This Master Services Agreement is entered into on the subscriber has signed up for the services by and between Zeacloud Services Pvt. Ltd., a company incorporated under the Companies Act, 2013 and having its registered office at #03, First Floor, D-41 Sector 59, Noida (UP) 201301, India (hereinafter referred to as "ZeaCloud" which expression shall, unless repugnant to the context, include its successors in business, administrators, liquidators and permitted assignees or legal representatives) and Customer (name and details as entered by the subscriber during the sign-up process) and having its office at the address entered by the customer during the sign-up process (hereinafter referred to as the "Customer" which expression shall, unless repugnant to the context, include its successors in business, administrators, liquidators and permitted assignees or legal representatives).
Defined Terms: Capitalized terms used in this Agreement shall have the meanings assigned to them hereunder or in the relevant clauses of this Agreement
“Affected Party” means the Party claiming the benefit of Force Majeure.
“Agreement” shall mean all this Master Services Agreement and the Service Level Agreement 'SLA' and the Acceptance User Policy 'AUP' collectively.
“AUP” hall mean the Acceptable User Policy attached to this Agreement as Annexure-2 hereto.
“Business Day” hall mean all working days of ZeaCloud except national and or declared Holidays.
“Due Date” shall mean seven calendar days from the date of invoice by ZeaCloud.
“Initial Term” shall mean the agreed period of provision of Service by ZeaCloud and thereby availing of provided service by Customer as mentioned in the Service Order Form from the Service Commencement Date.
“Renewal Term” shall mean rolling periods of mutually agreed period between the parties or the same length as the Initial Term which shall automatically commence without perceptible interruption of the purveyed Service by ZeaCloud, after the expiry of the Initial Term unless notice is given by either Party in the manner described in Clause 20 (Notices) of this Agreement to stop the Services, at least thirty (30) days prior to expiry of Initial Term.
“Service Catalogue”shall contain a list of all or any of the services/facilities viz., backup facility, dedicated firewall facility, hardware monitoring facility, help desk support, server load balancer, network and power uptime, OS management and shared firewall services etc. described in Schedule-A to the SLA.
“Service Commencement Date”shall mean the date of acceptance by ZeaCloud of the first purchase order issued by Customer under this Agreement.
“Credits” shall mean the entitlement of the extension of services to the customer
“Service Credits” shall mean the credits which the Customer would be entitled to receive, on account of failure of the ZeaCloud to provide Services as per the standards mentioned in the SLA.
"Service Level Agreement (SLA)”shall mean the Service Level Agreement annexed hereto as Annexure-1.
“Service Order Form (SOF)”shall mean the customer accepted proposal document of services by Esconet
“Services” shall mean
services such as the hosting services, provision of servers and other devices and other related services, and
provisioning of virtual servers using hypervisor software out of a cluster of physical servers with/without operating system and other software
colocation of customer owned servers and related devices.
facilities detailed in the Service Catalogue, and
Supplemental Services, in all situations as set out in the written purchase order(s) raised by the Customer on ZeaCloud and accepted by ZeaCloud.
“ZeaCloud” shall mean the public or private cloud services being offered by ZeaCloud including all the “Services” as defined above.
“Supplemental Services”shall mean additional services which are requested for in writing by the Customer other than those already agreed to be provided by ZeaCloud, as set out in the written purchase order(s) raised by the Customer on ZeaCloud and accepted by ZeaCloud.
“Territory”means the geographical territory within union of India.
“Project Manager”shall mean the authorized representative or nominee of each party involved and or responsible of successful performance of the obligations under this agreement.
Interpretation
The headings used in this Agreement are for convenience only and shall not in any manner and or way define, confine or limit the scope of this Agreement.
In this Agreement, where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase shall have harmoniously contextual meaning.
The Parties agree that this Agreement shall be read conjunctionally with the purchase order(s) for Services issued by the Customer and accepted by ZeaCloud, and together they shall constitute the terms and conditions on which the Services shall be provided by ZeaCloud to the Customer.
Customer shall raise service orders on ZeaCloud for provision of Services. Subject to Clause 3.3, ZeaCloud agrees to provide Services, as set out in the purchase orders issued by Customer, from the Service Commencement Date until the end of the Initial Term, in accordance with the terms of this Agreement.
ZeaCloud may also provide Supplemental Services as and when requested for by the Customer and accepted by ZeaCloud. Consideration for such Supplemental Services shall be mutually agreed between the Parties in advance.
ZeaCloud shall have the right to reject the service order(s) on occurrence of any one of the conditions hereinafter (a) that is/are not in accordance with this Agreement, or (b) that is/are issued for services / facilities not covered in the Service Catalogue or (c) that contain terms and conditions or prices that are contrary to the understanding of the Parties or (d) at its sole discretion.
If Customer makes requests for any change whatsoever in the Services, and such change results in increased cost of any nature to ZeaCloud or will require additional time for performance of ZeaCloud’s obligations, or if ZeaCloud is otherwise adversely affected by such change, the schedule, warranty, price and other terms and conditions of the purchase order and Agreement may be equitably amended by mutual agreement of the Parties as detailed in clause 4.3. In no event shall ZeaCloud be obligated to proceed with any change unless the foregoing amendments have been agreed upon in writing by the Parties.
Notwithstanding anything contained in this Agreement, at any time during the performance of this contract in the event of material changes with prior consent of Customer, ZeaCloud reserves the right to make changes in design, construction, arrangement and provision of Services; provided such changes do not result in any increase in the price or time for performance or alter any performance guarantees or warranty obligations set forth herein. Customer shall fully cooperate and not unreasonably withhold its consent in the event of said material changes.
Change Request ProcedureThe following process shall be followed in the event of a change in Scope of this document is required and or desired:
Change Initiation A change is initiated by a Request for Change (RFC) initiated by the Customer and informed to ZeaCloud in writing.
ZeaCloud Response ZeaCloud, shall within fourteen (14) days of receiving the RFC, provide an estimation of the time and effort required in analyzing the RFC. following receipt of the written approval of the estimate and agreement to pay the cost, if any, ZeaCloud shall within thirty (30) days or the time specified in the estimate, perform the analysis and effect the change.
Customer Approval Customer approval is required for the assessment of Change Impact submitted by ZeaCloud. When the RFC requires a change in the cost or SLA or when a change is required in the Agreement successfully executed between Customer and ZeaCloud, the change must be expressly approved by the Customer authorized representative in writing. Once approved by Customer, the RFC is added to the Agreement. If the RFC is not approved by the appropriate authority, the ZeaCloud will take no action on the same.
Temporary Suspension of Services Without Prior Notice:Whereas ZeaCloud shall by all means ensure perpetuity and continuity of services by the Customer however under unforeseeably contingent circumstances, beyond the realm, of ZeaCloud, Customer agrees and accepts that ZeaCloud shall be entitled to suspend Services without any prior notice, inter alia including but not limited to any of the following circumstances:
The ZeaCloud datacenter being affected by viruses/malware;
“Network flooding” or “Distributed Denial of Services” attacks at ZeaCloud’s datacenter or work premises;
Hardware fault at ZeaCloud’s datacente;
The Services being used by the Customer in violation of the terms and conditions mentioned in the AUP or this Agreement;
To protect the servers maintained by ZeaCloud in the event of a threat of breakdown or where there is a valid reason to believe that not suspending the Services would cause loss to the other customers of ZeaCloud;
Earthquake, Fire, natural and manmade disaster or any act of God under vis major.
In cases where suspension is required by law; and and
In such other circumstances as ZeaCloud may reasonably determine and appropriately act upon.
ZeaCloud shall inform the Customer, as soon as possible, the reason of such suspension.
Subject to Clause 6.1 above,Customer agrees that the Services may be suspended by giving at least Seven (7) days prior notice for Customer to remedy a situation under circumstances such as the following:
ZeaCloud has reason to believe that Services are being used by the Customer in violation of the terms and conditions mentioned in the Agreement including the AUP;
ZeaCloud believes that the Services provided by ZeaCloud to Customer are being used by unauthorized persons without the consent of ZeaCloud;
In situations where there is no co-operation from Customer during investigation of suspected violation of the Agreement; and and
In such other circumstances as ZeaCloud may reasonably determine and deem fit in larger interest to act upon.
Without prejudice to ZeaCloud’s rights of termination under Clause 14.2, if the Customer fails to fulfill its payment obligations, ZeaCloud may at its discretion (i) suspend performance of Services, or (ii) continue performance of Services if ZeaCloud deems such continuance to be appropriate. Notwithstanding the foregoing, in the event of default in payment obligations by the Customer, the Customer shall not be entitled to claim Service Level Credits as set out in the SLA during such period of default. In the event of suspension of the Service for the reasons as specified in this clause, the Services shall be reactivated only upon payment of pre-estimate of liquidated damage of Rs. 5000 by the Customer to ZeaCloud.
In the event suspension of Services is required (a) other than as provided in Clauses 6.1, 6.2 and 6.3 above, and (b) as a result of ZeaCloud being unable to provide Services due to reasons not attributable to Customer, Customer shall be entitled to Service Level Credits as set out in the SLA. However, in the event of suspension of Services for the reasons as provided in Clauses 6.1, 6.2 and 6.3 above, Customer shall not be entitled to any Service Level Credits as set out in the SLA.
Customer agrees and acknowledges that in the event of suspension of Services for the reasons as specified in Clauses 6.1, 6.2 and 6.3 mentioned herein above, the Customer shall be responsibly liable for payment of all fees and charges for the Services incurred throughout the suspension period. Customer understands that ZeaCloud’s aforesaid right to suspend is in addition to its right to terminate under Clause 14 of this Agreement.
In the event suspension of Services is for the reasons specified in Clause 6.3, ZeaCloud does not guarantee and shall not be responsible/liable for availability of the data and files of the Customer after such suspension. ZeaCloud shall not be liable for any loss of business, data, content or files of the Customer upon such suspension.
Maintenance of Security
Customer shall take all reasonable measures to ensure that the information transmitted to or from the servers of ZeaCloud with respect to the Services required by the Customer is secure. Customer shall duly authorize its employees and all third parties required to have any access to such servers. Customer shall require each person having access to such services to apply/ follow all reasonable security and safety measures. ZeaCloud shall not be liable for any action taken by (i) such authorized person on the assets deployed for the Customer and (ii) individuals who were not authorized to have access to the servers and the Services but who were able to gain access owing to Customer’s fault/negligence (including disclosing of the usernames, passwords or accounts details and other security breaches by Customer as specified in Clause 10 below). Customer shall be solely responsible for the activities that occur under the Customer’s usernames, passwords or accounts or as a result of Customer’s or its authorized person’s access to the Services. Customer agrees to fully indemnify and hold harmless ZeaCloud for any claims or actions if any, arising out of the breach of this provision by the Customer.
Customer shall not use or permit use of the Services, inter alia including by uploading, emailing, posting, publishing or otherwise transmitting any data or content or material, including Customer Data, for any purpose that may (a) harass any person or cause damage or injury to any person or property, (b) involve defamatory, harassing, untrue or obscene materials, (c) violate privacy rights or promote hatred or harm, (d) constitute unsolicited bulk e-mail, spam or junk; (e) constitute an infringement of intellectual property or other proprietary rights of a third party, or (f) violates applicable laws for the time being in force. Without prejudice to the rights of ZeaCloud accrued under this Agreement and future rights, ZeaCloud reserves the right without any liability whatsoever in advising the Customer to take remedial action if any data or content or material violates the foregoing restrictions including the removal or disablement of access to such data or content or material. Customer agrees to fully indemnify and hold harmless ZeaCloud against any claims arising out of a violation of this provision by the Customer.
The accuracy, veracity, legality and validity of the data or contents provided by the Customer and/or its authorized person and transmitted to or from the servers of ZeaCloud, by virtue of being hosted on ZeaCloud servers and in the database of ZeaCloud shall be the exclusive responsibility of the Customer. The Customer acknowledges that ZeaCloud is solely hosting data and/or information on the Customer’s and/or its authorized representative’s instructions, and any action on such instructions and the result thereof shall be the sole liability of the Customer. ZeaCloud shall not be liable for (i) any false and/or inaccurate and/or illegal data transmitted to or from the servers of ZeaCloud or by virtue of being hosted on ZeaCloud servers, and (ii) any outcome and/or result of such processing, transmitting to or from the servers of ZeaCloud, by virtue of being hosted on ZeaCloud servers and in the database of ZeaCloud.
Compliance with law Customer shall ensure that it has taken all necessary and applicable permissions, approvals, licenses from concerned authority(ies) as applicable within or outside the Territory for availing the Services to be provided by ZeaCloud. Customer shall at all times comply with all applicable laws.
Customer shall utilize the Services in accordance with the ‘AUP’. The existing ‘AUP’ is annexed to this Agreement as Annexure-2. ZeaCloud shall be entitled to modify the ‘AUP’ from time to time and such amended ‘AUP’, shall be made available on the website of ZeaCloud, applicable in relation to provision of the Services by ZeaCloud to Custome.
It has the legal right and authority to enter into this Agreement and is not barred by any agency or authority in or outside the Territory to enter into this Agreement.
All the information and disclosures made in respect to this Agreement are true and accurate.
It has taken all necessary authorizations and approvals for the purpose of execution of this Agreement.
Customer shall not authorize any third person to have access to the Services unless itis approved in writing by ZeaCloud.
It owns and has the right, title, ownership and interest in the contents, materials and the data (including the Customer Data) which runs on the Services or causes to interface with the Services or which is uploaded for the Services or posted or submitted or otherwise used during availing of the Services by the Customer
It has legal right, authority and authorization to enter into the agreement and to provide the Services as required by the Customer.
Services provided by ZeaCloud are not in violation of any law or regulation(s) in force.
All the information and disclosures made in respect to this Agreement are true and accurate.
It has taken all necessary authorizations and approvals for the purpose of execution of this Agreement.
It shall take all reasonable measures to ensure that information transfer (within ZeaCloud’s area of influence and Domain) to and from Customer’s materials is secure and it shall not use, analyze or access Customer data traffic or any other data except for the limited purposes necessary for undertaking its contractual obligations as set out herein.
It shall not derive any end user identifiable information from the Customer’s services / Customer’s data flow.
ZeaCloud fails to provide the Services as agreed; or
ZeaCloud fails to comply with any other terms of this Agreement other than provision of Services, and fails to cure, remedy the defect in the Services or its non- compliance with any other terms of this Agreement, within a period of thirty (30) days from the date of written notice issued by the Customer asking it to cure such defect or non-compliance.
Any payments to ZeaCloud payable by Customer have not been received by ZeaCloud within seven (7) days of the Due Date; or or
when the Customer fails to comply with the terms of this Agreement and fails to cure such non-compliance within a period of seven (7) days from the date of written notice issued by ZeaCloud asking it to cure such non-compliance.
Termination for convenienceSubject to Clause 5.1 herein above, Customer may terminate this Agreement for its convenience without providing any reasons by giving the other at least ninety (90) days prior or advance written notice. ZeaCloud is also reciprocally entitled to terminate the Agreement for its convenience without providing any reasons by giving the Customer at least ninety (90) days prior or advance written notice
ZeaCloud shall immediately cease providing the Service(s) to the Customer;
any and all payment obligations of Customer under this Agreement for Service(s), in proportion to the Services rendered till the effective date of termination, notwithstanding to any previously agreed credit period between the parties shall immediately become due;
within three (3) days of termination of this Agreement, each Party shall be under an obligation to return all Confidential Information of the other Party in its possession without trustfully retaining any copies of such Confidential Information except as required in compliance with any applicable legal or accounting, record keeping requirement.
Customer shall remove all its equipment and materials from ZeaCloud’s premises within ten (10) days of the effective date of termination. Unless ZeaCloud agrees otherwise in writing, failure to remove Customer’s equipment and materials, by the Customer within ten (10) days from the effective date of termination, shall constitute abandonment of Customer’s equipment and material and it is well understood that Customer shall lose all rights whatsoever in respect thereof. ZeaCloud shall be entitled to pursue available legal remedies, including, without limitation and at Customer’s risk and expense: (i) immediately removing Customer’s equipment and material and storing it at Customer’s expense at an on-site or off-site location; (ii) shipping it to Customer; or (iii) upon thirty (30) days’ prior written notice to Customer, liquidating it, and retaining/appropriating to itself the proceeds thereof.
In the event Customer receives an invoice, and is of an opinion that there is a dispute in the same, the Customer is required to notify ZeaCloud in writing within seven (7) calendar days of its receipt, and make payments for the undisputed amount on or before the Due Date.
In case the invoices are undisputed, and there are any delays in its payment, the Customer is liable to pay compensatory interest at a rate equivalent to eighteen percent (18%) per annum on the unpaid amount from the date that the amount becomes due for payment till the date of receipt of payment by ZeaCloud in its account. Further, ZeaCloud (if applicable) shall be entitled to an extension of time for its performance under this Agreement equal to the period of Customer’s non- fulfillment, whether or not ZeaCloud elects to suspend performance.
In case the invoices are undisputed, and are not paid by the Due Date, ZeaCloud reserves its right to rightfully approach National Company Law Tribunal (“NCLT”)/ Debt Recovery Tribunal (“DRT”) for recovery, or any other court of law as it deems fit, or follow the Dispute Resolution procedure prescribed herein.
The Customer shall be responsible to remit all taxes to the concerned appropriate authorities including any cess imposed, surcharge, fine, penalty, interest applicable to ZeaCloud’s fees for Services and/ or in connection with the transactions to be undertaken under this Agreement.
ZeaCloud shall fully co-operate with Customer by furnishing all information on timely basis as may be required by Customer from ZeaCloud, including but not limited to confirmation of booking/accrual of income.
The Customer shall be required to provide the GST details as required under the Goods and Services Tax Act, 2016, along with the Purchase Order. ZeaCloud shall raise tax invoices based on the GST details made available in the Purchase Order. The Customer alone shall bear the consequences, including any loss of input credit, penalties or any other charges, of failure to provide requisite GST details or of any inaccuracy therein.
All communications by Customer with respect to this Agreement should be sent to the sales department of ZeaCloud via electronic mail/fax/registered post/courier at the address below or email address as shown on the website: site:
ZeaCloud Services Pvt Ltd.
Attn: Director
Email: admin@zeacloud.com
All communications by ZeaCloud with respect to this Agreement should be sent to the Customer via electronic-mail/registered-post/courier at the address or email address and details as entered by the subscriber during the sign-up process, as per records with ZeaCloud:
Full Legal Name of Customer:
Full Address of Customer:
Customer Authorized Contact Person:
Email ID of the Authorized Contact Person:
A Party to this Agreement shall notify the other Party of any changes to the address or any of the other details as specified in this Clause 20.2. The Customer acknowledges and understands that the Services provided by ZeaCloud and availed by the Customer is of such a nature that requires urgent and immediate communication between the Parties. In the event the Customer fails to notify any change of its address or any of its other details as specified in this Clause 20, the same shall be considered a material breach of this Agreement and shall entitle ZeaCloud to terminate the Agreement without any liability whatsoever.
A Party shall not be liable to the other Party if, and to the extent, that the performance of any of its obligations under this Agreement is persistently prevented, restricted, delayed or interfered with due to circumstances beyond the reasonable control of that Party, including, but not limited to, circumstances such as change in legislation, fire, flood, earthquake, explosion, epidemic, pandemic accident, act of God, war, riot, terrorist activities, strike, lockout and/or act of government (Force Majeure). The Party claiming an event of Force Majeure as aforesaid shall promptly notify within reasonable time the other Party in writing, and provide full particulars of the event of Force Majeure/vis major and the date of first occurrence thereof, as soon as possible after the event and also keep the other Party informed of any further developments. The Party so affected shall use its commercially reasonable efforts to remove the cause of non-performance, and shall, unless otherwise agreed to by the other Party in writing, resume performance hereunder with utmost dispatch when such cause of non-performance is removed.
On the occurrence of Force Majeure/Vis Major the Affected Party shall be excused from performance of its directly affected obligations (save and except payment obligations) to the extent performance of such obligations is affected by Force Majeure/Vis Major.
On the occurrence of Force Majeure/Vis Major either Party may terminate this Agreement by written notice to the other in the event the Force Majeure/Vis Major situation continues for more than thirty (30) days, without any liabilities whatsoever other than those that may have arisen and or accrued before the occurrence of the Force Majeure/Vis Major event.
Each Party acknowledges and agrees that the other Party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property and any hardware provided by such Party in relation to this Agreement.
Neither Party shall remove or misuse or modify any copyright, trade mark or any other proprietary right of the other Party which is known by virtue of this Agreement, in any circumstances.
This Agreement shall be governed by the laws of the Republic of India.
In case of any disagreement and or dispute whatsoever between the Customer and ZeaCloud under this Agreement, the dispute shall be resolved in the manner as outlined here under.
The Customer and ZeaCloud shall make every effort to resolve amicably by direct informal negotiations any disagreement or dispute between them on any matter connected with this Agreement or in regard to the interpretation thereof. If, after thirty (30) days from the commencement of informal negotiations, the Customer and ZeaCloud have not been able to resolve the dispute amicably, such differences and disputes shall be referred, at the option of either Party, to arbitration by a sole arbitrator to be mutually agreed upon and in the event of no consensus between the parties, then the High Court of Delhi shall have sole jurisdiction to appoint an Arbitrator under the provisions of the Arbitration and Conciliation Act (1996) and its amendments/ordinances thereafter (“Act”). Such arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 and its amendments/ordinances thereafter. Upon every or any such reference the costs of and incidental to the reference and award shall be borne equally by the parties. The arbitration shall take place in New Delhi, India unless otherwise mutually agreed by the Parties and shall be conducted in the English language.
24.1 Solicitation
Customer agrees that (a) it will not compete with ZeaCloud in any manner, and (b) it will not solicit any of the employees of ZeaCloud, including those who have directly or indirectly been involved in providing Services to Customer, for employment with the Customer and/or any of its associates, affiliates, group companies or third parties, during the validity of this Agreement and up to twenty four (24) months from the expiry or date of termination of this Agreement.
24.2 Intellectual Property in Services
ZeaCloud is the sole owner of all patents, copyrights, trademarks, industrial designs, trade names and trade secrets and all other intellectual property rights in the Services and the Customer agrees that nothing contained herein shall be deemed to result in any transfer of such intellectual property to the Customer.
24.3 Modification of Services and Amendment
(a) Customer agrees that any change in the Services other than as accepted by both the Parties under this Agreement, shall be effected only after a written confirmation is received from ZeaCloud on the request of Customer.
(b) Any modifications accepted by Any modifications accepted by ZeaCloud may attract different fees and amendment of certain terms of this Agreement. On acceptance of such terms and fees in writing the modifications requested by the Customer shall be brought into force.
(c) This Agreement may be amended only by the written agreement of both Parties.
24.4 There shall be no third-party beneficiaries to this Agreement.
24.5 Relationship between Parties, Subcontractors
(a) The relationship of ZeaCloud and Customer created by this Agreement is that of independent contractors and no partnership is created. Nothing contained in this Agreement shall be construed to give either Party the power to direct and control the day-to-day activities of the other.
(b) Neither Party shall be considered an agent of the other Party and neither Party may represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive and allows both Parties to conduct its business in a manner that is not against the terms and spirit of this Agreement.
24.6 Micro, Small and Medium Enterprises Development Act, 2006
The Customer shall notify ZeaCloud, in writing within thirty (30) days, if the Customer is qualified or gets qualified during the term of this Agreement as a micro, small or medium enterprise as defined under the Micro, Small and Medium Enterprises Development Act, 2006 (“MSME Act”), and agrees to waive its rights under the MSME Act. In the event it fails to comply with the aforementioned requirement, ZeaCloud shall assume that the Customer does not fall under the ambit of the MSME Act to the extent provided above. The Customer shall defend, indemnify and hold ZeaCloud harmless against any claims, costs and legal liability incurred by Customer as a result of ZeaCloud’s failure to notify Customer or comply with the requirements of this provision.
24.7 Stamp Duty
The Parties agree that the stamp duty as applicable and payable on the Agreement shall be borne by Zeacloud.
24.8 Severability
The Parties acknowledge that if any provision of this Agreement is unenforceable in any respect, such unenforceability shall not affect any other provisions of this Agreement and this Agreement shall be construed as if such unenforceable provision had never been contained herein.
24.9 Non-Disparagement.
The Customer hereby understands, acknowledges and agrees that it will not and will ensure that its representatives, employees, agents, contractors, associates, group companies etc. do not in any form or manner carry out disparagement, negative characterization, defamation and/or any adverse public criticism of the Services, or question the business, integrity, veracity or personal or professional reputation of ZeaCloud.
24.10 Agreement
All annexures to this Agreement are hereby incorporated in this Agreement. The Agreement is the complete and exclusive agreement between the Parties regarding its subject matter, supersedes, and replaces any prior agreement, understanding or communication, written or oral. In the event of any conflict or inconsistency between the provisions of the Master Services Agreement, SLA, AUP, Purchase Order, or any other agreement entered between the Parties, the provisions of the Master Services Agreement shall prevail.
24.11 Cumulative-Remedy
No right or remedy made available to Customer under or pursuant to this Agreement is intended to be exclusive of any other right or remedy provided to Customer hereunder or available under Applicable Law, or in equity or under contract or otherwise.
24.12 Waiver
No failure or delay on the part of either Party in the exercise of any right, power, privilege or remedy provided under this Agreement shall operate as a waiver of such right, power, privilege or remedy or as a waiver of any preceding or succeeding breach by the other Party to this Agreement nor shall any single or partial exercise of any right, power, privilege or remedy preclude any other or further exercise of such or any other right, power, privilege or remedy provided in this Agreement (all of which are several and cumulative and are not exclusive of each other) or of any other rights or remedies otherwise available to a Party at law or in equity. Waiver, if any, has to be in writing by authorized personnel of the respective Party.
24.13 Survivability
In addition to any provisions of this Agreement that by their terms or nature are intended to survive termination of this Agreement, shall survive the termination of this Agreement, and the parties shall remain bound thereby. More specifically, it is mutually agreed between the parties that all provisions under this Agreement regarding indemnification, liability and limits thereon, and confidentiality and or protections of proprietary rights and trade secrets shall survive the termination of this Agreement.