This Master Service Agreement (“Agreement”) is entered into by and between the customer named above (“Customer”) and WPG Consulting LLC. (“WPG CONSULTING LLC”). Customer has, and is deemed to have, accepted to be bound by this Agreement and the attached Service Agreements (the “Service Agreements”), including all terms and conditions incorporated therein or herein by reference upon Customer signing a service order document (“Service Order”) referencing this Agreement. Additional services may be provided at any time by signing additional Service Orders at any time.
- Services. Subject to the terms and conditions of the Agreement, and in consideration of the payments for such Services, Customer has agreed to purchase and WPG CONSULTING LLC shall provide the Services listed on each Service Order attached or making reference hereto and more fully described in the applicable Service Agreement, each of which Service Order and Service Agreement is incorporated herein by this reference.
WPG CONSULTING LLC’s Obligations
- Compliance with laws. WPG CONSULTING LLC will comply with, and ensure its personnel comply with: (i) all laws, regulations, and orders issued by courts or other governmental bodies of competent jurisdiction and applicable to the provision of the Services; and (ii) any reasonable Customer security policies applicable to the provision of the Services.
- Access Right. Customer will in a timely manner provide WPG CONSULTING LLC with timely information and access to any property and equipment that Customer controls as reasonably required to provide the Services, and Customer will obtain for WPG CONSULTING LLC, at Customer’s expense, timely access to property and equipment that Customer does not control (other than public property) as reasonably required to provide the Services. Access rights include the right to construct, install, repair, maintain, replace, and remove access lines and network facilities, as well as to use ancillary equipment space within a building, as necessary to provide the Services. Customer will furnish any conduit holes, wireways, wiring, plans, equipment, space, power/utilities, and other items reasonably required to perform installation of the Services, and obtain any necessary licenses, permits, and consents (including easements and rights-of-way). Customer will have the site ready for WPG CONSULTING LLC to perform its work according to any mutually agreed upon schedules. Notwithstanding anything to the contrary herein, WPG CONSULTING LLC shall have no liability for any delay or failure in its performance to the extent caused by any delay or failure of Customer, including, but not limited to, the failure to provide WPG CONSULTING LLC with prompt access.
- Safe Work Environment. Customer will ensure that the location at which WPG CONSULTING LLC installs, maintains, or provides Services is a suitable and safe working environment, free of Hazardous Materials. “Hazardous Materials” means any substance or material capable of posing an unreasonable risk to health, safety, or property or whose use, transport, storage, handling, disposal, or release is regulated by any law related to pollution, protection of air, water, or soil, or health and safety. WPG CONSULTING LLC does not handle, remove, or dispose of Hazardous Materials, and WPG CONSULTING LLC has no obligation to perform work at a location that does not comply with this Section 3.b. WPG CONSULTING LLC will not be liable for any Hazardous Materials.
- Compliance with laws. Customer shall comply with all laws, regulations, and orders issued by courts or other governmental bodies of competent jurisdiction and applicable to the Services and its use of the Services.
- Acceptable Use Policy. Customer will, and ensure its Users (as defined below) will, comply with WPG CONSULTING LLC’s Acceptable Use Policy (“AUP”) as set forth at https://www.wpgc.io/legal/AUP or other locations that WPG CONSULTING LLC may designate. WPG CONSULTING LLC may revise the AUP or any Service Agreements at any time upon reasonable advance written notice to Customer. For the purposes of this Agreement, a “User” is anyone who uses or accesses any Services provided to Customer. Customer will cause Users to comply with this Agreement and the AUP, and Customer acknowledges and agrees that Customer is responsible for all Users’ use of any Services, unless expressly provided to the contrary in applicable Service Agreements.
- Utilities. Customer shall procure and make available to WPG CONSULTING LLC, at Customer’s locations where any equipment is necessary for the provision of Services, at Customer’s sole cost and expense, adequate space, continuous electrical service (AC power), and HVAC for such equipment. Unless support for such equipment is included in the Services, Customer shall be solely and exclusively responsible for all maintenance, configuration, management, repair and/or support of such equipment.
Fees; Payment Terms
- Customer shall pay the fees and charges for Services as set forth in the applicable Service Order and in accordance with this
Section 4. WPG CONSULTING LLC may change its fees and charges from time to time upon reasonable advance written notice to Customer.
- Statement of Charges. Customer will provide WPG CONSULTING LLC with all information requested on each Service Order, including a valid e- mail address and billing address. WPG CONSULTING LLC will post and transmit all of its fees and charges electronically to the contact name and e-mail address specified in the applicable Service Order. Customer agrees that all payments are due upon posting to the Customer’s account unless specified otherwise in the applicable Service Agreement.
- Late Fees. Unless otherwise provided on the applicable Service Order, if Customer fails to pay any undisputed amount within 30 days from the date any fees or charges are posted to the Customer’s account, , in addition to all other remedies that may be available: (a) WPG CONSULTING LLC may charge interest on the past due amount at the rate of 1% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (b) Customer shall reimburse WPG CONSULTING LLC for all costs incurred by WPG CONSULTING LLC in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees.
- Taxes. Customer will pay all applicable federal, state, municipal, local, or other governmental sales, use, excise, value-added, or other taxes, tariffs, access fees, or other fees or charges now in force or enacted in the future, that arise from or as a result of, the Services or equipment (collectively, “Taxes”). Taxes are in addition to charges for Services. Taxes are due for any period of time a Service Agreement is or was in effect, even if the WPG CONSULTING LLC fails to accurately or correctly bill the Customer. If Customer claims to be exempt from payment of any Taxes, Customer must provide the WPG CONSULTING LLC with proof of such exemption acceptable to WPG CONSULTING LLC and WPG CONSULTING LLC will continue to collect Taxes from Customer until such exemption is established to WPG CONSULTING LLC’s satisfaction.
- Billing Disputes. All disputes of any kind must be reported in writing to WPG CONSULTING LLC no later than 30 days from the date the disputed charge was posted to the Customer’s account. Unless disputed within said 30-day period, all charges posted to the Customer’s account are deemed to be correct and the Customer waives any claim after said 30-day period. Submission of a written dispute notice.
by the Customer shall not relieve the Customer of its obligation to timely pay all amounts.
- Credits and Refunds. Credits, refunds, or payments must be used or claimed within one year from the date of such credit, refund, or payment or shall be deemed to have been earned and correctly applied or paid.
- No Deductions or Setoffs. Except as expressly provided in this Section 4, all amounts payable to WPG CONSULTING LLC under this Agreement shall be paid by Customer to WPG CONSULTING LLC in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
- Confidential Information means: (i) written information the parties share with each other in connection with this Agreement or in anticipation of providing Services under this Agreement, but only to the extent such written information is marked as Confidential Information; and (ii) except to the extent required by applicable law or regulation, the terms of this Agreement and any pricing or other proposals. Confidential Information will not include any information that: (x) is independently developed by the receiving party (“Receiving Party”); (y) is lawfully received by the Receiving Party free of any obligation to keep it confidential; or (c) becomes generally available to the public other than by breach of this Agreement.
- Obligations. For a period of three years following a party’s receipt of any Confidential Information of the other party (the “Disclosing Party”), and except as provided in Section 5.c below, each party agrees: (i) not to disclose or otherwise make available such Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its officers, employees, consultants and legal advisors who have a “need to know,” who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 5; (ii) to use such Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services; and (iii) to notify the Disclosing Party in the event it becomes aware of any loss or disclosure of such Confidential Information of Disclosing Party. Notwithstanding the foregoing, a party’s obligations under this Section 5.b with respect to trade secrets, including without limitation, software, shall remain in effect for as long as such information remains a trade secret under applicable law.
- Subpoenas and other Legal Requests for Information. WPG CONSULTING LLC may provide information and respond to law enforcement requests, subpoenas, court orders, and the like, for any purpose WPG CONSULTING LLC determines is appropriate in its sole discretion, including to protect WPG CONSULTING LLC, WPG CONSULTING LLC’s rights and/or property, and in the case where failure to disclose the information may lead to personal injury or loss of property of the Customer or others.
- Non-Solicitation. Neither WPG CONSULTING LLC nor Customer shall knowingly, during the Term of this Agreement and for a period of one year thereafter, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other party during the Term, without the prior written consent of such other party. The remedies for violation of the terms of this section of the Agreement include, but are not limited to: direct and indirect damage as a result of lost revenue, hiring and training of replacement employees, related attorney fees and court costs. Any amount due shall constitute liquidated damages and shall not constitute or be deemed a penalty.
Disclaimer; Limitations of Liability
- Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, WPG CONSULTING LLC DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY (I) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) ARISING BY USAGE OR TRADE PRACTICES, COURSE OF DEALING OR COURSE OF PERFORMANCE; (III) THAT THE SERVICES ARE ERROR FREE, UNINTERRUPTED OR SECURE FROM THIRD- PARTY ATTACK; AND (IV) THAT SERVICES ARE FREE FROM DEFECTS, FIT TO BE SOLD, WILL PERFORM IN A PARTICULAR MANNER OR SPEED OR TO A PARTICULAR STANDARD OR ANY QUALITY OF SERVICE. FURTHER, WPG CONSULTING LLC MAKES NO REPRESENTATION OR WARRANTY THAT TELEPHONE CALLS OR OTHER TRANSMISSIONS WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING CALLS TO 911 OR ANY SIMILAR EMERGENCY RESPONSE NUMBER), OR GUARANTEE REGARDING NETWORK SECURITY, THE ENCRYPTION EMPLOYED BY THE SERVICES, THE INTEGRITY OF ANY DATA THAT IS SENT, BACKED UP, STORED OR SUBJECT TO LOAD BALANCING, OR THAT WPG CONSULTING LLC’S SECURITY PROCEDURES WILL PREVENT THE LOSS OR ALTERATION OF, OR IMPROPER ACCESS TO CUSTOMER’S DATA AND CONFIDENTIAL INFORMATION.
- Exclusions. WPG CONSULTING LLC SHALL NOT BE LIABLE:
- FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXPECTANCY, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND OR INCREASED COST OF OPERATIONS, DELIVERY OF SERVICES, OR DELAY IN INSTALLATION OF SERVICES.
- FOR ANY DAMAGES ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT, OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; SERVICES DEFECTS, SERVICES LEVELS, DELAYS, OR INTERRUPTIONS (EXCEPT FOR LIABILITY FOR SUCH EXPLICITLY SET FORTH IN THIS AGREEMENT); ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS (INCLUDING 911 CALLS OR ANY SIMILAR EMERGENCY RESPONSE NUMBER); LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF
CUSTOMER’S, ITS AFFILIATES, USERS, OR THIRD PARTIES’ APPLICATIONS, CONTENT, DATA, PROGRAMS, CONFIDENTIAL INFORMATION, NETWORK OR SYSTEMS.
- Limitation of Liability. WPG CONSULTING LLC’S ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR DAMAGES ARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS,
ERRORS OR DEFECTS IN THE SERVICES, AND NOT CAUSED BY CUSTOMER’S NEGLIGENCE, SHALL IN NO EVENT EXCEED THE APPLICABLE CREDITS SPECIFIED IN A SERVICE PUBLICATION OR SERVICE AGREEMENT, OR IF NO CREDITS ARE SPECIFIED, ANY AMOUNT EQUIVALENT TO THE PROPORTIONATE CHARGE TO CUSTOMER FOR THE PERIOD OF SERVICES DURING WHICH SUCH MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, OR DEFECT IN THE SERVICES OCCURS AND CONTINUES. IN NO EVENT SHALL ANY OTHER LIABILITY ATTACH TO WPG CONSULTING LLC.
- THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT DAMAGES WERE FORESEEABLE. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
- Each party will defend, indemnify, and hold the other party, its affiliates, agents, and contractors harmless against liabilities, costs, and expenses, including reasonable attorneys’ fees (collectively, “Damages”), resulting from third-party claims resulting from personal injury or death to persons or loss or damage to personal tangible property, to the extent such Damages were proximately caused by the negligence or willful misconduct of the indemnifying party; provided, however, the foregoing indemnification will not apply to any claims made by employees that are covered under applicable workers’ compensation laws. Customer will defend, indemnify, and hold WPG CONSULTING LLC, its affiliates, agents, and contractors harmless against Damages arising from or related to (i) the use, modification, or resale of the Services by Customer or its Users; or (ii) any violation of the AUP.
- Procedure. The indemnified party under this Section 8: (i) must notify the indemnifying party in writing promptly upon learning of any claim, suit, or other action for which indemnification may be sought, provided, that failure to do so shall have no effect except to the extent the indemnifying party is prejudiced thereby; (ii) shall have the right to participate in such defense or settlement with its own counsel and at its sole expense, but the indemnifying party shall have control of the defense or settlement, provided, that in the event that any settlement materially and adversely affects the price or performance of Services in use by Customer and WPG CONSULTING LLC is unable to provide to Customer, at no additional cost to Customer, alternative Services
suspend (and later terminate) the affected Services, and if the breach implicates the entire Agreement, suspend (and later terminate) the entire Agreement.
- (A) becomes insolvent or admits its inability to pay its debts generally as they become due; (B) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (C) is dissolved or liquidated or takes any corporate action for such purpose; (D) makes a general assignment for the benefit of creditors; or (E) has 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.
- Termination by WPG CONSULTING LLC. WPG CONSULTING LLC may immediately terminate or suspend an affected Service, and if the activity implicates the entire Agreement, terminate the entire Agreement, immediately by providing Customer with as much advance notice as is reasonably practicable under the circumstances if Customer: (i) commits a fraud upon WPG CONSULTING LLC; (ii) utilizes the Services to commit a fraud upon a third party; (iii) unlawfully uses the Services; (iv) abuses or misuses WPG CONSULTING LLC’s network or Services; or (v) interferes with a third party’s use of WPG CONSULTING LLC’s network or services.
- Materially Adverse Change. If WPG CONSULTING LLC revises a Service and the revision has a materially adverse impact on Customer, and WPG CONSULTING LLC does not affect revisions that remedy such materially adverse impact within 30 days after notice from Customer, then Customer may, as Customer’s sole remedy, elect to terminate the affected Service Components on 30 days’ notice to WPG CONSULTING LLC, given not later than 90 days after the effective date of the WPG CONSULTING LLC revisions. A revision to a Service will not be considered materially adverse to Customer if it changes prices that are not fixed, if the price change was mandated by a governmental authority, or if the change affects a charge imposed under Section 4.d (Taxes).
- Effect of Termination. Upon expiration or termination of this Agreement or any Service for any reason:
- Termination by either party of the Services or the Agreement does not waive any other rights or remedies a party may have under this Agreement. Termination or suspension of a Service will not affect the rights and obligations of the parties regarding any other Service.
Service Specific Termination and Termination Charges.
that meet Customer’s reasonable business needs, Customer shall be permitted to terminate the affected Service without liability upon thirty
(30) days’ prior written notice to WPG CONSULTING LLC; and (iii) shall reasonably cooperate with the defense, at the indemnifying party’s expense.
Term; Termination; Effect of Termination.
- Term. The term of this Agreement shall begin on the “Effective Date” listed on the earliest Service Order signed by Customer and continue until all Services have been completed unless terminated as set forth herein (the “Term”).
- Termination. In addition to any termination provisions of an applicable Service Agreement, either party may terminate this Agreement and/or one or more Services and applicable Service Agreements, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
- materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, including without limitation, nonpayment of fees, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach. Notwithstanding the foregoing, if Customer is in breach, WPG CONSULTING LLC may elect to
Refer to the applicable Service Agreement for termination
- The rights and obligations of the parties set forth in this Section 9.e and Section 5, Section 6, Section 7, Section 9, Section 11, and Section 12, and any right or obligation of the parties in this Agreement which, by its nature, should survive
termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
- Insurance. Customer will maintain insurance on any equipment rented, loaned, or otherwise provided to Customer under the Services. Customer shall provide WPG CONSULTING LLC with certificates of insurance evidencing the coverage required under this Section 10 and the value the equipment and naming WPG CONSULTING LLC Inc. as Loss Payee.
- Import/Export Control. The parties acknowledge that equipment, Services, software, documentation, technical information, and other materials provided under this Agreement may be subject to import and export laws, conventions, or regulations, and any use or transfer of the equipment, products, software, and technical information must be in compliance with all applicable laws, conventions, and regulations. The parties will not use, distribute,
transfer, or transmit such equipment, Services, software, documentation, technical information, or other materials (even if incorporated into other products) except in compliance with such laws, conventions, and regulations. Customer, not WPG CONSULTING LLC, is responsible for complying with such laws, conventions, and regulations for all information, equipment, software, and other materials transmitted between countries using the Services.
- Force Majeure. Except for payment of amounts due as outlined in the applicable Service Agreement, neither party will be liable for any delay, failure in performance, loss, or damage because of fire, explosion, cable cuts, power blackout, earthquake, flood, strike, embargo, labor disputes, acts of civil or military authority, war terrorism, acts of God, acts of a public enemy, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond such party’s reasonable control.
- Trademarks and Service Marks. The Customer acknowledges and agrees that the Marks (as defined below) are the sole and exclusive property of WPG CONSULTING LLC and that nothing herein conveys any interest in the Marks to the Customer and the Customer may not use or display the Marks. The License does not include the right to use Marks. “Marks” shall mean any or all of WPG CONSULTING LLC’s trade name, logo, trademark, trade device, service mark, symbol, code or specification, or any abbreviation, contraction, or simulation thereof. This Agreement is not a trademark or service mark license and does not create a franchise.
- Marketing. Customer acknowledges that WPG Consulting LLC from time to time may use the technology solution provided to Customer in marketing and reference materials for promotional purposes. Customer acknowledges that such marketing and reference materials may contain Customer’s name, image, and likeness.
- Amendment; Waiver. Any supplement to, modification, or waiver of any provision of this Agreement must be in writing and signed by authorized representatives of both parties. A waiver by either party of any breach of this Agreement will not operate as a waiver of any other breach of this Agreement. No failure to exercise, or delay in exercising, any right, 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.
- Assignment and Subcontracting. Except as otherwise provided in this Section 12.e, this Agreement may not be assigned by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed). WPG CONSULTING LLC may, without Customer’s consent, assign in whole or relevant part, its rights and obligations under this Agreement to a third party, or subcontract to a third party, work to be performed under this Agreement, but WPG CONSULTING LLC will in each case remain financially responsible for the performance of such obligations. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Severability. If any portion of this Agreement is found to be invalid, illegal, or unenforceable, or if applicable law mandates a different interpretation or result, the remaining provisions will remain in effect and the parties will negotiate in good faith to substitute for such invalid, illegal, or unenforceable provision a mutually acceptable provision consistent with the original intent of the parties.
- Injunctive Relief. Except as expressly provided herein, nothing in this Agreement is intended, or should be construed, to limit a party’s right to seek preliminary or permanent injunctive relief from a court of competent jurisdiction for a breach of any provision of this Agreement.
- Legal Action. Any legal action arising in connection with this Agreement must be filed within 3 years after the cause of action accrues or it will be deemed time-barred and waived. The parties waive any statute of limitations to the contrary.
- Notices. All notices required under this Agreement will be delivered in writing to the recipient’s contact designated on the attached Service Order, or to such other address as designated in writing from time to time. Notices shall be delivered by internationally recognized overnight courier, certified or registered mail, or email and will be effective upon receipt or when delivery is refused, whichever occurs sooner.
- Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles, except to the extent a regulatory agency with jurisdiction over the applicable Services applies a different law. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of Buffalo and County of Erie, 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.
- No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
- Relationship of the Parties. Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employee/employer or agency relationship. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
- Representation on Authority of Parties/Signatories. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.
- Entire Agreement. This Agreement, together with all Service Orders, Service Agreements, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Service Agreement, the following order of precedence shall govern: (a) first, the applicable Service Agreement; (b) second, this Agreement; and
(c) third, the AUP.