MSLA

1. SERVICES AND SUPPORT

   1.1    Subject to the terms and conditions of this Agreement, Company will provide the Services, as identified in each Order Form, pursuant to the service levels in the Company Service-level Agreement (the “SLA”) which is made an integral part hereof as and by way of reference. Customer shall order the Services by completing and executing an Order Form, and each Order Form is subject to acceptance by Company, in its sole discretion, through Company’s execution of the Order Form. Each accepted Order Form executed pursuant to this Agreement shall be deemed incorporated into this Agreement by reference. Any change to the scope of any Services or payment obligation contained in an Order Form shall be made only in writing and signed by authorized representatives of Company and Customer. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel, passwords it deems inappropriate.

   1.2   The parties acknowledge that certain information is to be provided by Customer (“Customer Data”), including Consumer Information (as defined in Section 4.2) as applicable. Company will not be liable for any failure to perform Services that is caused by Customer’s delay in or failure to provide Customer Data. Customer grants Company a world-wide, non-exclusive, royalty-free license during the term of this Agreement to use, reproduce, electronically distribute, display, and perform the Customer Data, but solely to the extent necessary to provide the Services to Customer in accordance with the terms of this Agreement. Notwithstanding the foregoing, Company may use anonymized and aggregated Customer Data for its business purposes.

   1.3   All Customer Data that relates to Customer’s end-customers (including, but not limited to, personally identifiable information) shall not be transmitted via unapproved mechanisms/protocols (e.g., email). Such Customer Data shall only be transferred and/or transmitted to Company pursuant to a mutually agreed upon (in writing) transfer protocol.

   1.4   Subject to the terms hereof, Company will provide Customer with support services, through electronic mail or telephone, in accordance with Company’s standard practice and not less than those set forth in the SLA. Additionally, Company shall comply with all applicable United States laws, rules, and regulations in the provision of the Services to Customer under this Agreement.

2. PROFESSIONAL SERVICES
     
    2.1    Company may from time to time perform Professional Services as may be agreed upon by the parties. Such Professional Services shall be set forth in a SOW that shall include the scope of implementation or consulting services, the anticipated schedule, the fee structure, and the deliverables (if any) to be provided as part of the Professional Services. All SOWs executed pursuant to this Agreement shall be deemed incorporated herein and be subject to the terms and conditions of this Agreement. Any change to the scope of any deliverable, milestone, or payment obligation contained in a SOW shall be made only in writing and signed by authorized representatives of Company and Customer. Unless otherwise agreed by the parties in writing, Company shall have no obligation to provide Professional Services beyond the scope of matters expressly described in a SOW. Customer shall provide Company with: (i) one (1) designated contact for all questions and issues relating to Professional Services; (ii) access to Customer’s facilities and office support as may be reasonably requested by Company; and, (iii) the services of sufficiently qualified Customer personnel as may be reasonably necessary to enable Company to perform the Professional Services. All work product created under a valid SOW shall be consider part of the Services as defined in this Agreement.

3. RESTRICTIONS AND RESPONSIBILITIES

   3.1    Customer will not, and will not permit any employee or third party to: (i) gain or attempt to gain unauthorized access to the Services, or any element thereof, or circumvent or otherwise interfere with any authentication or security measures of the Services; (ii) interfere with or disrupt the integrity or performance of the Services; (iii) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or program through the Services; (iv) decompile, disassemble, reverse engineer, or attempt to discover any source code or underlying ideas or algorithms of the Services (except to the extent that applicable law expressly prohibits such a reverse engineering restriction); (v) provide, lease, lend, use for timesharing or service bureau purposes, or for any purpose other than its own use for the benefit of its end users and customers; (vi) list or otherwise display or copy any code of the Services; (vii) copy the Services (or component thereof), develop any improvement, modification or derivative work thereof, or include any portion thereof in any other service, equipment, or item; (viii) allow the transfer, transmission (including, without limitation, making available on-line, electronically transmitting, or otherwise communicating to the public), export, or re-export of the Services (or any portion thereof) or any technical data; (ix) perform benchmark tests on the Services without the prior written consent of Company (anyresults of such permitted benchmark testing shall be deemed Company Proprietary Information); (x) use, evaluate, or view the Services for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Services; or, (xi) otherwise use the Services except as expressly allowed under this Agreement. Customer may use the Services only for its own business purposes as specified in an Order Form.

   3.2    Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications then in effect. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Additionally, Customer agrees to be bound by any end-user software agreements that govern the installation and use of such Equipment.

   3.3    Customer will cooperate with Company in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Company may reasonably request. Customer will also cooperate with Company in establishing a password or other procedures for verifying that only designated employees of Customer have access to the Services, including any administrative or other functions of the Services. Customer is in sole control of which employees may participate in the Services, including when an employee is permitted to access the Services and when an employee’s access to the Services is terminated (such as when an employee leaves Customer’s employment).

4. CONFIDENTIALITY

   4.1    Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). For purposes of clarity, Proprietary Information shall include all Customer Data and all Consumer Information. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, using the same standard of care to protect the information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care; and, (ii) not to divulge to any third person any such Proprietary Information unless necessary to provide the Services. The Disclosing Party agrees that the foregoing shall not apply with respect to any Proprietary Information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or, (e) is required by law.

   4.2    Company hereby acknowledges that Customer is subject to the privacy regulations under the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1138), as amended from time to time (the “GLB Act”) and the regulations promulgated thereunder, pursuant to which Customer is required to ensure that Company appropriately safeguards the privacy, use, and protection of nonpublic personal information of Customer’s employees, customers, or prospective customers. For purposes of this Agreement, “Consumer Information” shall mean any non-public personally identifiable information or records relating to a consumer, provided, however that “Consumer Information” shall not mean any such information Company has obtained independently and/or not in connection with this Agreement. Therefore, notwithstanding anything to the contrary contained in this Agreement, Company agrees that: (i) it shall not disclose or use any Consumer Information except to the extent necessary to perform the Services; and, (ii) it shall maintain, and shall require all third parties to maintain, effective information security measures to protect Consumer Information from unauthorized disclosure or use. Notwithstanding the foregoing, Company may use for development, diagnostic, and corrective purposes any data and information it collects relating to the Services, and may use anonymized and aggregated Consumer Information for its business purposes. The obligations set forth in this Section shall survive termination of this Agreement.

   4.3    Upon the written request of the Disclosing Party or upon termination of this Agreement, whichever occurs first, the Receiving Party shall return or destroy (and certify such destruction in a signed writing) all Proprietary Information of Disclosing Party, including all copies thereof and materials incorporating such Proprietary Information, whether in physical or electronic form. Each party may retain a copy of the other party’s Proprietary Information solely for archival purposes; provided, however, that in no event shall a party retain any Proprietary Information of the other party unless otherwise required by applicable law. To the extent that it is impracticable to return or destroy any Proprietary Information, and with respect to any copies retained for archival purposes, the Receiving Party shall continue to maintain the Proprietary Information in accordance with this Agreement. The confidentiality obligations set forth in this Agreement will remain in full force and effect until such Proprietary Information, through no act or omission of the Receiving Party, ceases to be Proprietary Information as defined hereunder.
   4.4    Upon termination of this Agreement, Company will return to Customer any consumer information generated through the Services, including any Consumer Information, and will retain and destroy it only in accordance with the treatment of such Proprietary Information as set forth in Section 4.3.
    4.5    Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis.

5. RECORD RETENTION

Company will retain any and all records, logs, and procedures in accordance with commercially-accepted industry practices that relate to Company or that pertain directly to the provision of Services under this Agreement, whether stored in electronic or hard copy, including with respect to Consumer Information, Customer Data, finances, facilities, security, systems, and procedures, in accordance with the longer of Company’s records retention guidelines or as is required by applicable law.

6. SECURITY STANDARDS

Company and Customer agree to have implemented a comprehensive written information security program that includes administrative, technical, and physical safeguards appropriate to the size and complexity and the nature and scope of the Services provided to Customer under this Agreement, as well as the Consumer Information at issue, inclusive of the data security requirements set forth in the Security Requirements which is made an integral part hereof as and by way of reference. Company and Customer hereby acknowledge and agree to comply with the provisions thereof.

7. DISASTER RECOVERY AND INCIDENT RESPONSE PLANS

Company agrees to maintain a disaster recovery program, a business continuity plan, and an incident response plan for all technology, operational, financial, or other resources required to provide the Services, that is consistent in all material respects with all applicable legal requirements and regulations (“Programs”). A copy of the Program will be provided to Customer upon reasonable request once every twelve (12) months. Company, at its sole cost, shall test its Programs on an annual basis. In the event that the testing results identify any compliance or other issues with respect to Company’s Programs, Company shall notify Customer and use commercially reasonable efforts to correct any such issue. Company will notify Customer as soon as possible after it deems a Service Outage to be a disaster in accordance with the applicable Program and will address any such outage in accordance with the terms of the applicable Program.

8. INTELLECTUAL PROPERTY RIGHTS

    8.1    Except as expressly set forth herein, Company alone (and its licensors, where applicable) has and will retain all intellectual property rights relating to the Services or the software or any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any third party relating to the Services and/or the software, which are hereby assigned to Company. Customer will not copy, distribute, reproduce, or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or software, or any intellectual property rights.

    8.2    Company will obtain and process mortgage, financial, and real estate content/data provided by, on behalf of, or in connection with Customer and its end-customers (“Content”). Customer grants Company a world-wide, non-exclusive, royalty-free license during the term of this Agreement to use, reproduce, electronically distribute, display, and perform the Content, but solely to the extent necessary to provide the Services to Customer. Notwithstanding the foregoing, Company may use anonymized and aggregated Content for its business purposes. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title, and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If Company receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Company may (but is not required to) suspend activity hereunder with respect to that Content.

9. PAYMENT OF FEES

    9.1    Customer will pay Company the then applicable fees for the Services (the “Fees”), as set forth in the corresponding Order Form.

   9.2   Company will bill all Fees through an invoice and full payment for invoices issued in any given month is due upon receipt, or the Services may be suspended or terminated. Unpaid Fees that are not the subject of a good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

    9.3   Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Services Term, upon sixty (60) days prior notice to Customer (which may be sent by email). If Customer is not satisfied with any such new charge or Fee, Customer shall have the right to terminate this Agreement at the end of the Services Term by written notice to Company at least thirty (30) days prior to the end of the Services Term.

   9.4     If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than ninety (90) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s Billing department.

10. TERM AND TERMINATION

      10.1   Term. Subject to earlier termination as provided below, this Agreement is for the Services Term as specified in the Order Form, which automatically continues on a month-to-month basis, unless either party requests termination prior to the 15th day of the month (in which case the termination is effective as of the first day of the next month).

    10.2   Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement, without notice: (i) upon the institution by or against the other party of insolvency, receivership, or bankruptcy proceedings; (ii) upon the other party’s making an assignment for the benefit of creditors; or, (iii) upon the other party’s dissolution or ceasing to do business. Customer will pay in full for the Services up to and including the last day on which the Services are provided.

     10.3    Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, Audit, confidentiality obligations, warranty disclaimers, and limitations of liability.

11. AUDIT

     11.1    Company Audit. During the Services Term, Customer agrees to keep all usual and proper records and books of account and all usual and proper entries relating to the Fees. With reasonable notice and no more than once (1) per calendar year, Company, at its expense, may cause an audit and/or inspection to be made of Customer’s records and facilities during normal business hours in order to verify statements issued by Customer and Customer’s compliance with its obligations to pay the Fees. Any such audit shall be conducted by an auditor or inspector selected by the other party. Such auditor or inspector shall provide a summary of its findings regarding its verification of the statements by Customer and the Customer’s compliance with its obligation to pay the Fees. Subject to such audit or inspection team signing a non-disclosure agreement acceptable to Customer, Customer agrees to provide Company’s designated audit or inspection team access to the relevant Customer’s records and facilities. Customer shall pay Company the full amount of any underpayment revealed by the audit or inspection plus interest from the date such payments were due under the terms of this Section 11. Notwithstanding the foregoing, if such audit or inspection reveals an underpayment by Customer of more than five percent (5%) for the period covered by the audit or inspection report, Customer shall reimburse Company for all of the fees and costs associated with such audit and the amount underpaid with interest from the date such payment was due pursuant to this Section 11.

    11.2    Customer Audit. If required by a regulator of Customer in connection with any investigation or enforcement action by such regulator and upon reasonable notice, but in no other instance, the Customer shall be entitled to perform a compliance audit (the “Audit Right”) of Company to verify that Company understands and is complying with applicable law. The implementation of an Audit Right must occur during Company’s normal business hours. In connection with such Audit Right, Company will cooperate in providing to Customer any relevant information reasonably requested and with reasonable notice by Customer which is necessary or required to assess the performance of Company hereunder in accordance with applicable law and compliance with the terms and conditions of this Agreement.

12. INSURANCE

During the term of this Agreement, Company shall maintain, at a minimum: (i) commercial general liability insurance (including contractual liability coverage), with minimum liability limit of USD [N.A.] per occurrence and N.A. in the aggregate for bodily injury, property damage, and personal and advertising injury; (ii) adequate insurance to comply with all applicable worker’s compensation laws; (iii) errors and omissions insurance with a minimum liability limit of [N.A.]; and, (iv) network security and privacy liability insurance with a minimum of [N.A.].
All insurance coverage required hereunder shall be procured from insurers with an A.M. Best’s performance rating of at least A- and with a financial size category of at least Class VII.

13. REPRESENTATIONS AND WARRANTIES

     13.1    Customer Warranties. Customer represents and warrants to Company as follows, as of and from the Effective Date of this Agreement and continuing all times during the existence thereof:

(i) This Agreement has been duly authorized, executed, and delivered by Customer and constitutes a legal and binding agreement of Customer, enforceable in accordance with its terms.

(ii) Entry into and performance under this Agreement is not now and will not be restricted by any article of incorporation, partnership agreement, article of organization, charter, bylaw, operating agreement, judgment, decree, statute, rule, regulation, contract or agreement of any kind applicable to Customer.

(iii) Customer owns all rights, title, and interests in and to the Customer Data, including any additional Consumer Information generated through the Services.

(iv) Customer is permitted to provide Consumer Information to Company as contemplated by this Agreement, to the extent necessary for Company to provide the Services to Customer in accordance with the terms of this Agreement.

(v) Customer will comply with all laws, regulations, and other requirements applicable to its use of the Services.

    13.2    Company Warranties; Disclaimer of Warranties. Company represents and warrants to Customer as follows, as of and from the Effective Date of this Agreement and continuing all times during the existence thereof:

(i) This Agreement has been duly authorized, executed, and delivered by Company and constitutes a legal and binding agreement of Company, enforceable in accordance with its terms.

(ii) Entry into and performance under this Agreement is not now and will not be restricted by any article of incorporation, partnership agreement, article of organization, charter, bylaw, operating agreement, judgment, decree, statute, rule, regulation, contract or agreement of any kind applicable to Company.

(iii) Company shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use commercially reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

14. MUTUAL INDEMNIFICATION

     14.1    By Company. Company agrees to: (a) defend Customer against any demand, claim, action, or suit by an unaffiliated third party (each, a “Claim”) that:
(i) the Services infringe any U.S. patent or U.S. copyright or other intellectual property right or misappropriates any trade secret of such third party; or, (ii) any security breach resulting in a disclosure of Customer Data or Consumer Information to an unauthorized third party; and, (b) indemnify Customer for settlement amount, judgments, or damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) finally awarded to such third party by an arbitrator, a court of competent jurisdiction, or agreed to as part of a monetary settlement arising out of such Claim. Notwithstanding anything to the contrary herein, Company shall have no liability or obligation to Customer with respect to any claim related to: (i) any content not created by or on behalf of Company; (ii) resulting in whole or in part in accordance from Customer specifications or configurations, (iii) Services that are materially modified by Customer after delivery by Company; (iv) combined with other commercially unforeseen products, processes, or materials where the alleged infringement relates to such combination; (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or, (vi) where Customer’s use of the Services (and related software) is not materially in accordance with this Agreement or any documentation related to the software and Services provided to Customer.

   14.2   By Customer. Customer agrees to: (a) defend Company against any Claim arising out of or relating to: (i) use of the Services by Customer, not materially in accordance with the terms of this Agreement, except to the extent such Claim is subject to Company’s obligations set forth in the preceding paragraph; (ii) any third party that gains access to the Services as a result of Customer’s failure to take reasonable measures to prevent unauthorized access to the Services; (iii) Customer’s breach of Section 16; or, (iv) use of the Services by any authorized user; and, (b) indemnify Company for Losses finally awarded to one or more third parties by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim.

    14.3    Procedure. The obligations set forth in this Section 14 are conditioned upon the following: (i) the party seeking indemnification (“Indemnitee”) must notify the indemnifying party (“Indemnitor”) in writing, promptly after receipt of actual notice of any Claim; (ii) Indemnitor shall have sole control and authority with respect to the defense, litigation, compromise, or settlement of such Claim (except to the extent that any settlement involves material commitments, responsibilities, or obligations on the part of Indemnitee, in which case such settlement shall require the prior written consent of Indemnitee, which consent shall not be unreasonably delayed, conditioned, or withheld); and, (iii) Indemnitee shall provide reasonable information, cooperation, and assistance as required by Indemnitor (at Indemnitor’s expense). Indemnitee reserves the right to participate at its own cost in any proceedings with counsel of its own choosing, provided, however, that Indemnitee shall at all times be subject to Indemnitor’s sole control and authority with respect to defending, litigating, or settling the Claim.

15. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF COMPANY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO COMPANY HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

16. U.S. GOVERNMENT MATTERS

The Services and software are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) (OFAC, 31 CFR Part 500 et seq.). Customer will not import, export, re-export, transfer, or otherwise use the software or Services in violation of these laws and regulations, including by engaging in any unauthorized dealing involving: (i) a U.S. embargoed country (currently, e.g., Cuba, Iran, North Korea, and Syria); (ii) a party included on any restricted person list, such as the Specially Designated Nationals and Blocked Persons list published by OFAC, or the Commerce Department’s Denied Persons List or Entity List; or, (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the software and Services, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause Company to be violation of these laws and regulations.

17. PUBLICITY AND REFERRAL

Unless required by law, neither party will, without the prior written approval of the other party, make any public statement, press release, presentation, or other announcement relating to the existence or terms of this Agreement or the relationship between the parties.

18. MISCELLANEOUS

      18.1     Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

      18.2    Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of DL without regard to its conflict of laws provisions. Any action or proceeding to enforce rights under this Agreement shall be brought exclusively in the courts of the State of Delaware and each party hereby consents to its exclusive jurisdiction and venue.

       18.3    Status of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and no one party is authorized to act on behalf of the other party or bind the other party in any respect whatsoever.

       18.4    Entire Agreement. Both parties agree that this Agreement and the SLA and Security Requirements are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

      18.5    Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

      18.6    Waiver; Precedence. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. It is the intention of the parties that this Agreement be controlling over additional or different terms of any SOW or addenda, if applicable, even if accepted in writing by both parties, and that waivers and amendments shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or wavier.

        18.7     Headings. Section heads are for convenience and are not to be considered a substantive part of this agreement.

      18.8    Dispute  Resolution. Except for the right of either party to  apply  to  a court of competent jurisdiction for a temporary restraining order or other equitable remedy, the parties agree to attempt, after written notice of any dispute hereunder, in good faith to resolve any dispute, controversy, or claim arising out of or relating to this Agreement promptly through negotiations between senior management of the parties. If senior management is unable to resolve the dispute in a mutually agreeable manner within seven (7) days, then the parties may pursue their rights hereunder in any manner available to them.

       18.9    Assignment.  Neither party may assign this Agreement  or any of its right or obligations hereunder without the other party’s prior written consent; except that either party may assign this Agreement and its rights and obligations, without the other party’s consent, to any third party who succeeds to substantially all of its business or assets, whether by sale of assets, merger, or otherwise. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

       18.10   Force Majeure.  Neither party shall be liable for delays in, or failure to, manufacture or to deliver due to acts of God, acts of the other party, acts of civil or military authority, acts of public enemy, fires, strikes, labor disputes, flood, epidemics, war, riots, civil disturbances, insurrections, accidents, explosions, earthquakes, the elements, or any other causes beyond their reasonable control, provided that such default or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the non-performing party through the use of alternate sources, workaround plans, or other means (including with respect to Company by Company meeting its obligations for performing disaster recovery services as described in this Agreement). In the event of a force majeure event, each party will be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail. The non-performing party shall continue to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. Any party so delayed in its performance will immediately notify the party to whom performance is due by email (to be confirmed in writing within two (2) days of the inception of such delay) and describe at a reasonable level of detail the circumstances causing such delay.

     18.11    Legal Fees.  In any action or proceeding to enforce  rights under this   Agreement,  the prevailing party  will be entitled  to  recover  costs and attorneys’ fees.