This Master Services Agreement (“Agreement”) is entered into by and between AllTimeIT Solutions Private Limited, a private limited company registered under the Companies Act, 1956 having its registered office at 518/519, Midas, Sahar Plaza, Andheri Kurla Road, Andheri East Mumbai, Maharashtra, India, Pin -400059 (hereinafter referred to as “ALLTIMEIT”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its successors an permitted assigns) and The Customer and ALLTIMEIT are collectively referred to as the “Parties” and each individually as a “Party”.
This Agreement governs Customer’s use of and access to the Cloud Services (defined below).
This Agreement is effective upon Customer’s (a) acceptance of these terms and conditions pursuant to an online order process; or (b) accessing or using the Cloud Services.
Customer agrees that the purchase of the Cloud Services is solely for the internal business use, which may include providing Customer’s services to its customer for that customer’s internal business use. It is hereby clarified that Cloud Services purchased under this Agreement are not for resale purposes.
Unless the context otherwise requires or unless otherwise defined in this Agreement, the following capitalized words and expressions shall have the meanings set forth below:
- “Activation Instructions” shall mean any instructions, software license keys or passwords that ALLTIMEIT may provide Customer in respect of specific Cloud Services to enable Customer to activate or access the Cloud Services.
- “Cloud Services” shall mean IT services delivered with combination of hardware, services, software and other information technology related elements hosted online/offline through IT infrastructure controlled/owned by ALLTIMEIT/it’s partners, and the exact scope of such services shall be mutually decided between the Parties under a separate document (service level agreement, or SLA) setting out the same in greater detail, including the commercial payments required to be made by the Customer for such Services etc.
- “Confidential Information” shall mean (i) for Customer, information provided to ALLTIMEIT for placing order; (ii) for ALLTIMEIT, pricing and other Cloud Services3. terms, Activation Instructions, know-how, product development plans, Intellectual Property Rights, designs, or other proprietary information or technology provided to Customer (including software); and (iii) for both ALLTIMEIT and Customer, any information designated as Confidential. Information developed without reference to another party’s Confidential Information, or that is a part of or enters the public domain or otherwise is made available to a party other than through a violation of confidentiality, will not be Confidential Information.
- “efficloud” is a wholly owned and trademarked logo / brand of services delivered by ALLTIMEIT. effiCloud services would mean any cloud based / managed services delivered by effiCloud under various sub brands like effiCompute, effiApp, effiProtect etc.
- “Intellectual Property” shall mean all patents, applications for patents, copyrights, author’s rights, rights of publicity, mask works, Trade Secrets, know-how, contract rights, licensing rights and/or any other intellectual or proprietary rights recognized by any jurisdiction, whether now existing or hereafter arising. Intellectual Property also includes corporate names, trade names, trademarks, service marks or other proprietary designations.
- “Trade Secret” shall mean any information not commonly known or available to the public, which (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy
THE PARTIES HEREBY AGREE AS FOLLOWS:
SCOPE OF SERVICES
Subject to the terms and conditions of this Agreement, ALLTIMEIT agrees to provide Cloud Services to Customer and the Customer agrees to subscribe for the Cloud Services provided by the ALLTIMEIT.
The Cloud Services shall be delivered in accordance to the SLA defined for individual services.
- With respect to certain Cloud Services, after receipt and acceptance of an order by ALLTIMEIT, Customer will receive Activation Instructions. The Customer agrees that the Service Order Form (“SO Form”) executed by both the parties shall be treated as the Customer Purchase Order unless the two parties have mutually agreed in writing to accept any alternative document like Purchase Order, Work Order, Scope of Work, etc. for purchase of services.
- The Activation Instructions for Cloud Services delivered by AllTimeIT will be transmitted electronically to the customer.
- Service start date for individual services will be as per the date mentioned in the SO form. Customer shall be deemed to have accepted the provisioning of the services on the date of communication of welcome email, unless the customer notifies AllTimeIT in writing, the specific non-conformity in provisioning of the Services, within three (3) business days of receiving such notice. In such a case, AllTimeIT shall promptly rectify the nonconformity and the Service Commencement Notice confirming the rectification and date would be delivered to the Customer. Services would be deemed to have commenced from the date mentioned in the re-sent notice.
- AllTimeIT may deliver Supplementary Services not included in the scope of the SO Form at the written request of the Customer. Such Services shall attract additional commercials mutually acceptable to both the parties in written on e-mail. Change Order Form will be sent to customer for further communication.
- Customer is responsible for providing, maintaining and monitoring one dedicated electronic mail address for the receipt of notices and other communications related to the Cloud Services.
- Subject to this Agreement, the term for Cloud Services begins on the Activation Date and shall extend for the period as may be stated under the SLA entered into between the Parties.
- The Parties further agree that upon the completion of the Term, the Agreement would stand automatically renewed for such further period, and on such terms and conditions as the Parties may mutually agree, unless the Parties (or either of them) wish to terminate the Agreement in accordance with the terms of this Agreement.
- The termination of any Service specified in the SO Form shall not affect the Customer’s obligation to pay for other remaining Service(s)
RESTRICTIONS ON USE OF CLOUD SERVICES
The Cloud Computing Services provided to Customer are non-exclusive, non-transferable , and are for Customer’s internal business use only. Customer’s right to use the Cloud Services is conditional upon the following. Except as expressly provided in the Agreement, Customer shall not
- transfer to any other person any of its rights to use the Cloud Services
- sell, rent or lease the Cloud Services, provided however, that certain ISVs who are Customers shall be allowed, with prior written approval of ALLTIMEIT, to offer services to their end customers which may include ALLTIMEIT’s hardware
- make the Cloud Services available to anyone for purposes other than for its internal business purposes
- create any derivative works based upon the Cloud Services or documentation of the Cloud Services
- access the Cloud Services in order to build a competitive solution or to assist someone else to build a competitive solution
- benchmark the Cloud Services in order to test its scalability and performance.
SERVICE LEVEL GUARENTEE
Service Level Guarantees are as per proposal or service SLA document.
Except for information created or otherwise owned by Customer or licensed by Customer from third-parties, including all information provided by Customer to ALLTIMEIT through the Cloud Services or for use in connection with the Cloud Services, all right, title, and interest in the Intellectual Property embodied in the Cloud Services, including the know-how and methods by which the Cloud Services is provided and the processes that make up the Cloud Services, will belong solely and exclusively to ALLTIMEIT or ALLTIMEIT’s licensors, and the Customer will have no rights in any of the above, except as expressly granted in this Agreement. The services and the software used to provide the Cloud Services embody valuable Trade Secrets and proprietary rights of ALLTIMEIT and/or its licensors and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Any Intellectual Property developed by ALLTIMEIT during the performance of the Cloud Services will belong solely and exclusively to ALLTIMEIT.
- The fees for the Cloud Services and the manner in which payment shall be made by the Customer will be mutually agreed between the Parties at the time of subscription, and as stated under the SLA/ Proposal
- One Time Installation charges & First recurring payments need to be paid along with the PO.
- Billing will commence from the date of activation of services.
- Fixed recurring charges for subsequent billing will be paid within 20 days from the date of Invoice
- Usage based variable charges, shall be billed monthly in arrears, have to be paid within 15 days from the date of Invoice.
- Any outstanding amounts payable from the Customer to ALLTIMEIT, which are delayed beyond the Due Date will attract interest at the rate of 24 % per annum.
- Prices of Goods and / or Services are exclusive of all taxes, duties, octroi, levies, imposts, fees or other charges whatsoever, all of which shall be paid by the Customer.
- In the event of any change in applicable law or regulation that materially impacts the cost of delivery of Service, including and without limitation, escalation in power cost by the utility supplier, ALLTIMEIT reserves the right to correspondingly increase its charges under this Agreement after giving the Customer thirty (30) days’ notice thereof.
- In the event the Customer fails to pay dues for Services within 45 days of the payment becoming due, AllTimeIT reserves the right to suspend, discontinue and/or terminate the Services and take back AllTimeIT supplied equipment, if any, by giving fifteen (15) days’ notice to the Customer. Any charging of interest or change in the mode of payment in terms hereof, shall not limit or hamper AllTimeIT’s right to suspend, discontinue and / or terminate the Services
- Increase in Third party licensing prices or any other Input prices, will be resulted in to increase in end user prices.
REPRESENTATION AND WARRANTIES
The Parties represent and warrant to each other that
- it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and has been fully authorized by all requisite corporate actions to do so
- it holds and shall continue to hold all necessary statutory and regulatory permissions, approvals and permits for the running and operation of its establishment for the conduct of its business, more particularly for providing and receiving the Cloud Services
- it shall comply at all times, with all laws, industry codes, applicable standards or other regulations or directions issued under the law
- the execution and performance of this Agreement does not and shall not violate any provision of any existing arrangement, law, rule, regulation, any order or judicial pronouncement
- In the event any of breach of the foregoing warranties, in addition to any other remedies available in law or equity, including termination of Services if warranted, ALLTIMEIT shall have the right in its sole discretion, to suspend immediately, any related Services if it is deemed necessary by ALLTIMEIT to prevent any harm to its business. ALLTIMEIT will, in such an event, provide the Customer notice and opportunity to cure the breach if practicable and promptly restore Services once the breach is cured.
USE OF SOFTWARE
To the extent software is provided as a part of the Cloud Services (“Software”), such Software is provided subject to the following terms:
License: For the applicable Term, and subject to the restrictions below, ALLTIMEIT grants Customer a non-exclusive, limited, revocable license to access and use the applicable Software as permitted by this Agreement.
Restrictions: Unless otherwise expressly permitted in this Agreement, without ALLTIMEIT’s prior written consent, Customer will not:
- permit any third-party to use or copy the Software, unless such third-party is an authorized end user of the Customer and is permitted under this Agreement;
- modify, translate, alter, adapt, publish, transmit, remove, reverse engineer, decompile, disassemble, reproduce, distribute, display, create derivative works, compilations or collective works based on or otherwise exploit any of the Software;
- merge the Software with any other software;
- sell, sublicense, rent, lease, grant a security interest in or otherwise transfer rights to the Software;
- benchmark the performance of the Software or Cloud Services.
- Customer agrees that in the event that the customer deploys his own software and materials on the Cloud, he will be solely and exclusively responsible for meeting all legal obligations associated with the same, and ALLTIMEIT shall at no point in time have any liability in respect of the same, whether financial or otherwise. The Customer shall fully and completely indemnify ALLTIMEIT for any liability, damages, costs and claims that may be incurred by ALLTIMEIT in relation to the same.
- Customer acknowledges and agrees that it is liable for any breach of this Agreement by an end user of the Cloud Services.
- Rights Reserved: THE SOFTWARE IS LICENSED, NOT SOLD. Except for the license expressly granted herein, ALLTIMEIT, on behalf of itself and its licensors and suppliers, retains all right, title and interest in and to the Software and in all related Intellectual Property and its derivative works, including registrations, applications, renewals and4. extensions of such rights (the "Works"). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereinafter developed and any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, display, re-publication or performance of the Works, except as specifically permitted herein, is strictly prohibited. ALLTIMEIT, on behalf of itself and its licensors and suppliers, retains all rights not expressly granted herein.
- Customer will comply with the end user licensing of software OEM for all software delivered by AllTimeIT on usage based model.
Confidential Information may not be disclosed except to affiliates, employees, agents and subcontractors who “need-to-know” it and who have agreed in writing to treat the Confidential Information under terms at least as restrictive as those in this Agreement. Each Party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such Party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient will provide reasonable advance notice to other party before making the disclosure.
Compliance with laws
- The Customer shall ensure compliance of applicable laws and regulations including without limitation, Indian Telegraph Act, 1885 and Indian Telegraph Rules; Information Technology Act, 2000 and amendments and replacements made there under from time to time; regulations, notifications and guidelines of the Department of Telecommunications and Telecom Regulatory Authority of India and Department of Information Technology, as issued from time to time and such other laws and regulations as may be applicable to the Customer.
- The Customer shall ensure non-violation of any law during transmission, storage or presentation of any data, material or information including without limitation, copyright material or material protected by trade secrets and other statutes; transmission of unsolicited, threatening, obscene or other objectionable material; phishing activity and links to sites related to sex, pornography or such content.
- The Customer acknowledges and agrees that AllTimeIT exercises no control whatsoever over the content or the information passing through the Customer’s site(s) and the Customer is solely responsible for the compliance of applicable laws and regulations in terms of information and content that the Customer and its users transmit and receive.
- The Customer expressly agrees to comply with any directions and guidelines issued by any authority or court of competent jurisdiction relating to services contracted with AllTimeIT and the violation of any applicable laws and regulation in relation thereto.
- The Customer indemnifies and holds AllTimeIT harmless against all charges, penalties, legal and associated costs and charges incurred by and / or imposed upon AllTimeIT due any breach / violation of any applicable laws and regulations by the Customer.
- The Customer agrees to comply at all times with the AllTimeIT Rules and Regulations as in effect from time to time. The said Rules and Regulations are available and will be made available to the Customer on demand.
TERMINATION AND CONSEQUENCES OF TERMINATION
- Either Party may terminate this Agreement if the other Party commits a breach of this Agreement and such breach is not cured within thirty (30) days of receipt of written notice describing the nature of the breach.
- Notwithstanding the foregoing, ALLTIMEIT may terminate this Agreement upon written notice to Customer if (i) Customer is delinquent on payment obligations beyond the Due Date; (ii) a change in our relationship with a third-party software or technology provider has had a material adverse effect on our ability to provide the Cloud Services; (iv) Customer declaring bankruptcy or adjudicated bankrupt or a receiver or trustee is appointed for you or substantially all of the Customer’s assets.
- Where AllTimeIT negotiates the service fees with the customer at the Customer’s instance after the initial Service term and renews the contract for a further period as agreed by the parties hereto, then such period of renewed Service Term shall be deemed to be the initial Service term for the Customer and accordingly the Customer shall be bound by the above mentioned provisions for termination.
- Before expiration of the Term, either Party may terminate this Agreement by providing thirty (30) days written notice to the other Party.
- The Customer agrees to send a written communication to ALLTIMEIT for termination, upgrade, modification of any service(s) contracted to ALLTIMEIT at firstname.lastname@example.org.
- The Customer understands and agrees that dedicated hardware and / or software [including but not limited to servers, routers, switches, firewalls, load balancers and storage devices (“Dedicated ALLTIMEIT Equipment”)], if any, provided to the Customer by ALLTIMEIT for Services are tailored to the Customer’s individual or specific need by ALLTIMEIT and any early termination or downward revision of Services related to such Dedicated ALLTIMEIT Equipment by the Customer would be detrimental to ALLTIMEIT from commercials (including pricing) perspective. So if in the event the Customer contracts for Dedicated ALLTIMEIT Equipment and terminates, in part or full, or scales downwards any of the Services related thereto or this Agreement, without cause i.e. for convenience before the end of the Service6. Term then the Customer agrees and shall pay to ALLTIMEIT the recurring charges for the balance contract period in terms of this Agreement towards early termination charges for the contracted Dedicated ALLTIMEIT Equipment. It is understood by the Customer that in no event shall the title to the Dedicated ALLTIMEIT Equipment shall pass on to the Customer.
- Upon the effective date of termination ALLTIMEIT shall immediately cease to provide the Services and any and all payment obligations of the Customer for Services under this Agreement provided through to the date of termination will immediately become due. Within ten (10) days of such termination or conclusion of term, the Customer shall make full and final settlement of all outstanding dues to ALLTIMEIT.
- On the other part, In the event of such termination of the Agreement, any amounts (which were paid as advance or credit by the Customer to ALLTIMEIT) which are required to be refunded (for the remainder of the unfulfilled term of the Agreement, and as mutually agreed between the Parties) shall be refunded to the Customer within Thirty (30) days of such termination
- Within ten (10) days of such termination, each party shall return Confidential Information of the other in its possession and shall not make or retain copies except as may be required to comply with any legal or accounting record.
Each party to the Agreement will defend and hold the other harmless from claims, loss, damage, expense (including reasonable attorney’s fees and court costs) or liability resulting from the claim, suit, action or proceeding brought by any third party against the other or its affiliates arising from
- The infringement or misappropriation of any intellectual property right relating to the delivery and use of Service(s) (excluding contributory infringement caused by the other party).
- Personal injury caused by the negligence or the wilful misconduct of the other party.
Customer hereby indemnifies, hold harmless and undertakes to defend ALLTIMEIT, its affiliates and their respective employees, officers and directors against any claim with regard to:
- breach of the terms and conditions of this Agreement, or failure to comply with its regulatory/legal requirements and compliances;
- taxes/charges/cess/levies (and interest or penalties assessed thereon) against ALLTIMEIT that are obligations of Customer pursuant to this Agreement;
- any damages for bodily injury (including death) and damage to real property and tangible personal property caused by Customer;
- any claim or action by or on behalf of Customer’s personnel;
- misconduct, negligence or wrongful acts of omission and commission of employees of Customer and/or its subcontractor.
The indemnification obligations of clause P-1 are subject to:
- Prompt receipt of notice by the indemnifying party.
- Control of the defence of the claim by the indemnifying party.
- Assistance by the indemnified party in the defence at the expense of the indemnifying party.
DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITIES
- THE CLOUD SERVICES IS PROVIDED ‘AS IS’, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, EXCEPT AS OTHERWISE PROVIDED HEREIN EXPRESSLY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ALLTIMEIT WILL CREATE A WARRANTY OR INCREASE THE SCOPE OF THIS WARRANTY, AND USER SHALL NOT RELY ON SUCH INFORMATION OR ADVICE. THE CLOUD SERVICES IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USES WHERE THE FAILURE OF THE CLOUD SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE OF ANY NATURE.
- With respect to the Customer receiving Services, neither ALLTIMEIT nor any of its Directors, officers, employees or partners shall be liable for any damage or destruction of Customer Equipment, tangible material or software or data belonging to, leased or otherwise under the control of the Customer resulting from any cause whatsoever other than gross negligence or wilful misconduct of ALLTIMEIT. The extent of liability as a cause of the gross negligence or wilful misconduct of ALLTIMEIT shall be solely limited to the then replacement cost of the Customer Equipment excluding lost data, software or firmware.
- The liability of ALLTIMEIT for damages arising out of the furnishing of Services including but not limited to use of Services or arising out of failure to furnish Services, representations, errors or other defects, whether caused by acts of omission or commission, shall be limited to the extension of credit allowances due under the applicable Service Level Guarantee. The extension of such credit allowances or refunds shall be the sole remedy for the Customer and the sole liability of ALLTIMEIT
- In no event shall either Party be liable to the other for any indirect, incidental, special, consequential, exemplary or punitive damages including, but not limited to, damages for lost revenue, lost profits, loss of data, technology, equipment or types of damages whatsoever, whether or not caused by any acts of omission or commission and regardless whether such party has been informed of the possibility or the likelihood of such damages.
- Notwithstanding anything contained herein to the contrary, ALLTIMEIT shall not be liable for any direct, indirect, consequential, incidental or exemplary damages including but not limited to loss of revenue or profits, goodwill or data. Under no circumstances will ALLTIMEIT’s liability for direct damages, whether arising out of tort or contract or any other doctrine of law, exceed the provisions mentioned in the Clause Q relating to Limitation of Liability.
- RELATIONSHIP OF PARTIES
This Agreement is being entered into on a Principal to Principal basis and neither party shall be considered to be an agent, partner, joint venture, franchisee and/or employee of the other Party. Neither Party shall enter into any Agreement or arrangement which will bind or attempt to bind the other Party legally or otherwise, without the prior written consent of such other Party, except as otherwise expressly provided herein.
- ASSIGNMENT AND TRANSFER
Customer shall not assign this Agreement or any rights or obligations under this Agreement to a third-party without ALLTIMEIT’s prior written consent. ALLTIMEIT may assign, sell or otherwise transfer its rights and obligations under this Agreement to any third party. ALLTIMEIT may subcontract or delegate in whole or in part this Agreement for the performance of the Cloud Services, provided ALLTIMEIT remains responsible for and remains liable for the delivery of such Service(s). This Agreement shall bind and inure to the benefit of each party’s successors and permitted assigns
Any and all notices, invoices, documents and other information to be given by one of the Parties to the other shall be deemed sufficiently given when forwarded by registered post with acknowledgment due or hand delivery to the other Party at the addresses mentioned above, or by way of email at the email addresses provided by one party to the other under this Agreement. Each part shall notify the other in writing of any changes to such addresses.
- GOVERNING LAW, JURISDICTION AND CONFLICT RESOLUTION
- This Agreement along with the SOF shall be governed by and construed In accordance with the laws of India.
- Any dispute or difference between the parties arising out of or in connection to this Agreement, including but not limited to performance, termination or breach thereof, that cannot be settled first through mutual negotiations by the parties shall be resolved in accordance with the arbitration procedures stipulated under the Arbitration and Conciliation Act, 1996.
- The arbitration proceeding shall be conducted through a sole Arbitrator appointed in accordance with the Arbitration and Conciliation Act, 1996. The proceedings shall be conducted in English language and the place of arbitration shall be Mumbai, India. The award rendered in any arbitration commenced herein under shall be binding on both parties.
- Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgement remedies and claims for the Customer’s failure to pay for Service(s) in accordance with Agreement, may be brought in a court of competent jurisdiction over the parties and the subject matter.
- FORCE MAJEURE
- Except as provided herein no Party shall be liable to the other for any delay in the performance or any non-performance of any of its obligations hereunder (and shall not be liable for any loss or damages caused thereby) where the same is occasioned by any cause whatsoever that is beyond its control including but not limited to an Act of God, war, civil disturbance, rites, sticks, lock-outs, work stoppage or other labour difficulties, requisitioning, governmental or parliamentary restrictions, technical failure, defect in connectivity, loss of interconnectivity due to reasons beyond the Parties’ control, prohibitions or enactment’s of any kind, import or export regulations, exchange control regulations, fire or accident, earthquakes, shipwrecks.
- The Party affected by Force Majeure shall take all necessary steps to mitigate the event of Force Majeure as expeditiously as reasonably possible.
- If ALLTIMEIT is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of continuing Force Majeure event, the customer may cancel the services / terminate the Agreement. Likewise, ALLTIMEIT may terminate the Agreement in the event a continuing force majeure condition impacts the Customer and prevents availing of Service(s) for a period of sixty (60) consecutive days.
- NO LEASE
- The Customer agrees and acknowledges that this Agreement is a “Services Agreement” and is not intended and will not constitute a lease of any real property, or the creation of any real property interest in the Customer Area or the Internal Data Centre from which the Service are rendered. The Customer has no rights as tenant or otherwise under any landlord / tenant laws, regulations or ordinances.
- The Customer acknowledges that it has no rights or claims against the Landlord(s) with whom ALLTIMEIT has entered into any lease, license or other agreement in terms of the said facility; provided however the Customer shall retain its rights of service against ALLTIMEIT for action arising out of the termination of such lease or license.
The Customer grants ALLTIMEIT a limited license to use any Customer’s trade name and trademark for the limited purpose of referring the Customer’s name in ALLTIMEIT’s marketing material and on ALLTIMEIT’s web site.
- NON SOLICITATION
During the term of this agreement and for a period of one (1) year after the termination of this Agreement, both parties agree that they and their affiliates will not, directly or indirectly, solicit or attempt to solicit the employment of each other’s employees.
- SEVERABILITY; WAIVER
In the event any provision of this Agreement be held to be void, invalid or inoperative by any court of competent jurisdiction, the remaining provisions of this Agreement shall not be affected and shall continue in effect and force. The invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.
Either party’s failure to insist upon or enforce any provision of this Agreement, shall not be construed as a waiver of any provision or right, nor will it constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving party. The rights of the parties pursuant to this Agreement shall be deemed cumulative such that the exercise of one shall not preclude the exercise of others.
- ENTIRE UNDERSTANDING
This Agreement constitutes the entire understanding of the parties and replaces any and / or all prior agreements, understandings and offers related to the subject matter hereof, whether oral or in writing, are hereby deemed null and void. In the event of any conflict between the Agreement and the SO Form, the SO Form shall prevail.
The terms of any Purchase Order issued by the Customer, if in conflict with the SO Form, shall be deemed objected by ALLTIMEIT and shall be of no effect or binding on ALLTIMEIT.
Any changes to this agreement shall only be in the form of an addendum signed by authorized representatives of both parties.
THIS AGREEMENT HAS BEEN SIGNED BY THE DULY AUTHORISED REPRESENTATIVES OF THE PARTIES ON THE DATE AND YEAR FIRST HEREIN BEFORE WRITTEN.