Vesta MCA
This Master Service Agreement (hereinafter “MSA”) is made as of the last date of the last signature hereto (hereinafter “Effective Date”) between the entity purchasing Products or Services (as defined below) (hereinafter “Customer”) and Motorola Solutions Connectivity, Inc., a California corporation, with offices at 500 W Monroe Street, Ste 4400. Chicago, IL 60661-3781 (hereinafter “Motorola”).
If you are purchasing Products or Services on behalf of your employer or another entity, you warrant that: (a) you have authority to bind your employer or the applicable entity, as “Customer” to this Agreement; (b) you have read and understand this Agreement; and (c) on behalf of the Customer that you represent, you agree to this Agreement. If you do not have the legal authority to bind your employer or the applicable entity as Customer to this Agreement, please do not complete the purchase of Services or Products from Motorola.
Recitals
WHEREAS, Motorola is a provider of IP selective routing, database services, network services and call handling equipment and services used in the provision of emergency communication; and
WHEREAS, Customer desires to acquire certain services (“Services”) from Motorola;
NOW THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto agree as follows:
Terms and Conditions
1. Scope of MSA. This MSA, together with all exhibits, attachments, Service Order Agreements with all attachments (“SOA”), and applicable Motorola tariff(s) or price lists (“Tariff”), set forth the terms and conditions governing the purchase of Services by Customer.
2. Service Order Agreement (SOA). In connection with a specific project (“Project”) for the purchase of Services, a SOA shall be prepared by Motorola, with the cooperation of Customer. A SOA shall detail the Services purchased, the pricing, and the term of the SOA for such Services. The SOA shall be expressly made pursuant to the terms and conditions of this MSA and shall be signed by both parties.
3. Service Support Plan. Motorola agrees to provide certain support services (“Support Services”) as further described in Exhibit A, attached hereto and incorporated herein, in connection with Customer’s purchase of Services (“Service Support Plan”). The Support Services may be subject to change at Motorola’ sole discretion; provided, however, any changes to the Support Services will not result in a material reduction in the level of services provided to Customer.
4. Order of Precedence in the Event of Conflict. Notwithstanding anything to the contrary in this MSA, in the event of any conflict or inconsistency among the documents associated with this MSA, that conflict shall be resolved pursuant to the following order of precedence: (i) the SOA, (ii) this MSA; (iii) the Service Support Plan, and (iv) the Motorola applicable Tariff at http://www.vestapublicsafety.com/misc/tariffs.php. Motorola may modify its Tariff(s) from time to time, and any modification shall be binding upon Customer as provided in the applicable Tariff. However, if Motorola makes any changes to the applicable Tariff (other than to Taxes or Regulatory Cost Recovery Fees) that affect Customer in a material and adverse manner, Customer may discontinue the affected portion of the Services without liability by providing Motorola with written notice of discontinuance within sixty (60) calendar days of the date of the change, unless within sixty (60) calendar days of receiving Customer’s discontinuance notice, Motorola agrees to remove the material adverse effect on Customer. Customer may enroll to receive email notifications of Tariff changes by sending an email request to Vesta.CustomerInquiry@motorolasolutions.com.
5. Rates and Charges; Taxes and Regulatory Cost Recovery Fees. Customer agrees to pay for the Services in accordance with the schedule of rates and charges as set forth in the applicable SOA. If Customer purchases any Services after the expiration of the Initial Term (as defined below) or Extended Term (as defined below) of this MSA, Customer and Motorola shall negotiate a new MSA and SOA. Except as otherwise provided for in the SOA, Customer shall not be eligible to receive any other additional discounts, promotions and/or credits (tariffed or otherwise). The rates and charges set forth in a SOA shall be listed in the SOA pricing schedule and shall include a listing of the monthly recurring charges and applicable advance payments and/or non-recurring charges. The charges in the SOA do not include the following: (a) charges imposed by a third party other than Motorola (if any); (b) Taxes or Regulatory Cost Recovery Fees (as defined below); and (c) charges related to customer premises equipment or extended wiring to or at Customer premises. Motorola shall give Customer notice of such changes in rates, charges, or fees pursuant to the notice provision set forth in Section 21 herein or by other reasonable means. Motorola may add or adjust rates, charges, and fees in order to recover Taxes or Regulatory Cost Recovery Fees, as defined below. Unless otherwise specified, prices in any SOA do not include any excise, sales, lease, use, property, or other taxes, assessments, duties or governmental impositions including regulatory charges or contribution requirements when Motorola is required to collect such regulatory charges or contributions from Customer (collectively, “Taxes”), or any fees or charges to offset costs Motorola incurs to comply with regulations or participate in regulatory programs, including but not limited to regulatory fees or charges imposed on Motorola by governmental entities or collected from Motorola by third parties, which are not Taxes or charges that government mandates be recovered from Customer but that Motorola is permitted to recover from Customer either in aggregate or as individual line items ("Regulatory Cost Recovery Fees"). Such Taxes and Regulatory Cost Recovery Fees will be paid by Customer, except as exempt by law, unless otherwise specified in an Ordering Document. If Motorola is required to pay any Taxes or permitted to recover any Regulatory Cost Recovery Fees, Customer will be billed by Motorola for such Taxes (including any interest and penalties) or Regulatory Cost Recovery Fees, whether as part of its standard billings or as separately billed and, with respect to the latter, using a "regulatory cost recovery" descriptor or other applicable descriptor, and Customer agrees that it will pay such Taxes and Regulatory Cost Recovery Fees within thirty (30) days after Customer’s receipt of an invoice therefore, unless Customer furnishes Motorola applicable tax-exemption certificates.. Motorola will be solely responsible for reporting Taxes on its income and net worth.
6. Payment. Invoicing and payment shall be made in accordance with the applicable SOA. Motorola shall provide Customer with invoices detailing all amounts due under the applicable SOA. Customer shall pay interest on any amount not paid in an amount and within the time frame specified in the SOA.
7. Term of MSA. This MSA shall commence on the Effective Date and shall remain effective for a base term of five (5) years (the “Initial Term”), unless earlier terminated in accordance with the provisions of this MSA. This MSA shall automatically renew and continue in force for an additional five (5) years (“Extended Term”) until terminated by either party upon sixty (60) calendar days written notice to the other party prior to the expiration of the Initial Term or any Extended Term. Vesta may, at its option by notice provided to Customer at least ninety (90) days prior to the expiration of the Initial Term, change the monthly recurring rates charged to Customer pursuant to an applicable SOA and this Agreement. The terms and conditions of this MSA shall continue to apply during any Service specific commitments set forth in a SOA or other attachment that extends beyond the Initial Term or Extended Term. The parties agree that any recurring charges identified in the SOA may be adjusted no more than once annually, starting 12 months after the Services Commencement Date, if the prior year's US inflation rate is greater than 3.00%, as indicated by the US Bureau of Labor Statistics' annual US CPI-U numbers. At Motorola’s discretion, it may increase the pricing by the difference in percentage between the prior year's annual US CPI-U number and 3.00%, applied to all recurring charges for the remaining Initial Term and any Renewal Term(s).
8. Termination of MSA.
A. For Cause. Either party may terminate this MSA immediately, in whole or in part, for default or breach subject to the following provisions: (i) If the default or breach is reasonably capable of cure, the non-defaulting party shall give the other party written notice in accordance with Section 21 herein and thirty (30) calendar days from the date of the notice to cure; and (ii) if the defaulting party fails to cure the breach within the 30-calendar day cure period, automatic termination of this MSA shall be effective on the 31st calendar day.
B. Termination for Convenience. Subject to the terms of Section 8(E) below, Customer may terminate this MSA for convenience upon thirty (30) calendar day written notice in accordance with Section 21 herein.
C. Termination by Mutual Agreement. This MSA may be terminated by mutual written agreement of the parties, without any liability for termination charges as described in Section 8(E) of this MSA if (i) upon thirty (30) calendar days prior written notice, Customer notifies Motorola that a state 9-1-1 agency seeks to directly pay for the services described within this MSA; and (ii) Motorola and state 9-1-1 agency have successfully negotiated and executed an agreement for the provision of the Services described in this MSA.
D. Effect of Termination or Expiration. In the event of termination of this MSA or SOA, Motorola shall be entitled to payment for Services ordered by Customer prior to termination of this MSA and delivered and/or rendered, as applicable.
E. Termination Charges. If Customer terminates this MSA or a SOA for failure to obtain appropriation or budget funding pursuant to the terms of Section 11 entitled “Appropriation: Funding,” Customer shall have no further liability under this MSA except as otherwise provided in Section 11. If: (a) Customer chooses early termination of this MSA or a SOA, or (b) Motorola terminates this MSA for Cause (as provided in Section 8(A)), then Customer shall pay to Motorola, within thirty (30) calendar days after such termination, (i) if the termination is prior to installation of an ordered Service, an amount equal to 10% of the remaining monthly recurring charges as set forth in the pricing schedule in the applicable SOA or (ii) if the termination is after installation of an ordered Service, an amount equal to 50% of the monthly recurring charges as set forth in the pricing schedule in the applicable SOA for the period remaining in the applicable Term. Notwithstanding anything to the contrary in this MSA, any non-recurring charges set forth in a pricing schedule are non-refundable.
9. Quotes and Orders. This MSA shall not be construed as a purchase order for any Services. Whenever Customer desires a quote from Motorola regarding the purchase of Services, Customer shall make a written request for a quote.
A quote shall be valid for a period of one hundred twenty (120) calendar days from the date of the quote unless otherwise stated on the quote. If Customer desires to purchase the Services identified in a quote, Customer shall sign a SOA. Upon a fully executed SOA, Motorola shall commence the requested Service on the Services Commencement Date (as defined in the applicable SOA).
10. Notice of Service Interruption or Disconnection. Motorola shall use reasonable efforts under the circumstances to avoid interrupting any Service without notice. Subject to applicable law, Motorola may interrupt Service with notice as necessary to protect the security and proper operation of Motorola’ or Customer’s facilities or Services. Except as otherwise provided in the foregoing, any other termination or disconnection of all or part of any Service shall be subject to prior written notice. Customer shall provide prior written notice pursuant to Section 21 for the disconnection of Service.
11. Appropriations; Funding. Customer further agrees to request all appropriations and budget funding necessary to pay for the Services for each subsequent fiscal period through the end of the Initial Term or any Extended Term. In the event Customer is unable to obtain the necessary appropriations or budget funding for the Services, Customer may terminate the Services without liability for the termination charges set forth in this MSA upon the following conditions: (i) Customer has taken all actions necessary to obtain adequate appropriations or budget funding; (ii) despite Customer’s best efforts, funds have not been appropriated or budgeted and are otherwise unavailable to pay for the Services; and (iii) Customer has negotiated in good faith with Motorola to develop revised terms, an alternative payment schedule or a revised SOA, including any associated Attachments to accommodate Customer’s appropriations or budget. Customer must provide Motorola with thirty (30) calendar days prior written notice pursuant to Section 21 of its intent to terminate this MSA or an applicable SOA under this Section. Termination of this MSA or an applicable SOA for failure to obtain necessary appropriations or budget funding shall be effective as of the last day for which funds were appropriated or budgeted or otherwise made available. If Customer terminates this MSA and/or an SOA under this Section, Customer agrees it shall pay all amounts due for any costs incurred and services rendered and/or accepted or delivered up to and including the date of termination.
12. Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED HEREIN, SERVICES ARE PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY ARISING BY COURSE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ANY WARRANTY THAT THE SERVICES SHALL MEET CUSTOMER’S REQUIREMENTS OR ANY WARRANTY REGARDING THE QUALITY, CONTENT, ACCURACY OR VALIDITY OF THE INFORMATION OR DATA RESIDING ON OR PASSING THROUGH OR OVER THE NETWORK. ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, AVAILABILITY, SECURITY, RELIABILITY, SPEED OR TIMELINESS OF TEXT MESSAGE DELIVERY AND UNINTERRUPTED OR ERROR-FREE SERVICE AND TRANSMISSION QUALITY ARE NOT GUARANTEED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN VESTA SOLUTIONS’ PRIVACY POLICY (AS PROVIDED IN HTTPS://WWW.MOTOROLASOLUTIONS.COM /EN_US/ABOUT/PRIVACY-POLICY.HTML#PRIVACYSTATEMENT AND INCORPORATED HEREIN, VESTA SOLUTIONS HAS NO OBLIGATION TO PROVIDE SECURITY OR PROTECTION FOR CUSTOMER’S PRIVACY, CONFIDENTIAL INFORMATION OR DATA. NO ORAL OR WRITTEN ADVICE OR INFORMATION BY VESTA SOLUTIONS’ EMPLOYEES, AGENTS OR CONTRACTORS SHALL CREATE A WARRANTY, AND CUSTOMER MAY NOT RELY ON SUCH INFORMATION.
13. Limitation of Liability. IN NO EVENT SHALL VESTA SOLUTIONS’, ITS AFFILIATES’, AGENTS’, SUPPLIERS’ OR SUBCONTRACTORS’ COLLECTIVE TOTAL LIABILITY FOR ALL SERVICES PROVIDED UNDER THIS MSA AND/OR SOA EXCEED SIX (6) MONTHS OF CUSTOMER’S MONTHLY RECURRING CHARGES FOR THE PERIOD IMMEDIATELY PRECEDING THE PERIOD IN WHICH THE DAMAGE OCCURS. IF CUSTOMER’S SERVICE IS INTERRUPTED, VESTA SOLUTIONS’ LIABILITY SHALL BE LIMITED TO A PRO-RATA CREDIT FOR THE PERIOD OF INTERRUPTION. CUSTOMER AGREES THAT THE PRICING OF SERVICES REFLECTS THE INTENT OF THE PARTIES TO LIMIT VESTA SOLUTIONS’ LIABILITY AS PROVIDED HEREIN. UNDER NO CIRCUMSTANCES SHALL VESTA SOLUTIONS BE LIABLE FOR ANY ACCIDENT OR INJURY CAUSED BY SERVICES, ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS, LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, LOSS OF BUSINESS DATA), ANY PUNITIVE OR EXEMPLARY DAMAGES, THE COST OF ALTERNATIVE SERVICE, OR ATTORNEY’S FEES OR FOR ANY DELAY OR FAILURE TO PERFORM UNDER THIS MSA AND/OR SOA DUE TO CAUSES BEYOND VESTA SOLUTIONS’ REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO SERVICE INTERRUPTIONS, OR ANY OTHER LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. VESTA SOLUTIONS IS NOT RESPONSIBLE OR LIABLE IF SERVICES ARE LOST, STOLEN, MISUSED, OR IF CUSTOMER IS THE VICTIM OF FRAUD, EXCEPT WHEN DUE SOLELY TO VESTA SOLUTIONS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. CUSTOMER ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THE LIMITATIONS CONTAINED HEREIN, THE FEES CHARGED FOR THE SERVICES WOULD BE HIGHER.
14. General Indemnity. Motorola shall indemnify Customer from any claim against Customer for personal injury, including death, or direct damages to property to the extent such death, injury, loss or damage is attributable to the willful or grossly negligent act or omission of Motorola, its employees, agents or sub-contractors; provided that Customer provides Motorola with (i) written notice within thirty (30) calendar days of the date Customer first becomes aware of such a Claim; (ii) sole control over the defense or settlement thereof; and (iii) reasonable assistance, information and authority to settle and/or defend any such Claim.
15. Motorola-Provided and Owned Equipment. Any equipment provided and owned by Motorola and installed on Customer’s premises (such as the Channel Service Unit/Data Service Unit, interface cards, Channel Bank and routers, if applicable) shall remain at all times the property of Motorola. The equipment shall remain in good condition, less normal wear and tear. Motorola shall be responsible for the maintenance and repair of the equipment unless it is damaged as a result of the action or inaction of Customer or its employees, agents, or contractors, in which case Customer shall reimburse Motorola for the cost of any necessary repairs or replacement of the equipment as determined by Motorola in its sole discretion. Customer shall provide Motorola reasonable access to the equipment for purposes of repair, maintenance, removal or otherwise. If Motorola does not have access to Customer’s premises within thirty (30) calendar days after Customer terminates this MSA, or if Motorola requests Customer to return the equipment and Customer does not return the equipment within thirty (30) calendar days of termination, Customer shall reimburse Motorola for the full purchase price of the equipment as well as any attorney’s fees and costs. Customer shall pack and ship the equipment in such a way so as to limit and/or avoid damage to the equipment. In the event the equipment is damaged in shipping, Customer shall be responsible for the cost to replace the equipment. For the avoidance of doubt, Customer is responsible for maintaining all equipment on its premises not provided and/or owned by Motorola and ensuring such equipment is compatible with Motorola’ network.
16. Confidentiality and Nondisclosure.
A. Confidential Information. By virtue of this MSA, the parties may have access to information that is confidential to one another (“Confidential Information”). Such Confidential Information may include, but shall not be limited to the following types of information (whether or not reduced to writing): Proprietary system protocols, trade secrets, inventions, drawings, file data, documentation, diagrams, specifications, know‑how, processes, formulas, models, flow charts, software in various stages of development, source codes, object codes, research and development procedures, test results, product features and functionality (current and pending development), marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans, information relating to Customers and/or suppliers’ identities, characteristics and agreements, financial information and projections, and employee files and other related or similar information. Confidential Information shall also include all reports, summaries, compilations, analyses, notes or other information prepared by the recipient that are based on or reflect any Confidential Information. It is the express intent of this Section that neither party disclose to any third party any Confidential Information, however, a party may disclose such information to its directors, officers, Affiliates, employees, consultants, contractors, and advisors with a demonstrable need to know such Confidential Information (“Permitted Personnel”). “Affiliates” shall mean another entity that directly or indirectly controls, is controlled by, or is under common control with the party in question. The parties shall be responsible for any breach of this MSA by any of their Permitted Personnel and each party agrees, at its sole expense, to take all reasonable measures to restrain its Permitted Personnel from prohibited or unauthorized disclosure or use of the Confidential Information.
B. Nondisclosure. A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the receiving party in breach of this MSA; or (ii) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; or (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the other party. The parties agree, both during the term of this MSA and for a period of three (3) years after termination of this MSA, to hold each other’s Confidential Information in confidence. The parties agree to use reasonable efforts to avoid making the other’s Confidential Information available in any form to any third party and to avoid using the other’s Confidential Information for any purpose other than the implementation of this MSA or in the exercise of rights conferred by this MSA. Each party agrees to use the same degree of care that it uses to protect its own confidential information of a similar nature and value, but in no event less than a reasonable standard of care, to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this MSA. Each party agrees that it shall not reverse-engineer, decompile or disassemble any Motorola product disclosed to it and shall not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the other party. Each party represents that it has an appropriate agreement with each of its employees who may have access to any Confidential Information that is sufficient to enable it to comply with all of the terms of this Section.
17. Customer Consent to Use of Customer Proprietary Network Information (“CPNI”). Motorola acknowledges that it has a duty, and Customer has a right, under federal and/or state law to protect the confidentiality of Customer’s CPNI. CPNI includes information relating to the quantity, technical configuration, type, destination, location, and amount of use of the telecommunications services Customer purchases from Motorola and made available to Motorola solely by virtue of Customer’s relationship with Motorola. With Customer consent, Motorola may share Customer CPNI and other Confidential Information among its Affiliates, agents, and contractors so that all may use this information to offer Customer the full range of products and services offered by Motorola and its Affiliates. By signing this MSA, Customer consents to Motorola using and disclosing Customer CPNI as described above. Customer may refuse CPNI consent by signing this MSA and by notifying Motorola in writing at Vesta.CustomerInquiry@motorolasolutions.com of Customer’s decision to withhold Customer’s consent to use CPNI. Customer’s consent or refusal to consent shall remain valid until Customer otherwise advises Motorola. Customer’s refusal to consent shall not affect Motorola’ provision of Services to Customer.
17.1 Motorola shall protect the confidentiality of Customer CPNI in accordance with applicable laws, rules and regulations. Motorola may access, use, and disclose Customer CPNI as permitted or required by applicable laws, rules, regulations and this MSA.
17.2 Motorola may provide Customer CPNI to Authorized Customer Representatives (as defined below) via any means authorized by Motorola that is not prohibited by applicable laws, rules, or regulations, including, without restriction: to the Customer’s email address(es) of record (if any) or other email addresses furnished by Authorized Customer Representatives; to the Customer’s telephone number(s) of record or other telephone numbers provided by Authorized Customer Representatives; to the Customer’s postal (US Mail) address(es) of record or to other postal addresses furnished by Authorized Customer Representatives; or via Motorola’ on-line customer portal or other on-line communication mechanism.
17.3 Authorized Customer Representatives include Customer employees, Customer agents, or Customer contractors, other than Motorola, who have existing relationships on behalf of Customer with Motorola customer service, account, or other Motorola representatives and all other persons authorized in written notice(s) (including email) from Customer to Motorola. Authorized Customer Representatives shall remain such until Customer notifies Motorola in writing that they are no longer Authorized Customer Representatives as described below. Customer agrees, and shall cause Authorized Customer Representatives, to abide by reasonable authentication and password procedures developed by Motorola in connection with disclosure of Customer CPNI to Authorized Customer Representatives.
17.4 Customer’s notices of authorization or deauthorization must be sent to Motorola, and must contain the following information: (i) the name, title, postal address, email address, and telephone number of the person authorized or deauthorized; (ii) that the person is being authorized, or is no longer authorized, (as applicable) to access CPNI; and (iii) the full corporate name of the Customer whose CPNI (and whose affiliates’ CPNI) the person can access (or can no longer access, if applicable).
18. Compliance with Applicable Laws.
18.1 Motorola shall comply with all applicable federal, state and local laws and regulations in providing the Services.
18.2 Motorola agrees to obtain and maintain all interconnection and commercial agreements, permits, licenses, and governmental approvals necessary to perform its obligations under this MSA.
18.3 Motorola is solely responsible for ensuring that its employees, agents, vendors, subcontractors, and authorized representatives (“Authorized Motorola Representatives”) comply with (i) the terms and conditions of this MSA and applicable SOA; (ii) when provided to Motorola by Customer, all applicable safety rules and regulations and all applicable licensing requirements for the purpose of performing any and all work required under this MSA and SOA; and (iii) when provided to Motorola by Customer, all rules, regulations, and procedures to which an employee of Customer would be subject while performing similar activities on Customer’s premises to the extent that the Authorized Motorola Representatives are performing work on Customer’s premises.
19. Cooperative Purchasing. A public agency may purchase Services pursuant to the terms of this MSA: (i) to the extent that a jurisdiction is authorized under applicable law; and (ii) provided that the purchasing jurisdiction and Motorola have entered into a separate MSA and applicable SOA. A “public agency” is defined as any federal governmental or federal department or agency; state, county, city, county and city, municipality agency, or other political subdivision of state, any public agency of any such political subdivision, any public authority, and, to the extent provided by law, any other entity which expends funds for the procurement of services for 9-1-1 emergency communication.
20. Force Majeure. Neither party shall be liable for the delay nor failure to perform its obligations (excluding payment obligations) caused by circumstances beyond their reasonable control.
21. Notices. All notices given under this MSA shall be in writing and shall be delivered to the addresses specified below. Notices shall be effective upon receipt, and shall be deemed to have been received as follows: (i) if personally delivered, when delivered; (ii) if by certified mail return receipt requested, on the date it is officially recorded as delivered to or refused by the intended recipient by return receipt or equivalent; or, (iii) if by expedited messenger service (e.g. FedEx), when delivered as confirmed by delivery receipt.
22. Amendment or Waiver. No provision of this MSA or SOA shall be deemed waived, amended, or modified by either party unless such waiver, amendment or modification is in writing and contains the signature of an authorized representative of the party against whom it is sought to be enforced. For purposes of this Section 22, an electronic mail shall not constitute a writing. Either Party’s failure to enforce any of the provisions of this MSA or SOA shall not be construed as a waiver of such provisions or rights, or affect the validity of this MSA or any SOA.
23. Severability. If any part, term or provision of this MSA or SOA is held to be void, illegal or unenforceable, the validity of the remaining portions or provisions shall not be affected thereby.
24. Governing Law, Attorneys’ Fees. The validity, performance, and all matters relating to this MSA or SOA and any amendment associated therewith shall be governed by the laws of the State in which the applicable services are provided, without reference to conflicts of law principles. The parties hereby consent to jurisdiction and venue in the federal and state courts of such State. If any legal action or other proceeding is brought to enforce the provisions of this MSA, Each Party will bear its own costs of such legal actions, including but not limited to attorneys’ fees, applicable court costs, fees for other dispute resolution and internal costs.
25. Assignment and Subcontracting. Except as hereinafter provided, neither this MSA nor any right or obligation hereunder may be transferred, assigned or delegated by either party without the prior written consent of the other, which consent shall not be unreasonably withheld. Any attempted assignment, delegation or transfer shall be void except in the case of assignment by a party to its parent, or to any subsidiary or to a successor in interest in the course of a merger or sale of all/substantially all of a party’s assets. Notwithstanding the foregoing, Motorola shall have the right to subcontract all or a portion of any Services provided hereunder.
26. Authority. Each party hereto represents and warrants that (i) it has obtained all necessary approvals, consents and authorizations of third parties and governmental authorities to enter into this MSA and SOA and to perform and carry out its obligations hereunder; (ii) the persons executing this MSA and SOA on its behalf have express authority to do so, and, in so doing, to bind the party thereto; (iii) the execution, delivery, and performance of this MSA and/or SOA do not violate any provision of any bylaw, charter, regulation, or any other governing authority of the party; and (iv) the execution, delivery and performance of this MSA and SOA have been duly authorized by all necessary partnership, corporate or governmental action and this MSA and SOA are valid and binding obligations of such party, enforceable in accordance with its terms.
27. Survival of Provisions. The parties agree that where the context of any provision indicates an intent that it shall survive the term of this MSA, then it shall survive.
28. Entire Agreement. This MSA, SOA and applicable Tariff(s) shall constitute the entire understanding between the parties concerning the subject matter hereof and supersede all prior discussions, agreements and representations, whether oral or written and whether or not executed by Customer and Motorola.
29. Captions. Article and section headings used herein are for convenience only and are not a part of this MSA and shall not be used in construing it.
30. Counterparts. This MSA and any SOA may be executed in one or more counterparts, all of which taken together shall constitute one instrument. Once fully executed, it shall become effective as of the Effective Date stated above. Delivery of an executed signature page of this MSA by facsimile transmission or electronic photocopy (i.e., “pdf”) shall be equally effective as manual delivery of an original signed counterpart hereof.