescendo or its Affiliates; (d)
suspension is required by applicable law; or (e) any fees owed by Customer (excluding amounts disputed
in reasonable and good faith) are thirty (30) days or more overdue.
10.3. Termination for Cause
Either Party may terminate this Agreement, effective thirty (30) days’ after written notice, if the other Party materially breaches this Agreement and such breach is not cured within such thirty (30)-day period. Upon any such termination for cause by Customer, Crescendo will promptly refund Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination. Upon any such termination for cause by Crescendo, Customer will promptly pay Crescendo any unpaid fees covering the period remaining in the Term after the effective date of such termination.
10.4. Effects of Termination.
In no event will any termination of this Agreement relieve Customer of its obligation to pay any fees payable to Crescendo for the period of time prior to the effective date of such termination. Upon any termination of this Agreement, Customer and all Authorized Users and End-Users must immediately cease all use of the Service and Output. Subject to the terms of this Agreement, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
10.5. Survival
The sections titled “Usage Restrictions,” “Customer Enabled Third-Party Provided Products, Services, and Data,” “Third-Party Services,” “Fees,” “Proprietary Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Termination for Cause,” “Effects of Termination,” “Survival,” and “General Provisions” will survive any termination of this Agreement.
11. General Provisions
11.1. Attribution.
Customer agrees that Crescendo may use Customer’s name and logo to indicate that Customer is a customer of Crescendo for the Service on Crescendo’s website, marketing materials, and in communications with existing or prospective Crescendo customers. Any such attribution will be consistent with Customer’s style guidelines or requirements as communicated to Crescendo by Customer.
11.2. Force Majeure.
Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action.
11.3. Assignment.
Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety, without the consent of the other Party, in connection with a merger or sale of all or substantially all of its assets. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
11.4. Governing Law; Venue.
This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in New Castle County, Delaware, will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. 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.
11.5. Notices.
All notices under this Agreement will be in writing addressed to the Parties at the addresses set forth on the latest SOW and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.
11.6. Relationship of the Parties; Third Party Beneficiaries.
The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third party beneficiaries to this Agreement.
11.7. Waiver.
No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
11.8. Severability. I
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
11.9. Entire Agreement.
This Agreement, including all SOWs, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter herein. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the Parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any SOW, the terms of the body of this Agreement will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other Customer order documentation (excluding SOWs) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.”
Annex 1 – Data Processing Details