Master Services Agreement
Last Updated March 9, 2026
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Definitions.
“Action” has the meaning set forth in Section 12.1.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person through the ownership of voting securities, by contract or otherwise.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by Law to be closed for business.
“Confidential Information” has the meaning set forth in Section 9.1.
“Customer Indemnitee” has the meaning set forth in Section 12.1.
“Customer Materials” has the meaning set forth in Section 7.2.
“Designated Site” means the Customer facility identified in the applicable SOW.
“Disclosing Party” has the meaning set forth in Section 9.1.
“Documentation” means any and all user manuals, operating manuals, and instructions, specifications, and other documents and materials that Skyward provides or makes available to Customer in any medium and which describe the operation, use, support, or maintenance of the Skyward Products.
“Effective Date” has the meaning set forth in the preamble.
“Fees” has the meaning set forth in Section 6.1.
“Force Majeure Event” has the meaning set forth in Section 14.1.
“Hardware” means any equipment, device or component incorporated into the Network or otherwise provided by Skyward to Customer pursuant to an SOW.
“Indemnitee” has the meaning set forth in Section 12.3.
“Indemnitor” has the meaning set forth in Section 12.3.
“Initial Term” has the meaning set forth in Section10.1.
“Integration Acceptance Tests” has the meaning set forth in Section 5.1
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and other costs and fees incurred in enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Network” means the telecommunications network to be designed, developed, installed, integrated, operated and/or managed by Skyward pursuant to this Agreement.
“Nonconformity” has the meaning set forth in Section5.2.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personnel” means, with respect to a party, the employees or independent contractors of such party, or, in the case of Skyward, any Subcontractor.
“Products” means the Services, Hardware, Software and Documentation.
“Reimbursable Expenses” has the meaning set forth in Section 6.3.
“Renewal Term” has the meaning set forth in Section10.1.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, agents, independent contractors, subcontractors, and legal advisors.
“Required Rights” has the meaning set forth in Section 2.6.
“Reseller Products” shall have the meaning set forth in Section 3.
“Services” has the meaning set forth in Section 2.1.
“Skyward Indemnitee” has the meaning set forth in Section 12.2.
“Skyward Materials” has the meaning set forth in Section 7.1.
“Skyward Products” shall have the meaning set forth in Section 3 and shall exclude Reseller Products.
“Software” means the software, plugins, mobile applications, application programming interfaces, connectors, integration and related platforms and software services that are incorporated into or required to use the Network.
“Specifications” has the meaning set forth in Section 2.2.
“Statement of Work” or “SOW” means a statement of work mutually agreed upon by the parties as stated in the quotation document referenced on the Skyward Order and Agreement Form incorporated herein by reference.
“Subcontractor” has the meaning set forth in Section2.5.
“Telecom Provider” has the meaning set forth in Section 3.3.
“Term” has the meaning set forth in Section 10.1.
“Testing Period” has the meaning set forth in Section 5.1.
General Service Obligations.
Engagement of Skyward. Customer engages Skyward, and Skyward hereby accepts such engagement, to provide the Hardware, Software, and Documentation and perform the Network installation, configuration, integration, management, and other services related thereto (“Services”) as further described in an SOW executed by the parties, in each case on the terms and conditions set forth in this Agreement.
Statement of Work. Each SOW will be effective and incorporated into this Agreement when mutually agreed upon in writing and duly executed by the parties or accepted by Skyward through delivery of written notice to Customer or performance of the SOW. Skyward shall have no obligation to provide Products unless and until the applicable SOW is accepted by Skyward pursuant to this Section 2.2. Each SOW will be numbered and dated for identification and shall include: (a) a description of the Products to be provided; (b) the parameters, specifications, and other requirements for the performance of Services and provision of Hardware and Software (collectively, the “Specifications”); (c) a listing of the anticipated project duration and interim milestones; (d) each party’s designated project manager pursuant to Section 2.3; (e) the amounts payable and timing of payments by Customer for the Products; (f) requirements for testing and acceptance of Products, if applicable; and (g) any additional information, terms, and conditions the parties may mutually agree to include. Skyward will use commercially reasonable efforts to meet any performance dates specified in a SOW, and any such dates are estimates only.
Project Management. Each party shall, throughout the term of each SOW, maintain a project manager identified in the applicable SOW to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Products. Each such project manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its project manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. If either party’s project manager ceases to be employed by such party or such party otherwise wishes to replace its project manager, such party shall promptly name a new project manager by written notice to the other party.
Changes. Customer may, at any time during the Term, request in writing changes to the Products, which Skyward may accept or reject at its sole discretion. Such changes only shall be effective upon an amendment to the applicable SOW signed by both parties. Any and all changes must be fully documented, detailing their impact on the applicable SOW, including but not limited to, the schedule, pricing, and provision of Products. Each such change which is mutually agreed upon and duly executed by the parties will become an amendment to such SOW and will be incorporated therein, as applicable.
Subcontractors. Skyward may from time to time in its discretion engage third parties to provide the Services (each, a “Subcontractor”); provided that Skyward will remain primarily responsible for performance of its obligations under the Agreement.
Securing Required Rights. Unless otherwise specified in the applicable SOW, Skyward shall use commercially reasonable efforts to secure with respect to all Products, all rights, licenses, contracts, consents, permits, authorizations, franchises, rights of way, easements, colocation agreements, leases, and other approvals (“Required Rights”) that are necessary for the provision of Products by Skyward and for Customer to own or control, use, and maintain, the Network. Skyward will use commercially reasonable efforts to cause all Required Rights applicable to the Network to be assignable to, and shall assign such Required Rights to, Customer upon delivery of the applicable Products.
Resale of Products Prohibited. In addition to the restrictions in Section 8.2 limiting Customer’s use of the Products, Customer shall not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any unaffiliated third party the Products in any way, except as expressly permitted under this Agreement or with the written consent of Skyward.
Priority of Terms. In the event of any inconsistency between the terms set forth in the body of this Agreement and the related SOWs (other than an exception to this Agreement expressly referred to as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, attachments, and appendices; (b) second, the SOWs; and (c) third, any other documents incorporated herein by reference. This Agreement prevails over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms, and such general terms and conditions shall not be binding on Skyward. Fulfillment of an SOW does not constitute acceptance of any of Customer’s terms and conditions.
Additional Terms. To the extent applicable and unless otherwise provided in the applicable SOW, all Products shall be provided by Skyward subject to Skyward’s Privacy Policy and Acceptable Use Policy then in effect as set forth on Skyward’s website: https://skywardconnect.com/.
Products. Subject to the terms and conditions herein and as set forth in the applicable SOW, Skyward will provide the Products set forth on the applicable SOW and the attachments thereto. Where Skyward serves as a reseller of Hardware or Software manufactured or provided by a third party (“Reseller Products”), such Reseller Products will be so identified on the applicable SOW or the attachments thereto. All Products not so identified on the applicable SOW are proprietary to and shall be provided by Skyward or its Subcontractors (“Skyward Products”).
Skyward Products.
Unless otherwise agreed in writing by the parties, Skyward shall deliver the Skyward Hardware described on the applicable SOW to the Designated Site pursuant to the shipping terms specified in the applicable SOW. Title to Skyward Hardware shall pass upon payment of the applicable Fees. Customer will execute a bill of sale or similar document in the form provided by Skyward to document or effectuate such transfer of title. Risk of loss for Skyward Hardware shall pass as specified in the applicable SOW.
Skyward Software is proprietary to Skyward whether provided to Customer (a) without modification, (b) modified by Skyward under this Agreement, or (c) developed by Skyward specifically for Customer. Subject to and conditioned on Customer’s payment of Fees and compliance with all the terms and conditions of this Agreement, Skyward hereby grants to Customer a non-exclusive, non-sublicensable and non-transferable license during the Term to (i) use the Skyward Software solely for Customer’s internal business purposes up to the number of authorized users set forth in the applicable SOW; and (ii) use and make a reasonable number of copies of the Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Network. Customer shall not use the Skyward Software or Documentation for any purposes beyond the scope of the license granted in this Agreement.
Reseller Products.
Unless otherwise agreed by the parties in the applicable SOW, the terms of this Section (a) shall apply to all Reseller Hardware. Skyward shall procure all Reseller Hardware and arrange for, and provide or procure, the delivery, receipt, unloading, inspection, and storage of all Reseller Hardware at the Designated Site.Title to Reseller Hardware shall pass to Customer upon payment of the applicable Fees. Skyward may require, and in such event Customer will execute, a bill of sale or similar document in the form provided by Skyward to document or effectuate such transfer of title. Unless otherwise specified in the applicable SOW, risk of loss for Reseller Hardware shall pass to Customer upon the applicable manufacturer making the goods available for loading by the carrier at the manufacturer’s site. Additional shipping terms shall be specified in the applicable SOW.
Skyward will use commercially reasonable efforts to extend to Customer all warranties provided by manufacturers and vendors of Reseller Hardware, and agrees to render reasonable assistance, if necessary, in obtaining the repair or replacement of any Reseller Hardware during the life of the warranty.
The Network may include or operate in conjunction with Reseller Software identified in the applicable SOW. For purposes of this Agreement, all Reseller Software is subject to its own license terms and applicable flow-through provisions referred to in the applicable SOW. If Customer does not agree to abide by the applicable terms for such Reseller Software, then Customer should not use such Reseller Software.
Skyward makes no representations or warranties with respect to, and does not provide support for, Reseller Products, whether or not they are designated by Skyward as “recommended,” “certified,” or otherwise. Skyward is not responsible for any violations of Law relating to Reseller Products or arising from Customer’s use of Reseller Products. Skyward does not guarantee the continued availability of any Reseller Products (or any integration with such Reseller Products), and if such Reseller Products or related features are discontinued, Customer will not be entitled to any refund or other compensation. Skyward is not responsible or liable for any late delivery or delay or failure of performance caused, in whole or in part, by delay in procurement or delivery of Reseller Products. In the event of any such delay or failure, Skyward may, in its sole discretion and by written notice to Customer, extend all such performance dates as Skyward deems reasonably necessary and, where applicable, amend the applicable SOW to reflect such extensions.
Regulated Telecommunications Service. Skyward does not provide regulated telecommunications service to its customers. Skyward’s sole role with respect to regulated telecommunications services is to facilitate the Customer’s purchase of such services from a telecommunications carrier (each, a “Telecom Provider”). To the extent the Network requires services provided by a Telecom Provider, (i) such services will be deemed Reseller Products subject to Section 3.2(d); (ii) Skyward will facilitate Customer’s receipt of services from a Telecom Provider selected by Skyward and reasonably agreed by Customer; and (iii) Customer will enter into a service contract with such Telecom Provider. The relationship between Customer and any Telecom Provider, including, without limitation, any payment of fees or exchange of data between Customer and the Telecom Provider is solely between Customer and the applicable provider, and governed by the agreement(s) by and between Customer and such Telecom Provider. Notwithstanding the foregoing, Skyward may act as a billing agent for such Telecom Provider. Customer acknowledges that Skyward may earn a commission from a Telecom Provider.
Training and Support. If applicable, Skyward shall provide Customer with training on the terms and conditions set forth in the applicable SOW. Following completion of an SOW, Skyward may provide to Customer maintenance and support services on the terms and conditions stated in a Maintenance and Support Agreement mutually agreed and executed by the parties, as the same may be amended, renewed, extended, or reinstated from time to time.
Customer Obligations.
Customer Resources and Cooperation. Customer shall timely provide such cooperation and assistance as Skyward reasonably requests to enable Skyward to provide the Products in accordance with the applicable SOW, including any applicable performance dates set forth therein. Without limitation of the foregoing, Customer shall timely:
perform all obligations identified as Customer responsibilities in the applicable SOW;
provide the Customer Materials and all such other resources as may be specified in the applicable SOW;
provide Skyward Personnel with access to Customer’s premises, systems, equipment, and suitably qualified personnel;
provide any information reasonably requested by Skyward in connection with the Products and reasonable assistance requested by Skyward to obtain Required Rights;
participate through suitably qualified and authorized Customer personnel in (i) all meetings scheduled in or in accordance with the applicable SOW and (ii) such other meetings as may be scheduled by either party; and
provide all consents, approvals, notices, and other communications as required under this Agreement and, where applicable, as specified in the applicable SOW.
Effect of Customer Failure or Delay. Skyward is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, Skyward may, in its sole discretion and by written notice to Customer, extend all such performance dates as Skyward deems reasonably necessary and, where applicable, amend the applicable SOW to reflect such extensions. The foregoing is in addition to, and not in lieu of, all other remedies Skyward may have for any such failure or delay by Customer.
Responsibility for Customer Materials. Customer is solely responsible for the authority, quality, accuracy, and completeness of the Customer Materials. Skyward shall have no duty to verify the Customer Materials and shall not be responsible for errors, delays or losses resulting from reliance on the Customer Materials.
Licensee Responsibilities. Customer is responsible and liable for all uses of the Software and Documentation provided hereunder resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement or any agreement between Customer and its users.
Testing and Acceptance. All acceptance testing of the Products will be conducted as follows:
Following completion of the provision of Products pursuant to a SOW, Customer will have ten (10) days, or such other period of time set forth in an SOW, if any (“Testing Period”), to conduct the tests set forth in the applicable SOW (the “Integration Acceptance Tests”) to evaluate whether the Products materially conform to the Specifications and perform materially in accordance with the Documentation. Customer shall provide Skyward reasonable advance notice of, and an opportunity to observe or participate in, all or any part of the Integration Acceptance Tests.
Promptly upon the completion of the Integration Acceptance Tests, Customer shall notify Skyward in writing of any material failure of the Products to conform to the Specifications or perform in accordance with the Documentation (each, a “Nonconformity”). Customer shall include in any such notice a reasonably detailed description of the Integration Acceptance Tests conducted, the results thereof, and each identified Nonconformity. The Products will be deemed accepted by Customer upon the expiration of the Testing Period if Customer has not delivered a notice identifying a Nonconformity prior to such expiration.
Following receipt of a notice of Nonconformity, Skyward shall use commercially reasonable efforts to remedy the Nonconformities reported by Customer. Customer shall, at no charge to Skyward, provide all such cooperation and assistance as Skyward may reasonably request to assist Skyward’s efforts to remedy Nonconformities. Upon Skyward’s notice of its correction of the reported Nonconformities, Customer shall have an additional Testing Period to conduct Integration Acceptance Tests to determine whether such Nonconformities have been remedied. The parties shall repeat the process set forth in Section 5.1 and Section 5.2until Customer has accepted the Products as set forth in Section 5.2.
Notwithstanding the foregoing and unless otherwise set forth in the applicable SOW, Reseller Products are not subject to the acceptance process in this Section 5. Subject to Section 3.2(b), any dispute Customer has with any provider of Reseller Products is directly between Customer and such third party, and Customer irrevocably releases Skyward, its Affiliates and their respective heirs, officers, directors, agents and employees from all claims, demands, and damages (actual and consequential), known and unknown, arising out of or connected with such disputes.
Skyward has the right to dispute, in good faith, Customer’s notice of Nonconformity by providing written notice to Customer of such dispute within ten (10) Business Days after Skyward’s receipt of Customer’s written notice of such Nonconformity. Pending the resolution of such dispute, Skyward will have no obligation to refund any amounts prepaid for the Network or Products, correct any alleged Nonconformity, or repair or replace any Products.
This Section 5 sets forth Skyward’s sole obligations and Customer’s exclusive remedies for any failure of the Products to conform to the Specifications or perform in accordance with the Documentation.
Fees; Payment Terms.
Fees. Customer shall pay to Skyward the fees set forth in each SOW (“Fees”).
Payment Terms. Customer shall pay all Fees and Reimbursable Expenses on or prior to the due date therefore set forth in the applicable SOW or, where the applicable SOW does not specify such date, within thirty (30) days after the date of Skyward’s invoice therefore Customer shall make all payments hereunder in US dollars.
Reimbursable Expenses. Customer shall reimburse Skyward for all travel and out-of-pocket expenses incurred by Skyward in connection with providing the Products (“Reimbursable Expenses”).
Fee Increases. The parties agree that after the initial twelve (12) months of the Term, for Services provided on a time and materials basis or monthly in advance, Skyward may increase its standard rates specified in the applicable SOW upon written notice to Customer; provided that:
Skyward provides Customer written notice of such increase at least ninety (90) days prior to the increase’s effective date;
such increases occur no more frequently than once per contract year of the Term; and
the amount of such increase shall not exceed the greater of:
the percentage rate of increase for the immediately preceding 12-month period in the Consumer Price Index, All Urban Consumers, United States, All Items (1982 - 1984 = 100), as published by the Bureau of Labor Statistics of the United States Department of Labor or, if such index is not available, such other index as the parties may agree most closely resembles such index; or
five percent (5%).
Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
Skyward may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
Customer shall reimburse Skyward for all reasonable costs incurred by Skyward in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and
if such failure continues for fifteen (15) days following written notice thereof, Skyward may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties, assessments, contributions, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Skyward’s income.
No Deduction or Setoff. Customer shall pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by Skyward whether under this Agreement, applicable Law, or otherwise and whether relating to Skyward’s breach, bankruptcy, or otherwise.
Intellectual Property Rights.
Skyward IP. All right, title, and interest in and to (a) any and all information, data, documents, materials, inventions, technologies, know-how, works, and other subject matter, including all software, hardware, systems, methods, processes, and devices, and all specifications, descriptions, requirements, plans, and reports, and all Intellectual Property Rights therein, provided to Customer or used to provide the Products to Customer hereunder (the “Skyward Materials“); and (b) all works, inventions, and other subject matter incorporating, based on, or derived from any of the same, including all customizations, enhancements, improvements, and other modifications thereof (collectively, “Derivatives”), in each case (subclause (a) and subclause (b)) by whomsoever made and including all Intellectual Property Rights therein, are and will remain with Skyward. Customer has no right or license with respect to any Skyward Materials or Derivatives, except as expressly licensed under Section 8.1, in each case subject to Section 8.2. Skyward expressly reserves all other rights in and to the Skyward Materials and Derivatives.
Customer Materials. As between the parties, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to the specific documents and materials, including specifications, software, hardware, and technologies, that are provided or made available to Skyward or any of its Subcontractors by or on behalf of Customer in connection with this Agreement, including all Intellectual Property Rights therein (the “Customer Materials”), subject only to the license granted under Section 8.3. Customer expressly reserves all other rights in and to the Customer Materials.
Reseller Products. All right, title, and interest in and to the Reseller Products, including all Intellectual Property Rights therein, are and will remain with their respective third-party rights holders subject to the terms and conditions of all applicable third-party license agreements. Customer has no right or license with respect to any Reseller Products except as expressly licensed hereunder or under such third-party license agreements.
Licenses.
Skyward License. Subject to and conditioned upon Customer’s payment of the Fees and compliance with Section 8.2 and all other terms and conditions of this Agreement, Skyward hereby grants to Customer a fully paid-up and royalty-free, non-transferable (except as set forth in Section 15.6), non-sublicensable license solely: (a) to operate and use the Network in the ordinary course of Customer’s business operations at the Designated Site in accordance with the Documentation; and (b) to use the Documentation and other Skyward Materials in connection therewith.
Skyward License Restrictions. Customer shall not, and shall not permit any other Person to, access or use any Skyward Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, with respect to all Skyward Materials, Customer shall not, except as this Agreement expressly permits:
copy, modify, or create derivative works or improvements of the Skyward Materials;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Skyward Materials to any other Person, including through or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Skyward Materials or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Skyward Materials, including any copy thereof;
use any Skyward Materials in a manner or for any purpose that infringes, misappropriates, or otherwise violates any Law or Intellectual Property Right;
use the Skyward Materials for purposes of competitive analysis of the Network, the development of a competing Network, product, or service, or any other purpose that is to Skyward’s commercial disadvantage; or
otherwise use the Skyward Materials beyond the scope of the license granted under Section 8.1.
Customer Materials License. Customer hereby grants to Skyward a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Customer Materials to provide the Products or to further develop and improve the Skyward Products as necessary or desirable to provide the Network.
Confidentiality.
Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 9.2, “Confidential Information” means confidential or proprietary information in any form or medium (whether oral, written, electronic, or other), including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing. Without limiting the foregoing, the Skyward Materials and the terms, but not the existence of this Agreement and any SOWs hereunder, are the Confidential Information of Skyward and the Customer Materials are the Confidential Information of Customer.
Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for a period of five (5) years thereafter:
not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.3.
safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
ensure its Representatives’ compliance with and be responsible and liable for any of its Representatives’ noncompliance with, the terms of this Section 9.
Permitted Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. Additionally, Skyward shall have the right, without any violation of this Section 9, to disclose Customer Confidential Information to third-party providers of Reseller Products solely as required for the provision of Products pursuant to the applicable SOW.
Term and Termination.
Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until the first anniversary of the Effective Date (“Initial Term”). Following the Initial Term, this Agreement shall automatically renew for additional one (1) year periods (each, a “Renewal Term”, and collectively, along with the Initial Term, the “Term”), unless one party notifies the other in writing of its intent to allow the Agreement to expire no later than ninety (90) days prior to the end of the then-current Term. Each SOW shall commence on the date specified in the SOW and continue for the term set forth therein. Notwithstanding the foregoing, any SOW that is in effect at the expiration or termination of this Agreement shall remain subject to the terms of this Agreement until the expiration or termination of such SOW.
Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
Skyward may terminate this Agreement or any SOW, effective on written notice to Customer, if: (i) Customer fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after Skyward’s delivery of written notice thereof; or (ii) Customer breaches any of its obligations under Section 8.2 (Skyward License Restrictions) or Section 9(Confidentiality).
Either party may terminate this Agreement or any SOW effective on written notice to the other party if the other party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach, except that, if a cure cannot reasonably be accomplished by Skyward within such thirty (30) day period, Skyward’s cure period shall be extended for up to ninety (90) days if Skyward promptly commences cure of the breach upon receiving notice of the breach, is endeavoring in good faith to cure the breach, and such cure is reasonably likely to be completed within such ninety (90) day period.
Either party may terminate this Agreement, effective immediately, if the other party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
In the event Skyward terminates a SOW pursuant to Section 10.2(a) or Section 10.2(b), Skyward may additionally terminate any other then-effective SOW.
Effect of Expiration or Termination. Upon any expiration or termination of this Agreement:
Each party shall, upon the written request of the other party, return to the requesting party (or destroy at such party’s request) all copies of Confidential Information of the requesting party in such party’s possession or control, except that a party may retain data or electronic records containing Confidential Information of the other party (i) to the extent required for the purposes of backup, recovery, contingency planning, or business continuity planning so long as such data or records are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning or business continuity planning purposes or (ii) to the extent such party requires or will require such Confidential Information to perform any of its obligations or exercise any of its rights or licenses under any surviving terms of this Agreement.
If Customer terminates this Agreement pursuant to Section 10.2(b), Customer will be relieved of any obligation to pay any Fees hereunder for Products that Skyward has not provided as of the effective date of termination and Skyward will refund to Customer a prorated portion of any Fees paid in advance for such Products.
If Skyward terminates this Agreement pursuant to Section 10.2(a) or Section 10.2(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Skyward’s invoice therefor.
Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 2.7-2.9, 3.2(d), Section 3.3, Section 4.3, Section 4.4, Section 6.5, Section 6.7, Sections 7-9, Section 10.3, this Section 10.4, and Sections 11-15.
Representations and Warranties.
Skyward Representations and Warranties; Limited Remedy.
Skyward represents and warrants to Customer that Skyward will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
Skyward warrants that (i) with respect to Services, for a period of one year following delivery; and (ii) with respect to Skyward Software, for a period of ninety (90) days following delivery, the Services or Skyward Software, as applicable, as used in accordance with the Documentation, will function and otherwise be in conformity with the Specifications in all material respects. In the event of Skyward’s breach of the foregoing warranty, Skyward’s sole and exclusive obligation and liability and Customer’s sole and exclusive remedy shall be as follows:
Skyward shall use commercially reasonable efforts to cure the breach. The parties acknowledge that Skyward’s efforts to cure any such breach may require payment of additional costs by Customer, which the parties shall reasonably accommodate through the change process described in Section 2.3.
Skyward shall not be in breach of its warranty under this Section11.1(b), and the foregoing remedy shall not be available, unless Customer provides written notice of such breach within the applicable warranty period.
Customer Representations and Warranties. Customer represents, warrants, and covenants to Skyward that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials so that, as received by Skyward and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law.
DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, THE NETWORK AND ALL PRODUCTS ARE PROVIDED “AS IS” AND SKYWARD HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND SKYWARD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SKYWARD MAKES NO WARRANTY OF ANY KIND AS TO RESELLER PRODUCTS OR THAT THE NETWORK OR ANY PRODUCT OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, NETWORK, OR OTHER SERVICES (EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, FREE OF LATENCY OR DELAY, OR ERROR FREE. ALL RESELLER PRODUCTS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY RESELLER PRODUCT IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY PROVIDER OR DISTRIBUTOR OF THE RESELLER PRODUCT. Customer acknowledges and agrees that the Products are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption could lead to severe injury to business, persons, property, or environment. Notwithstanding anything to the contrary contained in the Agreement or a SOW, in no event shall Skyward or its Representatives be liable for any loss, damage, or claim arising out of or related to: (a) Customer Materials, content or data received or distributed by Customer or its users through the Network; (b) any act or omission of Customer, its users, or third parties not under the control of Skyward; (c) interoperability, interaction, or interconnection of the Products with applications, equipment, services, or networks provided by Customer or third parties not under the control of Skyward; or (d) loss or destruction of any Customer hardware, software, files, or data resulting from any virus or other harmful feature or from any attempt to remove it.
Indemnification.
Skyward Indemnification. Skyward shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, including Customer, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, suit, action, or proceeding (each, an “Action”) by a third party to the extent that such Losses arise from or relate to any allegation in such Action that Customer’s use of the Network (excluding Customer Materials and Reseller Products) in compliance with the Documentation, Specifications, and this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Loss arising out of or relating to any:
combination or use of the Network, any Network components, or Products with any hardware, software, network, service, or other materials, or performance not provided or authorized in writing by Skyward;
modification of the Network or Products other than: (i) by or on behalf of Skyward or (ii) with Skyward’s written approval in accordance with Skyward’s written specifications;
Customer Materials or Reseller Products; or
use of the Network or Products after Skyward’s notice of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights.
Customer Indemnification. Customer shall indemnify, defend, and hold harmless Skyward and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, including Skyward, an “Skyward Indemnitee”) from and against any and all Losses incurred by the Skyward Indemnitee in connection with any Action by a third party to the extent such Losses arise from any allegation in such Action of or relating to (a) Customer Materials or any use of Customer Materials by or on behalf of Skyward; or (b) a Customer Indemnitee’s violation of Law, breach of this Agreement, negligence or more culpable act or omission.
Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified under this Agreement. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its choice.
Mitigation. If the Network, other than Customer Materials and Reseller Products, is or in Skyward’s opinion is likely to be claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of the Network, other than Customer Materials or Reseller Products, is enjoined or threatened to be enjoined, Skyward may, at its option and sole cost and expense:
obtain the right for Customer to continue to use the Network in the manner materially contemplated by this Agreement;
modify or replace the Network, in whole or in part, to seek to make the Network (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the Network under this Agreement; or
by written notice to Customer, terminate with respect to all or part of the Network the license granted to Customer under this Agreement and require Customer to immediately cease any use of the Network or any specified part or feature thereof, and Skyward will provide a prorated refund of any pre-paid Fees for the unexpired portion of the Term.
THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND SKYWARD’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE NETWORK) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
Limitations of Liability.
EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE; OR (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN Section 13.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAYABLE BY CUSTOMER TO SKYWARD UNDER THE SOW UNDER WHICH THE CLAIM ARISES. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Exceptions. The exclusions and limitations in Section 13.1 and Section 13.2 do not apply to (i) either party’s obligations under Section 9 (Confidentiality); (ii) liability for either party’s gross negligence or willful misconduct; or (iii) Customer’s indemnification obligations under Section 12.2.
Force Majeure.
No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any confidentiality or payment obligations), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), which may include acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages, or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, tariff, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of sixty (60) days or more.
Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt notice to the other party stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
Miscellaneous.
Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed, provided, however, that Skyward may, without requiring Customer’s consent, include Customer’s name in its lists of Skyward’s current or former customers of Skyward in promotional and marketing materials.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as written in the Skyward Order Term Sheet. Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) when received if mailed by certified or registered mail, return receipt requested, postage prepaid.
Entire Agreement. This Agreement, together with each SOW and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Assignment. Neither party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the other party’s prior written consent, which shall not be unreasonably withheld or delayed; provided that either party may assign this Agreement in full to its Affiliate upon written notice to the other party. Any purported assignment, delegation, or transfer in violation of this Section 15.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas] without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or its subject matter shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, in each case located in the city of Dallas and County of Dallas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
Waiver of Jury Trial; Class Action. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. If permitted by applicable Law, Customer waives the right to litigate in a court or an arbitration proceeding any dispute as a class action, either as a member of a class or as a representative.
Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 8, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Non-Solicitation. During the Term and for one year thereafter, Customer shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior six months employed or engaged by Skyward or any Subcontractor and involved in any respect with the Products or the performance of this Agreement.
No Corruption. Each party represents, warrants and covenants to the other party that it is fully aware of and will comply with, and in the performance of its obligations hereunder will not take any action or omit to take any action that would cause either party to be in violation of, (a) the U.S. Foreign Corrupt Practices Act, (b) any other applicable anti-corruption laws, or (c) any regulations promulgated under any such laws. Each party represents, warrants and covenants that neither it nor any of its Personnel is an official or employee of any government (or any department, agency or instrumentality of any government), political party, state owned enterprise or a public international organization such as the United Nations, or a representative or any such person (each, an “Official”). Each party further represents, warrants and covenants that, to its knowledge, neither it nor any of its Personnel has offered, promised, made or authorized to be made, or provided any contribution, thing of value or gift, or any other type of payment to, or for the private use of, directly or indirectly, any Official for the purpose of influencing or inducing any act or decision of the Official to secure an improper advantage in connection with, or in any way relating to, (i) any government authorization or approval involving this Agreement or (ii) the obtaining or retention of business by either party. Each party further represents, warrants and covenants that it will not in the future offer, promise, make or otherwise allow to be made or provide any such payment and that it will take all lawful and necessary actions to ensure that no such payment is promised, made or provided in the future by any of its Personnel in connection with the performance of its obligations hereunder.
No Inducements. Each party represents, warrants and covenants that neither it, nor any of its Personnel, have provided or offered any illegal or improper bribe, kickback, payment, gift or anything of value (but excluding any reasonable and ordinary business entertainment or gifts of an unsubstantial value, that are customary in local business relationships and permitted by applicable law) to the other party or its directors, officers, employees and representatives in connection with this Agreement.