6.7 PERFORMANCE STANDARDS AND SERVICE LEVEL AGREEMENTS. Service Provider shall perform all Services in accordance with the performance standards and service level agreements set forth in Exhibit C attached hereto and incorporated herein by reference ("SLAs"). In the event that Service Provider fails to meet any SLA for two (2) consecutive measurement periods, Customer may, in addition to any other remedies available at law or in equity, require Service Provider to prepare and implement a remediation plan acceptable to Customer within fifteen (15) days of written notice of such failure.
6.8 SUBCONTRACTOR OBLIGATIONS. Service Provider may engage subcontractors to perform portions of the Services; provided, however, that: (a) Service Provider obtains Customer's prior written consent to engage any subcontractor (which consent shall not be unreasonably withheld, conditioned or delayed); (b) any such subcontractor agrees in writing to be bound by confidentiality and intellectual property obligations substantially similar to those set forth herein; and (c) Service Provider remains fully responsible and liable for the performance of all Services and compliance with all terms and conditions of this Agreement, regardless of whether such Services are performed by Service Provider or its subcontractors.
7.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to the other that: (a) it has full corporate power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement by such Party has been duly authorized by all necessary corporate action on the part of such Party; (c) this Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms; (d) the execution, delivery and performance of this Agreement by such Party does not and will not violate any provision of its certificate of incorporation, by-laws or other organizational documents; and (e) the execution, delivery and performance of this Agreement by such Party does not and will not violate any law, regulation, order, judgment or decree applicable to such Party.
7.2 SERVICE PROVIDER REPRESENTATIONS. Service Provider further represents and warrants that: (a) it has and will maintain throughout the Term all necessary licenses, permits, authorizations and approvals required to perform the Services; (b) the Services will be performed in a good and workmanlike manner in accordance with industry best practices; (c) the Services will conform to the specifications and requirements set forth in the applicable Statement of Work and will be free from defects in materials and workmanship; (d) it will assign qualified personnel with appropriate skills, training and experience to perform the Services; and (e) it will not use any Customer Confidential Information except as expressly permitted hereunder.
7.3 INTELLECTUAL PROPERTY INDEMNIFICATION. Each Party shall defend, indemnify and hold harmless the other Party from and against any and all third party claims, demands, suits, proceedings, losses, damages, costs and expenses (including reasonable attorneys' fees) arising out of or relating to any claim that the indemnifying Party's performance of this Agreement infringes any patent, copyright, trademark, trade secret or other intellectual property right of a third party; provided, however, that the foregoing indemnification obligation shall not apply to the extent such claim arises from: (a) modifications to the indemnifying Party's intellectual property made by or at the direction of the indemnified Party; (b) use of the indemnifying Party's intellectual property in combination with products, services or technology not provided by the indemnifying Party; or (c) use of the indemnifying Party's intellectual property other than in accordance with this Agreement and any applicable documentation.
7.4 DATA SECURITY AND CONFIDENTIALITY PROVISIONS. Both Parties acknowledge that in the performance of their respective obligations hereunder, each Party may have access to certain confidential, proprietary or trade secret information of the other Party, including but not limited to technical data, know-how, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by such Party, whether orally or in writing, whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Each Party agrees that it shall not use any Confidential Information of the other Party for any purpose except to perform its obligations or exercise its rights under this Agreement. Each Party agrees that it will protect the confidentiality of all Confidential Information of the other Party and shall not disclose any such Confidential Information to third parties without the prior written consent of the disclosing Party.
7.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 7.5 AND THE ALLOCATION OF RISK HEREIN ARE AN INTEGRAL PART OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, EACH PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
7.6 CYBER LIABILITY AND DATA BREACH NOTIFICATION. In the event of any actual or suspected unauthorized access to, acquisition of, use of, or disclosure of Customer Data or any other security incident affecting Customer Data (each, a "Security Incident"), Service Provider shall: (a) notify Customer orally within twenty-four (24) hours and in writing within seventy-two (72) hours of becoming aware of such Security Incident; (b) investigate such Security Incident and provide Customer with a detailed written report of its findings and conclusions within ten (10) business days; (c) take all reasonable steps to mitigate the effects of such Security Incident and prevent its recurrence; (d) cooperate fully with Customer and any law enforcement agencies in the investigation of such Security Incident; and (e) bear all costs and expenses associated with providing the notifications required under applicable law.
8. TERMINATION PROVISIONS
8.1 TERMINATION FOR CONVENIENCE. Either Party may terminate this Agreement at any time, with or without cause, upon ninety (90) days' prior written notice to the other Party. Customer may also terminate any Statement of Work at any time, with or without cause, upon thirty (30) days' prior written notice to Service Provider. Upon termination for convenience, each Party shall: (a) immediately cease performance of its obligations hereunder (except as necessary to wind down in an orderly fashion); (b) return or destroy all Confidential Information of the other Party in accordance with Section 6; (c) pay all amounts due and owing to the other Party through the effective date of termination; and (d) cooperate in good faith to ensure an orderly transition of services to alternative providers or back to Customer.
8.2 TERMINATION FOR CAUSE. Either Party may terminate this Agreement immediately upon written notice if the other Party: (a) materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof (or such shorter cure period as may be specified elsewhere in this Agreement); (b) becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy or reorganization, has a receiver appointed for its business or assets, or ceases to carry on business in the ordinary course; or (c) engages in any conduct that materially and adversely affects the other Party's reputation or business relationships with third parties.
8.3 EFFECT OF TERMINATION. Upon termination or expiration of this Agreement: (a) each Party shall immediately return or destroy (at the disclosing Party's option) all Confidential Information of the other Party; (b) all licenses granted hereunder shall immediately terminate; (c) each Party shall pay all amounts due and owing to the other Party through the effective date of termination; and (d) the provisions of Sections 6 (Confidentiality), 7.3 through 7.6 (Indemnification and Limitation of Liability), 8.3 (Effect of Termination), 8.4 (Survival), 9 (Dispute Resolution), and 10 (General Provisions) shall survive such termination or expiration.
8.4 SURVIVAL. In addition to the specific survival provisions set forth elsewhere in this Agreement, any provision which by its nature should survive termination or expiration of this Agreement shall so survive, including without limitation all payment obligations, confidentiality obligations, intellectual property rights and licenses, indemnification obligations, and dispute resolution procedures.
9. DISPUTE RESOLUTION AND GOVERNING LAW
9.1 MANDATORY ARBITRATION. Any controversy, claim or dispute arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (collectively, "Disputes"), shall be determined by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, modified as set forth herein. The arbitration shall be conducted by a panel of three (3) arbitrators, with each Party selecting one arbitrator within thirty (30) days after initiation of the arbitration and the two selected arbitrators selecting the third arbitrator who shall serve as the presiding arbitrator within thirty (30) days thereafter.
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