Master Services, Products, and License Agreement

This Master Services, Products and License Agreement (“Master Agreement“) is made as of the date of last execution below (“Effective Date”) and entered into by and between CBTS Technology Solutions UK Limited (company number 06493410), a company registered in England & Wales whose registered office is at Eversheds House 70 Great Bridgewater Street Manchester, U.K. M1 5ES (“CBTS“) and the Customer stated in the Agreement (“Customer“).

WHEREAS, CBTS and Customer wish to establish and/or continue a business relationship covering: (i) the provision of a variety of information technology/IT and telecommunications services (“Technological Services“) and related staff augmentation or other professional services (“Professional Services” and together with Technological Services, collectively “Services“), (ii) the purchase of IT or telecommunications equipment (“Products“), and/or (iii) the licensing of software (“Software“);

WHEREAS, the specific parameters and conditions of the provision of those Services, Products and Software will be set forth in separate documents attached hereto or executed from time to time pursuant hereto (the “Related Agreements“), including, without limitation, Statements of Work, Service Schedules, Hardware Quotes, and Bills of Materials, CBTS and Customer wish to set forth in this Master Agreement certain terms and provisions that will govern the CBTS-Customer relationship and the Related Agreements, and the sale or license by CBTS and the acquisition by the Customer of the Services, Products and Software.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and covenants contained herein, CBTS agrees to provide to Customer and Customer agrees to acquire from CBTS the Services and/or Products and/or Software on the terms and conditions set forth in this Master Agreement and in the applicable Related Agreement(s) (the Master Agreement and the Related Agreement together, the “Agreement”).

1. Scope of Agreement.

1.1 Each Related Agreement will include applicable prices or fees, and will specify the Services, Products, or Software to be delivered by CBTS. Customer and CBTS agree that the terms and conditions of this Master Agreement will apply to all Services, Products, or Software provided to Customer, and each executed Related Agreement will be deemed incorporated into and made part of this Master Agreement and together form the Agreement.
1.2 The terms of this Master Agreement will prevail over any contrary provision in a Related Agreement unless the Related Agreement explicitly states that it prevails over this Master Agreement.
1.3 Subsidiaries and affiliates of CBTS, (together with CBTS, the “Affiliated Legal Entities“) may transact business under this Agreement in their own names, and this Master Agreement, including all rights, benefits and obligations, shall extend and inure to the benefit of each such Affiliated Legal Entity. To the extent an Affiliated Legal Entity other than CBTS executes a Related Agreement with Customer, this Master Agreement and such Related Agreement shall be construed and interpreted with respect to the Services, Products or Software covered therein as if the Master Agreement had been executed directly between such Affiliated Legal Entity and Customer. For purposes of clarity, no Affiliated Legal Entity shall be responsible for, or assume any liability of, any other legal entity transacting business under this Agreement.

2. Term.

2.1 The term of this Agreement will commence on the Effective Date and will continue in full force and effect for the duration of each applicable Related Agreement executed hereunder, unless earlier terminated pursuant to the terms herein (“Term”). The execution of new Related Agreements following the expiration of the Term shall reinstate the terms of this Master Agreement. Following termination of a Related Agreement, this Master Agreement and any other Related Agreement(s) not terminated shall remain in full force and effect. The termination of this Master Agreement alone shall not automatically terminate the Related Agreements entered into pursuant to it and such Related Agreements shall remain in full force and effect until their own termination or expiry.
2.2 Each Related Agreement will set forth an initial term of service. Unless explicitly stated otherwise in a Related Agreement, after the initial term, the Related Agreement will automatically renew on a month-to-month basis until terminated by either party upon thirty (30) days written notice to the other party except that CBTS may adjust pricing and fees at any time and from time to time.

3. Change Request; Change Authorization.

3.1 Customer may request a change to any Service under an applicable Related Agreement (a “Contract Change Request” or “CCR“) at any time. The CCR must describe the proposed modification(s) to the Services and identify the priority of the request. By submitting a CCR, Customer authorizes CBTS to perform the required work to make the change. CBTS, however, reserves the right to review (e.g., to determine if the change is contemplated by, or within the scope of the Services covered by, an existing Related Agreement) and to approve, reject, or further negotiate the CCR. In the event that the CCR requires additional work by CBTS or affects delivery timelines, CBTS shall advise of the cost and timeline impact of the changes set out in the CCR for Customer’s approval. The parties shall mutually execute each Contract Change Request.
3.2 If Customer owes CBTS a past due undisputed amount for Services, Products and/or Software, CBTS may, in its discretion, cease to accept or process any Contract Change Requests. Alternatively, CBTS may, in its sole discretion, require pre-payment from Customer to cover the cost of performing any Contract Change Request. These rights are in addition to all other rights and remedies provided for in this Agreement or at law or in equity.

4. Purchase Orders, Acceptance, and Cancellation.

4.1 Customer may order Products, Software and/or Services from CBTS by submitting a valid purchase order generated by Customer, specifying the Products, Software and/or Services, quantities, and applicable pricing (“Purchase Order”), on the condition that when required by CBTS, Customer will also execute an applicable Related Agreement for the order. Customer warrants and represents that the Products, Software and/or Services purchased from CBTS are not for resale purposes but are purchased for Customer’s own use. If during the Term of this Agreement Customer resells any Product, Software and/or Service purchased from CBTS, CBTS may at its election immediately suspend service to Customer and terminate this Agreement and/or any Related Agreement.
4.2 CBTS will notify Customer promptly if Customer’s Purchase Order contains inaccuracies or if Products, Software or Services are unavailable, or available but at a different price. Once a Purchase Order is accepted by CBTS in writing, and, where applicable, the Related Agreement is signed, a contract for the supply of Products, Software and/or Services (as applicable) by CBTS to Customer will be formed and CBTS will process the order. For the avoidance of doubt, CBTS is under no obligation to accept a Purchase Order and all Products and Software are subject to availability at the time of order acceptance. Customer acknowledges and understands that (i) Product backorders are not uncommon for Products in high demand; (ii) manufacturers periodically discontinue Products and Software and introduce new models or versions; and (iii)CBTS has no control over the timing of any Product or Software obsolescence, discontinued availability, or price changes.
4.3 The parties agree that any terms or conditions in Customer’s Purchase Order or any other document issued by Customer which are additional to or different than the terms and conditions in this Agreement are not binding on CBTS, whether or not the additional or different terms would materially alter this Agreement and, accordingly, the terms and conditions in this Agreement are the only terms and conditions on which CBTS shall supply Products, Software and/or Services to the Customer.
4.4 Customer may cancel an order, in whole or in part, only with the written consent of CBTS. If CBTS so consents, Customer acknowledges that it will be responsible for any actual out-of-pocket expenses incurred by CBTS as a result of Customer’s cancellation (including but not limited to fees for restocking, cancelation, and shipping) which CBTS will pass through to Customer without any markup.

5. Delivery, Inspection, Acceptance and Returns.

5.1 Products will be shipped FOB Origin unless otherwise specified with standard shipping charges added to the invoice. As CBTS is not the manufacturer of Products, CBTS cannot guarantee delivery by a set date, but all Products will be delivered on a commercially reasonable basis. Customer may request expedited delivery, where available, for an additional charge. Risk of loss shall pass to Customer upon delivery to the freight carrier at origin. Legal and beneficial ownership of the Products will not pass to the Customer until CBTS has received in full in cleared funds (a) all sums due to us in respect of the Products; and (b) all other sums which are or which become due to CBTS from the Customer on any account whatsoever.
5.2 Customer shall inspect Products upon delivery and must notify CBTS of any damaged Products received within fifteen (15) days of delivery. CBTS will exchange or replace damaged Products in accordance with the CBTS Returns Policy, a copy of which is available from CBTS upon request, as such policy may from time to time be modified at the sole discretion of CBTS, and/or the then current return policy of the applicable manufacturer (collectively, the “Return Policies“). CBTS will accept return of new, unopened, non-configured Product in accordance with the Returns Policies. Custom made Products, special order items and cables cannot be returned unless defective. In the event of a conflict in terms, the applicable manufacturer return policy will supersede the CBTS Returns Policy.

6. Invoices; Taxes; Payment.

6.1 For Services, Customer will pay to CBTS the one-time (non-recurring) charges and/or the monthly (recurring) charges as set forth in the applicable Related Agreement. Unless otherwise specified in the applicable Related Agreement, CBTS will render invoices on a monthly basis.
6.2 For Product or Software purchases, CBTS will send an invoice to Customer when Products or Software licenses are shipped to Customer. The charges for CBTS-performed configuration (if any), shipping, or other specified charges will be added to the CBTS invoice.
6.3 Any sum payable under this Agreement is exclusive of VAT (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time, subject to receipt by the paying party of a valid VAT invoice.
6.4 Subject to Section 3, Customer will pay all applicable taxes, regulatory fees, interexchange carrier charges, and surcharges relating to the Services, Products, and Software other than taxes based on CBTS’ net income. If Customer is tax exempt, Customer shall provide CBTS with a copy of its tax exemption certificate before CBTS begins invoicing.
6.5 Invoices are due and payable in U.S. dollars within thirty (30) days of the date on the invoice, unless the parties otherwise agree in writing. Payments not received by the due date are considered past due. If any sum payable under this Agreement is not paid on or before the due date for payment the Customer will pay CBTS interest on that sum at 8% per annum above the base lending rate from time to time of the Bank of England from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis. The Customer will pay the interest together with the overdue sum. CBTS reserves the right to suspend performance of Services and/or suspend delivery of Products or Software if Customer owes an undisputed past due amount to CBTS, and to pursue any other right or remedy that CBTS may have in law or equity.
6.6 If Customer in good faith disputes any portion of a CBTS invoice, Customer shall, within thirty (30) days following the invoice date, remit to CBTS full payment of the undisputed portion of the invoice, and notify CBTS in writing of such dispute in sufficient detail to identify and substantiate the disputed amount. If Customer does not report a billing dispute within sixty (60) days following the invoice date, Customer shall have waived its right to dispute that invoice. CBTS and Customer agree to use their respective commercially reasonable efforts to resolve any billing dispute within thirty (30) days after CBTS receives written notice of the dispute from Customer. Any disputed amounts subsequently resolved in favor of Customer shall be credited to Customer’s account on the next invoice following resolution of the dispute. Any disputed amounts determined to be payable to CBTS will be due within fourteen (14) days of the resolution of the dispute.

7. Security Interest. Until ownership of the Products and/or Software has passed to the Customer, the Customer will hold the Products and/or Software on a fiduciary basis as CBTS’ bailee.

8. Export Control. Customer acknowledges that the export of certain Products or Software is subject to laws of the U.S. and foreign governments, including the export control restrictions contained in the U.S. Export Administration Act. Customer warrants that it shall not export any Product or Software without obtaining all required government authorizations and licenses, and shall comply with all applicable export control laws.

9. Software Licenses. All Software distributed or licensed by CBTS is subject to applicable license agreements (i.e., End User License Agreement or “EULA”) between the Software publisher and Customer. CBTS will convey to Customer the requisite license rights and EULA terms and conditions with respect to the Software, as applicable. Customer’s compliance with any Software publisher EULA is Customer’s responsibility. Customer agrees to comply with and be bound by the terms and conditions of the applicable EULA. If any Software is subject to shrink-wrap, click-through, on screen or similar license agreements that must be accepted during any installation or configuration service performed for Customer by CBTS, Customer shall accept the terms of such agreements and/or authorizes CBTS to accept the terms of such agreements on behalf of Customer.

10. Product and Software Warranties and Exclusions; Assumption of Risk.

10.1 CBTS shall pass through to Customer all Product and Software warranties from the equipment manufacturer or software publisher to the extent permitted by such manufacturer or publisher, which will be described in separate documents or on the manufacturer’s or publisher’s website. CBTS does not provide any additional warranties on Products or Software. CBTS can, at its discretion, assist Customer with obtaining extended warranties or service or support agreements, where available, on purchased Products and Software at Customer’s request.
10.2 Unless otherwise expressly provided in this Agreement, CBTS is not the manufacturer or developer of any Product or Software, and CBTS makes no warranties, express or implied, with respect to any Product or Software. Subject to Section 4, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from this Agreement and specifically, but without limitation, CBTS disclaims and makes no warranty to Customer, whether express, implied or statutory, as to the description, quality, merchantability, completeness, freedom from infringement claims or fitness for any particular purpose of any Product or Software.
10.3 Customer shall cooperate with and assist CBTS by providing to CBTS such information and access to Customer’s facilities, equipment, databases, software (collectively, “CPE“), personnel and other resources as may be required and/or described in the applicable Related Agreement, or as CBTS may reasonably request that is required for CBTS to implement and/or perform the Services. CBTS will comply with Customer’s physical security and safety regulations at Customer’s site as provided to CBTS in advance. Unless provided as part of the Service pursuant to a Related Agreement, Customer shall solely be responsible for the supply (including obtaining necessary licenses and authorizations), installation and maintenance of any CPE that is necessary to receive the Services. Customer is solely responsible for ensuring that all CPE is compatible with CBTS’ equipment where required to provide the Services. CBTS is not responsible for any changes to the Services that render CPE incompatible or necessitate an update or upgrade to the CPE.
10.4 All material, equipment, or software required for Customer to use the Services, Products or Software and made available to Customer by CBTS (“CBTS Provided Equipment“) shall at all times be and remain the exclusive property of CBTS (or its third party providers). Upon termination or expiration of the applicable Related Agreement, Customer shall return the CBTS Provided Equipment to CBTS in good working condition at Customer’s expense, normal wear and tear excepted. The CBTS Provided Equipment does not include the Products or Software purchased pursuant to this Agreement or the CPE. Customer shall be responsible for the loss of or damage to the CBTS Provided Equipment except if caused by the negligence or willful misconduct of CBTS or its third party providers.
10.5 In addition, unless explicitly provided therein, the warranties in Section 10.1 do not cover and Customer is liable for the cost of services required to repair damages, malfunctions, or failures caused by: (i) Customer’s failure to follow CBTS’ or the manufacturers’ written operation or maintenance instructions as applicable and provided to Customer or published on the manufacturer’s website; (ii) Customer’s unauthorized repair, modifications, or relocation of CBTS Provided Equipment or the attachment of any non-CBTS Provided Equipment; and (iii) Customer’s abuse, misuse or negligent acts.
10.6 Customer is responsible for: (i) use of the Services by its authorized users and any unauthorized access that occurs other than as a result of CBTS’ negligence or wilful misconduct; (ii) ensuring its users use the Services in accordance with any acceptable use policy established by CBTS from time-to-time, any applicable EULA, and in compliance with all applicable laws and regulations; and (iii) providing the necessary power and other infrastructure at Customer’s locations as required to receive the Services.
10.7 CBTS is not responsible for its inability to provide the Services to the extent caused by Customer’s failure to comply with its obligations under this Agreement.

11. Service Warranties and Exclusions.

11.1 CBTS warrants to Customer that the Services will be performed using reasonable skill and care and the Services will (for the term of the applicable Related Agreement) materially conform to all requirements and specifications identified in the applicable Related Agreement.
11.2 If CBTS fails to perform any Professional Services as warranted, Customer shall notify CBTS promptly of such (and in no event later than fifteen (15) days after the date such nonconforming Professional Services were rendered) with a reasonably detailed description of the nature of the nonconformity. Within thirty (30) days after receipt of such written notification, as Customer’s sole remedy, CBTS will re-perform such nonconforming Professional Services at no additional charge to Customer or, if such re-performance fails to provide Professional Services as warranted, CBTS will refund any fees paid to CBTS to the extent attributable to such nonconforming Professional Services.
11.3 Except as stated elsewhere in this Agreement, all Technological Services and Professional Services are provided on an “as is” basis. Notwithstanding anything stated in this Agreement and subject to Section 4 CBTS disclaims and makes no express or implied warranties of performance, non-infringement, merchantability or fitness for a particular purpose in relation to the Services. CBTS shall not be liable to the extent that a service breach results from any act or omission of Customer, its employees, or agents.
11.4 In the event that CBTS (or an applicable third party manufacturer, publisher or service-provider in the case of third party Products, Software or Services) chooses to end of life any of the Products, Software or Services provided to Customer, CBTS will provide Customer with reasonable notice of such intention and will work with the Customer to migrate to a comparable alternative Product, Software or Service. If Customer chooses not to so migrate then the applicable Related Agreement shall be terminated effective as of the end of life date (or such other date as CBTS and the Customer may reasonably agree on) without the requirement for Customer to pay any early termination fees.

12. Limitation of Liability.

12.1 To the maximum extent permitted by law, the limitations set forth in this Section 12 will apply to any and all claims and causes of action, regardless of whether such claims arise in contract, tort (including, without limitation, CBTS’ negligence), strict liability, indemnification or any other legal theory. Furthermore, Customer acknowledges that CBTS has agreed to the applicable pricing and negotiated this Agreement in reliance upon the limitations of liability and disclaimers of warranties contained in this Agreement and that such limitations and disclaimers form an essential basis of the bargain between the parties.
12.2 CBTS shall have no liability arising out of or in connection with this Agreement, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity contained in this Agreement and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under this Agreement, in each case howsoever caused including if caused by negligence (“Liability”) to the Customer for any:
1. 12.2.1 loss of profit (whether direct, indirect or consequential);
2. 12.2.2 loss of use, loss of revenue, loss of production or loss of business (in each case whether direct, indirect or consequential);
3. 12.2.3 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect or consequential);
4. 12.2.4 loss of anticipated savings or loss of margin (in each case whether direct, indirect or consequential);
5. 12.2.5 loss of bargain (whether direct, indirect or consequential);
6. 12.2.6 liability of the Customer to third parties (whether direct, indirect or consequential);
7. 12.2.7 loss of use or value of any data or software (whether direct, indirect or consequential);
8. 12.2.8 wasted management, operational or other time (whether direct, indirect or consequential);
9. 12.2.9 wasted expenditure incurred in reliance upon the anticipated performance of this Agreement by CBTS (whether direct, indirect or consequential). For the avoidance of doubt, the term “wasted expenditure” does not include the charges payable under the Agreement;
10. 12.2.10 loss or damage arising out of any failure by the Customer to keep full and up to date security copies of any computer program and data held or used by or on behalf of the Customer (whether direct, indirect or consequential); or
11. 12.2.11 indirect or consequential loss,
12. subject always to Section 12.4.
12.3 Notwithstanding anything contained herein or elsewhere (but subject to Section 4), with respect to any claims or causes of action arising from any actual or alleged breach by CBTS of this Agreement or in any way related to any Services, Products, or Software, the recovery and damages available to Customer shall be limited to, and CBTS’ maximum aggregate Liability shall not exceed, the following: (i) for any Liability relating to Technological Services, an amount equal to the monthly recurring charges paid by Customer during the preceding six (6) months for the Technological Services at issue, (ii) for Liability for Professional Services, an amount equal to the fees paid by Customer for the Professional Services at issue, and (iii) for Liability for Products or Software, an amount equal to the purchase price or license fees paid by Customer for the Products or Software at issue. The limitations of Liability set out in this Section 12.3 are cumulative and not per incident.
12.4 Nothing in this Agreement will operate to exclude or restrict one party’s Liability (if any) to the other:
1. 12.4.1 for death or personal injury resulting from its negligence or the negligence of a person for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair Contract Terms Act 1977);
2. 12.4.2 for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable; or
3. 12.4.3 for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
12.5 The exclusions from and limitations of liability contained in this Agreement will apply after as well as before the date of its termination.
12.6 The exclusions from, and limitations of, liability set out in this Section 12 will be considered severally. The invalidity or unenforceability of any one sub-clause or clause will not affect the validity or enforceability of any other sub-clause or clause and will be considered severable from each other.
12.7 Each of CBTS, CBTS’s Affiliated Legal Entities, employees, agents and sub-contractors will be entitled to enforce all the terms of this Section 12 subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of this Agreement. Accordingly and for the avoidance of doubt the financial limits on Liability set out in Section 3 are the maximum Liability of CBTS, its Affiliated Legal Entities, its employees, agents and sub-contractors in aggregate.
12.8 Notwithstanding any other term of this Agreement, CBTS will not be in breach of this Agreement to the extent its failure to perform or delay or defect in performance of its obligations under this Agreement arises as a result of:
1. 12.8.1 any breach by the Customer of its obligations contained in this Agreement;
2. 12.8.2 CBTS relying on any incomplete or inaccurate data provided by the Customer or a third party; or
3. 12.8.3 CBTS complying with any instruction or request by the Customer or one of its employees.

13. Indemnification.

13.1 Any indemnification related to claims of infringement by Products or Software must come from the equipment manufacturer or software developer, as applicable.
13.2 If Customer is, or in CBTS’ reasonable judgment may be, the subject of a valid third party claim of infringement against Customer which relates to any Technological Service provided by CBTS then CBTS shall, in its sole discretion, do any of the following as Customer’s sole and exclusive remedy: (i) provide substantially similar substitute Technological Service(s); (ii) obtain, at CBTS’ expense, rights as required to continue to provide the Technological Service(s); or (iii) terminate Customer’s right to receive the Technological Service(s) and refund to Customer the monthly recurring charges paid for the infringing Technological Service(s) under the affected Related Agreement, pro-rated over the number of months which have elapsed since the effective date of the Related Agreement.
13.3 Customer shall indemnify, defend and hold harmless CBTS, its affiliates, directors, officers, employees, agents, licensors, vendors, or subcontractors (each a “CBTS Indemnified Party“), from and against, and CBTS shall have no obligation to perform any remedies enumerated in Section 13.2 for, any claims, damages or expenses (including reasonable attorneys’ fees) resulting from the improper use or modification by Customer of any Product, Software or other material supplied by CBTS, which use or modification results in a claim of infringement of any third party intellectual property, including (without limitation) in respect of patents, copyright, trade secrets, or trademarks. Customer shall also indemnify, defend and hold each CBTS Indemnified Party harmless from and against any claims arising out of, resulting from, or relating to: (i) the contents of data provided by or transmitted by Customer or its users in connection with the Services, (ii) any CPE (as defined in Section 3), or (iii) any Service to the extent the claim is based on instructions, design or specifications provided by the Customer.
13.4 A party’s obligation to indemnify and defend the other with respect to any claim will be subject to: (i) the indemnified party providing the indemnifying party with prompt written notice of such claim; (ii) the indemnified party, at its expense, having the right to participate in the defense and settlement thereof; and (iii) the indemnified party providing the indemnifying party with the information and assistance necessary to defend or settle such claim as reasonably requested by the indemnifying party. The indemnifying party may settle such claim or proceeding with the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed provided that where the indemnified party is a named defendant or respondent, the indemnified party shall have the right to reject settlement or other disposition of the claim involving or requiring admission or acknowledgement of wrongdoing by or liability on the part of the indemnified party.

14. Independent Contractor. Each party agrees that it is an independent contractor and is entering into this Agreement as principal and not as agent for or for the benefit of any other person. Nothing contained herein shall create or be construed as creating a partnership, joint venture, agency, or any similar relationship between CBTS and Customer. Neither party shall have the authority to, nor shall any party attempt to, create any obligation on behalf of the other party.

15. Non-Solicitation. Throughout the Term of this Agreement and for a period of one (1) year thereafter, both parties agree not to directly solicit or hire any of the other party’s employees with whom it has had contact in connection with the performance of this Agreement, unless the hiring party obtains the prior written consent of the other party. Should a party hire an employee or agent of the other party through employment or otherwise within this time period without the other party’s prior written consent, the hiring party shall immediately pay as liquidated damages to the other party an amount equal to the employee’s or agent’s then current annual compensation. The restrictions in this Section will not preclude the parties from employing any such person who contacts the other party through his or her own initiative, or pursuant to a generally circulated public advertisement or other employment search.

16. Confidential Information.

16.1 During the term of this Agreement and for five (5) years thereafter, neither party shall disclose any terms or pricing contained in this Agreement or any confidential or proprietary information disclosed by the other party (“Confidential Information”). Confidential Information includes all information that ought to reasonably be deemed confidential, or that is labeled, marked or identified as either “Confidential” or “Proprietary” but shall exclude any information that is trivial or by its nature immaterial. Notwithstanding the foregoing, all information concerning CBTS’ pricing, technical, scientific, and financial information is hereby deemed to be Confidential Information regardless of whether it is marked as such. Confidential Information may not be disclosed to any person or entity except to the recipient’s employees, contractors, lenders and/or other advisors who have a need to know and who are bound in writing to protect the information from unauthorized use or disclosure. The recipient shall use the Confidential Information only for the purposes of this Agreement and shall protect it from disclosure using the same degree of care used to protect its own confidential or proprietary information, but in no event less than a reasonable degree of care. Confidential Information does not include any information which: (i) was already known to the receiving party free of any obligation to keep it confidential at the time of its disclosure; (ii) becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received from a third party without knowledge of any confidential obligation; (iv) is independently acquired or developed without violating any of the obligations under this Agreement; or (v) is approved for release by written authorization of the disclosing party. Further, the recipient may disclose Confidential Information pursuant to a judicial or governmental request, requirement or order. The recipient, however, shall, where permitted to do so by law, take all reasonable steps to give the disclosing party sufficient prior notice to contest such request, requirement or order. Confidential Information shall remain the property of the disclosing party and shall be returned to the disclosing party or destroyed upon request of the disclosing party or termination of this Agreement.

17. Personal Data To the extent that the Services require CBTS to process the Customer’s Personal Data, the following provisions shall apply.

17.1 The following words and expressions used in this Section 17 shall have the following meanings:
“Agreement Personal Data” Personal Data which is to be Processed under this Agreement, as more particularly described in each applicable Relevant Agreement;

“Data Protection Laws” any laws in force in the United Kingdom from time to time that relate to data protection, the processing of personal data and privacy; and references to “Data Subjects”, “Personal Data”, “Process”, “Processed”, “Processing”, “Processor” and “Supervisory Authority” have the meanings set out in, and will be interpreted in accordance with, such laws;

“Data Security Incident” a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Agreement Personal Data transmitted, stored or otherwise Processed;

“International Transfer” a transfer to a country outside the European Economic Area (as it is made up from time to time) of Agreement Personal Data which is undergoing Processing or which is intended to be Processed after transfer; and

“Sub-Processor” any third party appointed by CBTS to Process Agreement Personal Data.
17.2 The Customer authorises CBTS to Process the Agreement Personal Data during the term of this Agreement as a Processor for the purpose set out in the applicable Related Agreement.
17.3 The Customer warrants to CBTS that:
1. 17.3.1 it has all necessary rights to authorise CBTS to Process Agreement Personal Data in accordance with this Agreement and the Data Protection Laws; and
2. 17.3.2 its instructions to CBTS relating to Processing of Agreement Personal Data will not put CBTS in breach of Data Protection Laws, including without limitation with regard to International Transfers.
17.4 If CBTS considers that any instructions from the Customer relating to Processing of Agreement Personal Data may put CBTS in breach of Data Protection Laws, CBTS will be entitled not to carry out that Processing and will not be in breach of this Agreement or otherwise liable to the Customer as a result of its failure to carry out that Processing.
17.5 Each party will comply with the Data Protection Laws in respect of Agreement Personal Data.
17.6 The Customer authorises CBTS to engage any person as a sub-processor for the Processing of Agreement Personal Data. CBTS will inform the Customer of any intended changes concerning the addition or replacement of Sub-Processors, thereby giving the Customer the opportunity to object to such changes. If the Customer (acting reasonably) objects to such a change the objection will be referred to the dispute resolution procedure in Section 26. If the parties fail to resolve the dispute in accordance with Section 26 the Customer will be entitled to terminate this Agreement by giving not less than 30 days’ written notice to that effect to CBTS.
17.7 If CBTS appoints a Sub-Processor, CBTS will put a written contract in place between CBTS and the Sub-Processor that specifies the Sub-Processor’s Processing activities and imposes on the Sub-Processor no less protective terms to those imposed on CBTS in this Section 17. CBTS will remain liable to the Customer for performance of the Sub-Processor’s obligations.
17.8 CBTS will:
1. 17.8.1 Process the Agreement Personal Data only on documented instructions from the Customer (unless CBTS or the relevant Sub-Processor is required to Process Agreement Personal Data to comply with applicable law, in which case CBTS will notify the Customer of such legal requirement prior to such Processing unless such applicable laws prohibit notice to the Customer on public interest grounds). For the purpose of this Section 8.1, the obligations on CBTS to perform the Services are documented instructions. Nothing in this Section 17.8.1 will permit the Customer to vary CBTS’s obligations under this Agreement other than in accordance with the procedure set out above for Contract Change Requests at Section 3;
2. 17.8.2 without prejudice to Sections 3.2 and 17.5, immediately inform the Customer if, in its reasonable opinion, any instruction received from the Customer infringes any Data Protection Laws;
3. 17.8.3 ensure that any individual authorised to Process Agreement Personal Data:
  1. 17.8.3.1 is subject to confidentiality obligations or is under an appropriate statutory obligation of confidentiality; and
  2. 17.8.3.2 complies with Section 8.1; and
  3. 17.8.3.3 at the option of the Customer, delete or return to the Customer all Agreement Personal Data after the end of the provision of Services relating to Processing, and delete any remaining copies. CBTS will be entitled to retain any Agreement Personal Data which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting, taxation or record keeping purposes. This Section 17 will continue to apply to retained Agreement Personal Data.
17.9 CBTS will only make an International Transfer if:
1. 17.9.1 a competent authority or body of the United Kingdom or the European Commission (as applicable) makes a binding decision that the country or territory to which the International Transfer is to be made ensures an adequate level of protection for Processing of Personal Data;
2. 17.9.2 CBTS or the relevant Sub-Processor provides adequate safeguards for that International Transfer in accordance with Data Protection Laws, in which case the Customer will execute any documents (including without limitation data transfer agreements) relating to that International Transfer which CBTS or the relevant Sub-Processor requires it to execute from time to time; or
3. 17.9.3 CBTS or the relevant Sub-Processor is required to make the International Transfer to comply with applicable laws, in which case CBTS will notify the Customer of such legal requirement prior to such International Transfer unless such applicable laws prohibit notice to the Customer on public interest grounds.
17.10 CBTS will:
1. 17.10.1 implement the technical and organisational measures set out in the applicable Related Agreement;
2. 17.10.2 notify the Customer without undue delay after becoming aware of a Data Security Incident;
3. 17.10.3 provide reasonable assistance to the Customer (at the Customer’s cost) in:
  1. 17.10.3.1 complying with its obligations under the Data Protection Laws relating to the security of Processing Agreement Personal Data;
  2. 17.10.3.2 responding to requests for exercising Data Subjects’ rights under the Data Protection Laws, including without limitation by appropriate technical and organisational measures, insofar as this is possible;
  3. 17.10.3.3 documenting any Data Security Incidents and reporting any Data Security Incidents to any Supervisory Authority and/or Data Subjects; and
  4. 17.10.3.4 conducting privacy impact assessments of any Processing operations and consulting with Supervisory Authorities, Data Subjects and their representatives accordingly.
4. 17.11 CBTS will:
  1. 17.11.1 make available to the Customer all information necessary to demonstrate compliance with the obligations set out in this 17; and
  2. 17.11.2 allow for and contribute to audits, allowing inspections, conducted by the Customer or another auditor mandated by the Customer, provided that the Customer gives CBTS at least 60 days’ prior written notice of each such audit and that each audit is carried out at the Customer’s cost, during business hours, so as to cause the minimum disruption to CBTS’s business and without the Customer or its auditor having any access to any data belonging to a person other than the Customer. Any materials disclosed during such audits and the results of and/or outputs from such audits will be deemed to be Confidential Information of CBTS and the provisions of Section 16 will apply to them.
18.       Offsite Storage Data. Without prejudice and subject always to Section 17 (which, in the event of any conflict with this Section 18 (and/or with any other term of this Agreement) shall apply and take precedence in respect of Agreement Personal Data), in connection with the protection of Customer’s data, CBTS may contract with a third party for the offsite storage of Customer’s data. Customer hereby authorizes CBTS to store its data at a location other than a CBTS data center, and any such offsite storage shall not be deemed to be a breach of the confidentiality provisions.

19.       Customer Proprietary Network Information (CPNI). Under applicable law, Customer has a right and CBTS has a duty to protect the confidentiality of information regarding the telecommunications services Customer buys from CBTS, including the amount, type, and destination of Customer’s service usage; the way CBTS provides services to Customer; and Customer’s calling and billing records (collectively, “Customer Propriety Network Information” or “CPNI”). Customer hereby consents to CBTS sharing its CPNI with the CBTS Legal Entities, as well as CBTS agents and authorized sales representatives, to develop or bring new products or services to Customer’s attention; Customer further agrees that the foregoing parties may communicate these new products and services via email. This consent survives the termination of Services provided to Customer and is valid until Customer affirmatively revokes or limits such consent. In addition, CBTS may monitor Customer’s use of the Services as required for legal or regulatory purposes or as required to provide the Services.

20.       Regulatory Service Agreements and Tariffs. The terms and conditions of this Agreement are in addition to the applicable regulations and rates set forth in any applicable regulatory service agreements and tariffs. In the event of any conflict between the terms of this Agreement and applicable regulatory requirements, the parties agree to negotiate in good faith to resolve the conflict.

21.       Injunctive Relief. Any breach or threatened breach of a party’s obligations under this Agreement (including, without limitation, its obligation to protect Confidential Information) could cause irreparable harm to the non-breaching party, the financial amount of which would be extremely difficult to estimate. Accordingly, it is agreed that damages alone would not be an adequate remedy and the non-breaching will be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) for any such breach or threat of such breach. Such remedy will not be deemed to be the exclusive remedy for any such breach but will be in addition to all other remedies at law or in equity.

22.       Intellectual Property; License. The Services incorporate and include certain intellectual property rights of CBTS, its Affiliated Legal Entities and its licensors, embodied in hardware, software, documentation, support and employee expertise (“Intellectual Property”). For the Term of, and for purposes of, the applicable Related Agreement for Services, in addition to any licensing terms set out in a EULA applicable to the Intellectual Property, Customer shall have a limited, non-exclusive, non-transferable license to this Intellectual Property solely for Customer’s use of the Services. The Intellectual Property or any derivative or by-product thereof may not be used, sub-licensed, re-sold, rented, or distributed by Customer to any other party. Customer hereby agrees that it will not: (i) decompile, reverse engineer, disassemble, or otherwise reduce the Intellectual Property to a human-perceivable form; (ii) modify, destroy, rent, lease, loan, sell, or distribute all or any part of the Intellectual Property; (iii) create derivative works based in whole or in part upon the Intellectual Property; (iv) disclose to any third party any unique ideas or elements developed by CBTS or its Affiliated Legal Entities which are reflected in the Services, the manner by which the Services operate, or the content of the Services; (v) assist the development of competing Services using the Intellectual Property, or (vi) knowingly permit any other firm or individual to take or perform any action that Customer, in this Section, has agreed not to take. Customer agrees to indemnify and hold harmless each CBTS Indemnified Party from and against any loss, damage, cost, or expense incurred by CBTS or a CBTS Indemnified Party resulting from any modification or misuse of Intellectual Property. Customer shall have no right, title or interest in or to any network address or identifier (such as IP address or host name) that CBTS or its Affiliated Legal Entities use in the course of providing Services to the Customer and agrees that CBTS or its Affiliated Legal Entities may change any such address or identifier by providing notice to Customer. CBTS shall have no ownership rights in any content or data Customer transmits or stores using the Services, however Customer acknowledges that CBTS or its Affiliated Legal Entities may remove content or data from the Services if required pursuant to applicable law. To the extent that the Services require CBTS or its Affiliated Legal Entities to have access to Customer’s intellectual property, Customer grants CBTS and its Affiliated Legal Entities a royalty-free, transferable and sub-licensable license to use the Customer’s intellectual property solely for the purposes of providing the Services.

23.       Trademarks; Service Marks; Name and Advertising. Each party acknowledges that it will acquire no rights in any trademark, service mark, trade name, or other Intellectual Property used or owned by the other party by reason of this Agreement and will take no action that violates this acknowledgement. Neither party will use any trademark, service mark, trade name, nor other Intellectual Property used or owned by the other party without the prior written consent of such other party. Each party will submit to the other party all advertising, press releases, and other publicity matters relating to this Agreement in which such other party’s name or mark is mentioned or language from which the connection of the name or mark may be inferred or implied and will not publish or use such advertising, sales promotion, press releases, or publicity matters without the other party’s prior written approval.

24.       Assignment; Sub-contracting. The Customer may not assign its rights under this Agreement or sub-contract any if its obligations under this Agreement without the prior written consent of CBTS, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, the Customer may, upon written notice to the other party, assign its rights under this Agreement to one or more of its affiliates or subsidiaries or to any party acquiring substantially all of its assets. If Customer is merged with, acquired by, or acquires a competitor of CBTS then CBTS shall have the option to terminate this Agreement upon such merger or acquisition. CBTS may sub-contract any or all of the Services to be performed under this Agreement provided, however, CBTS shall remain responsible for the performance of such sub-contractors and their adherence to this Agreement. This Agreement will be binding upon and inure to the benefit of the successors and permitted assigns of both parties.

25.       Notices.
1. 25.1 Subject to Section 4, any notice given under or in connection with this Agreement will be marked for the attention of the specified representative of the party to be given the notice and
  1. 25.1.1 sent to that party’s address by pre-paid first class post, airmail post or mail delivery service providing proof of delivery; or
  2. 25.1.2 delivered to or left at that party’s address (but not, in either case, by one of the methods set out in Section 1.1); or
  3. 25.1.3 sent by email to that party’s email address.
2. 25.2 Any notice given in accordance with Section 1 will be deemed to have been served:
  1. 25.2.1 if given by first class post or mail delivery service, in each case as set out in Section 25.1.1, at 9.00am on the second Business Day after the date of posting;
  2. 25.2.2 if given by airmail post as set out in Section 25.1.1, at 9.00am on the fourth Business Day after the date of posting; and
  3. 25.2.3 if given as set out in Section 25.1.2, at the time the notice is delivered to or left at that party’s address; and
  4. 25.2.4 if given as set out in Section 1.3, at the time of sending the email.
  5. provided that if a notice is deemed to be served before 9.00am on a Business Day it will be deemed to be served at 9.00am on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 5.00pm on a Business Day it will be deemed to be served at 9.00am on the immediately following Business Day.
3. 25.3 For the purposes only of this Section 25, references to time of day are to the time of day at the address of the recipient party as referred to in Section 25 and references to Business Days are to normal working days in the territory in which such address is situated.
4. 25.4 This Section 25 will not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply.
26. Dispute Resolution; Binding Arbitration. The parties will attempt in good faith to promptly resolve any dispute arising out of or relating to this Agreement. In the event resolution cannot be reached, the disputing party shall give the other party written notice of the dispute. If the parties still fail to resolve the dispute within thirty (30) days of receiving such written notice, either party may seek arbitration. All disputes shall be finally settled by binding arbitration by a single, mutually agreeable arbitrator who is knowledgeable in the information technology field pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect, in London, U.K. Should the parties be unable to agree on a suitable arbitrator, the relevant provisions of the AAA will apply for appointment of the arbitrator. The arbitrator’s decision and award will be final and binding. The arbitrator shall have the power to order specific performance if requested. The arbitrator may, as a part of the arbitration award, permit the substantially prevailing party to recover all or part of its attorney’s fees and other out-of-pocket costs incurred in connection with such arbitration. The arbitrator will not have authority to modify or expand any of the provisions of this Agreement. Any dispute between the parties arising under this Agreement must be filed within one (1) year after the occurrence of the event giving rise to such cause of action.

27. Termination.
1. 27.1 Either party may terminate this Agreement or any Related Agreement if the other party fails to perform or comply with any material term or condition of this Agreement or any Related Agreement and such failure continues un-remedied for thirty (30) days after the defaulting party’s receipt of written notice thereof from the non-defaulting party specifying the failure. In addition, CBTS may suspend Services or terminate this Agreement and/or any Related Agreement if Customer fails to pay any undisputed amount which is due to CBTS under this Agreement within fifteen (15) days after receipt of written notification from CBTS of non‑payment. CBTS may also terminate this Agreement and/or any Related Agreement immediately if Customer engages in any misuse of the Products, Software or Services, or practices which are illegal and/or not compliant with law. In addition to CBTS other rights and remedies, CBTS may in its sole discretion assess and be entitled to all termination fees and charges described in Section 3 if CBTS terminates this Agreement under this Section, Section 4.1 or Section 24. Any accrued rights to payment and other remedies for breach of this Agreement will survive termination of this Agreement and any Related Agreement, regardless of the cause for termination.
2. 27.2 Either party shall have the right to terminate this Agreement or any Related Agreement immediately, without further obligation or liability, if: the other party becomes insolvent or ceases its normal business operations; voluntary or involuntary proceedings are commenced under any bankruptcy, reorganization, or other similar laws of any jurisdiction by or against the other party; any order is made or any resolution is passed for the winding up, liquidation, or dissolution of the other party; a receiver is appointed for it or its property; any of its goods or properties are taken in execution; or, it makes a general assignment for the benefit of creditors.
3. 27.3 Customer may terminate this Agreement or any Related Agreement for convenience at any time upon thirty (30) days written notice to CBTS. Unless otherwise expressly provided in an applicable Related Agreement, if Customer terminates this Agreement or a Related Agreement for convenience prior to the end of the Term, Customer is responsible for: (i) one hundred percent (100%) of all deferred payments and a pro-rata portion of any charges previously waived by CBTS; (ii) one hundred percent (100%) of all third party charges incurred as a result of the termination; (iii) all incurred or outstanding amounts under all invoices; and (iv) an early termination fee equal to fifty percent (50%) of its Monthly Recurring Charges identified in the terminated Related Agreement(s) multiplied by the number of months remaining in the term of the terminated Related Agreement(s). Customer will pay such amounts owed and termination fees within thirty (30) days after the termination date. Customer acknowledges that these termination fees are a genuine pre-estimate of the damages CBTS will incur as a result of the termination.
4. 27.4 If CBTS reasonably deems it necessary as a result of a substantiated concern relating to CBTS’ networks or its provision of services to other customers, CBTS may at any time and without notice restrict or suspend Customer’s access to the Services.
28. Survival. All provisions of this Agreement which expressly or by their nature are intended to survive termination or expiration of this Agreement will survive termination or expiration of this Agreement.

29. Governing Law and Jurisdiction; Limitations.
1. 29.1 This Agreement and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales.
2. 29.2 Subject to clause 3, the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement (including (without limitation) in relation to any non-contractual obligations).
3. 29.3 Any party may seek interim injunctive relief or any other interim measure of protection in any court of competent jurisdiction.
4. 29.4 Subject to clause 3, each party waives any objection to, and agrees to submit to, the jurisdiction of the courts of England and Wales. Each party agrees that a judgment or order of any such court is binding upon it and may be enforced against it in the courts of any other jurisdiction.
5. 29.5 Any arbitration or legal action between the parties arising under this Agreement must be filed within two (2) years after the occurrence of the event giving rise to such cause of action.
30. Entire Agreement; Amendments.
1. 30.1 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all proposals, oral or written, all negotiations, discussions, and all past dealings between the parties relating to the subject matter hereof and:
  1. 30.1.1 each party acknowledges and agrees that no employee, officer, agent, or representative of the other party has the authority to make any representations, statements, or promises in addition to or different than those contained in this Agreement;
  2. 30.1.2 each party acknowledges and agrees that it is not entering into this Agreement in reliance upon and it will have no remedy in respect of, any misrepresentation, representation, statement, or promise (whether made by the other party or any other person and whether made to the first party or any other person) not expressly stated in this Agreement;
  3. 30.1.3 nothing in this Section 30 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
2. 30.2 This Agreement may be amended only in writing, executed by an authorized representative of each party.
31.       Force Majeure. Except for the obligation to make payments for amounts due, neither party shall be liable to the other nor deemed in default of this Agreement if and to the extent that such party’s performance of this Agreement is delayed or prevented due to a Force Majeure event. The term “Force Majeure” means an event, circumstance or occurrence to the extent it is beyond the reasonable control of the party affected, including but not limited to acts of God, fire, explosion, earthquake, flood, storm, lightning, or other similar catastrophe; vandalism; cable cut; cyber-attack; any law or regulation of any governmental entity, court, or civil or military authority having jurisdiction over either of the parties; national emergencies, terrorism, insurrections, riots or wars; strikes or lockouts; or manufacturers’ shortages or constraints. In the event of such a delay or inability to perform, the time for performance will be extended for a period of time equal to the length of the Force Majeure event. Notwithstanding the foregoing, if CBTS is unable to deliver Services for seven (7) consecutive days due to a Force Majeure event, Customer shall not be obligated to pay CBTS for the affected Services for so long as CBTS is unable to deliver.

32.       Legality; Enforceability. If any provision contained in this Agreement is held to be invalid or illegal in any respect, such invalidity or illegality will not affect any other provision hereof, this Agreement will be construed as nearly as possible to reflect the original intentions of the parties, and all other provisions will remain in full force and effect.

33.       Request for Information. If CBTS and/or its Affiliated Legal Entities are required to provide information or documentation (including but not limited to requests for information made by Customer or its employees or customers) issued by a court or governing body of competent jurisdiction (or made pursuant to a subpoena) in any form (including but not limited to electronically stored information) related to the Services, Products, Software and/or relationship with Customer, then Customer shall be responsible for CBTS’ reasonable costs to comply.

34.       Publicity. Customer agrees that CBTS may use Customer’s name in a reasonable manner for the purpose of references, presentations, and Customer identification lists, brochures, manuals and marketing.

35.       No Third-Party Beneficiaries. Save as provided in Section 1.3 and 12.7, the parties do not intend that any term of the Agreement will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person. The parties may vary or rescind the Agreement without the consent of the Affiliated Legal Entities or CBTS’ employees, agents and sub-contractors.

36.       Waiver. The waiver by a party of any breach of this Agreement by the other party will not operate as a waiver of subsequent breaches of the same or different kind. The failure of a party to exercise any rights under this Agreement in a particular instance will not operate as a waiver of such party’s right to exercise the same or different rights in subsequent instances. No course of dealing or failure by any party to strictly enforce any term, right or condition of this Agreement will be construed as a waiver of such term, right or condition.

37.       Election of Remedies. Except as otherwise expressly stated, the rights and remedies of a party with respect to any failure of the other party to comply with the terms or conditions of this Agreement (including, without limitation, termination rights) are not exclusive, and the exercise thereof will not constitute an election of remedies.

38.       Counterparts. This Agreement may be executed in multiple counterparts, each of which will be an original and all of which together will constitute one and the same agreement.

39.       Headings. Headings are for convenience of reference only and will in no way affect interpretation of this Agreement.