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.
3. Change Request; Change Authorization.
4. Purchase Orders, Acceptance, and Cancellation.
5. Delivery, Inspection, Acceptance and Returns.
6. Invoices; Taxes; Payment.
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.
11. Service Warranties and Exclusions.
12. Limitation of Liability.
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.
17. Personal Data To the extent that the Services require CBTS to process the Customer’s Personal Data, the following provisions shall apply.
“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.
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.
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.
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.
30. Entire Agreement; Amendments.
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.