CWPS Master Service Agreement

CWPS MSA

This CWPS Master Service Agreement (this “Agreement“) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between CWPS, Inc. (“CWPS,”) located at 14111 Park Meadow Drive, Chantilly, VA 20151 and you or the entity you represent (“Client“). This Agreement takes effect when you use any of the Service Offerings (the “Effective Date“). In exchange for the covenants and promises herein, which the parties agree are sufficient consideration, the parties agree as follows:

1. GENERAL

1.1 This Agreement governs the purchase and/or lease of Equipment and Services from CWPS as set forth in the applicable Order(s), as defined below. “Equipment” means the hardware and third-party software deliverables to be acquired or contracted for by CWPS for Client. “Services” means the services to be performed by CWPS for Client.

1.2 Provisioning of Services is contingent upon Client providing CWPS with equipment, software, as well as software licenses, technical information, design documentation, and any other information or documentation reasonably required to perform the Services as specified in each Order (collectively, the “Components”). Any deadlines or requirements of CWPS shall be automatically extended if any necessary Components are not made available to CWPS through no fault of its own.

1.3 The term “Order”, as specified in this Agreement, includes but is not limited to a Statement of Work, a Service/Maintenance Order or a Warranty Order. This Agreement shall be deemed a part of each Order placed by Client, and any other Equipment or Services provided by CWPS to Client after the Effective Date shall also be governed by the terms and conditions hereof unless otherwise agreed in writing.

1.4 Client shall, whenever necessary and after receipt of reasonable notice, allow CWPS technicians access to Client equipment and facilities. Client will arrange for appropriate Client personnel to accompany CWPS technicians as needed.

2.ADDITIONAL TERMS AND CONDITIONS

2.1 This Agreement sets forth general terms and conditions. Additional or different terms and conditions may be found in relevant Orders or related documents. No such additional or different terms and conditions shall be valid to the extent they conflict with this Agreement, notwithstanding any CWPS acknowledgment or acceptance of such Order or related document.

2.2 CWPS represents and warrants the following: (a) services provided under the Agreement will be performed in a workmanlike manner in accordance with current industry standards; (b) CWPS will comply with applicable laws in the performance of the Agreement; (c) CWPS has the rights necessary to: (i) enter into this Agreement, and (ii) grant Client the rights granted hereunder; and (d) any third-party warranties associated with the Equipment, e.g. licensed software or purchased hardware, shall be in the name of Client.

2.3 Cloud Services and Infrastructure-as-a-Service Offerings.  Client acknowledges and agrees that to the extent an Order uses cloud services or infrastructure-as-a-service offerings of a third-party provider (i) CWPS will contract for such services on Client’s behalf and that Client shall be bound by such contract and all the terms and conditions of the third-party provider that relate to such cloud services or infrastructure-as-a-service offerings, and (ii) CWPS will facilitate Client’s use of such services but the third-party provider of the cloud services or infrastructure-as-a-service offerings is the actual and underlying provider of those services and owns and operates the equipment and technology used to deliver those services and CWPS cannot provide any guaranty or warranty related to the third-party provider.  In addition, Client acknowledges and agrees to sign such separate agreements of the third-party provider of cloud services or infrastructure-as-a-service offerings as the third-party provider may require or that CWPS may deem necessary, advisable or helpful in providing such services or offerings to Client.

2.3.1 Power of Attorney; Further Assurances.  Client hereby appoints CWPS as the Client’s true and lawful attorney, with full power of substitution, to do any or all of the following, in the name, place, and stead of Client, as the case may be as related to cloud services or infrastructure-as-a-service offerings of a third-party provider (i) take any action and execute any instrument that CWPS may deem necessary, advisable or helpful for the provision of such services or offerings (ii) to use, maintain, or retrieve CWPS Equipment, as applicable, and/or (iii) to cancel, maintain, transfer or retrieve software licenses, contracts or other agreements that CWPS has secured to enable Customer to use the offerings.  Customer, upon request of CWPS, will promptly deliver and execute or cause to be delivered and executed, in form and content satisfactory to CWPS, any assignment, or other document as CWPS may reasonably request in order to accomplish the purposes of Section 2.3 and this Section 2.3.1.  For the avoidance of doubt, the parties hereby acknowledge and agree that this Section 2.3.1 shall only apply to cloud services or infrastructure-as-a-service offerings of a third-party provider that Client is accessing or using pursuant to an Order with CWPS.

3. CONFLICTS PROVISION

3.1 If a conflict exists between this Agreement and any other documents related to the Parties’ relationship, the following documents prevail in priority order:

  1. This Master Service Agreement (MSA)
               B. The Order
               C. Attachments or Exhibits to an Order
               D. Other documents related to an Order

4 FINANCIAL ARRANGEMENTS

4.1 Purchase. The parties will agree upon financial arrangements for future Order(s) as specified in the applicable Order. If Client terminates this Agreement for convenience after CWPS has ordered Equipment but before CWPS delivers the Equipment to the Site (and before the Equipment packaging has been opened), Client will incur a [10%] restock fee on all equipment and software ordered. Client agrees that the burden and expense to CWPS in such instances would be difficult to assess and that the restock fee is a reasonable approximation of the damages of termination to CWPS. Once the equipment packaging has been opened, Client effectively owns the equipment and agrees that it will not be able to return the equipment or obtain a refund, and that it shall remain wholly liable for payment pursuant to the terms hereof.

4.1.1 Client acknowledges and agrees that the Equipment will be delivered to CWPS, or some other mutually agreed location, and CWPS will take possession of, or contract for, such Equipment on Client’s behalf. CWPS will not open physical Equipment packaging or initiate contracted for Equipment until Client has paid for the equipment. Payment will signify the Client's acceptance and ownership of, and responsibility for contracted Equipment, the Equipment even if it is in CWPS' possession. The Client may choose to perform a physical inventory of the equipment to its satisfaction, and sign a delivery and acceptance form and take ownership of the equipment. 

4.1.2 Client shall timely pay all amounts due to CWPS under this Agreement upon receipt of an undisputed invoice specifying the nature of the charges.

4.1.3 Client may withhold payment of particular charges that Client disputes in good faith, and in such case, Client shall advise CWPS in writing of the nature of the dispute as soon as practicable, but in no case less than 3 business days after the packaging has been opened or Client has notice of the issues, whichever is later.

4.2 Prices are exclusive of any applicable taxes unless otherwise indicated and Client shall be responsible to pay, when due, all applicable taxes associated with the purchase and/or license of Equipment and/or Services.

4.3 Lease. Client may assign its rights to purchase under this Agreement to a Lessor, (i.e. any third party lease financing organization) that Client selects, but only after CWPS approval of the Lessor, terms, and documentation. Any such lease arrangement shall include the agreement of either Client or Lessor to make progress payments to CWPS according to the Order(s) prior to the Lessor’s purchase of the Equipment.

5. TERM AND TERMINATION

5.1 The term of this Agreement shall start on the Effective Date and continue for an initial term ending on the latter of (a) twelve (12) months after the Effective Date, or (b) the date that the last surviving Order expires or terminates for any reason (collectively, the “Term”).

5.2 In the event of termination, and without limiting any other rights CWPS may have, Client shall pay CWPS (i) no less than 100% of the unpaid direct total costs incurred by CWPS in the provision of the Equipment and the performance of the Services so terminated; (ii) related winding-up costs, including storage, transport charges and fees; and (iii) all termination charges specified in the applicable Order (collectively, the “Termination Costs”).

5.3 Termination for Convenience. By written notice to CWPS, Client may terminate any Order or work governed by this Agreement, in whole or in part, for its convenience at any time prior to completion in accordance with the terms of any Order and as set forth below.

5.3.1 In the event of a termination for convenience, CWPS shall take reasonable steps to mitigate the Termination Costs due from Client including, without limitation, the immediate discontinuance of the terminated work, and the placing of no further orders for labor, material or services required under the terminated portion. CWPS agrees to take such action, as it deems reasonable or as Client may direct, for protection of property in CWPS’s possession in which Client may have acquired an interest.

5.3.2 CWPS agrees to advise Client in writing of all proposed settlements with vendors in the event of termination; and CWPS further agrees not to enter into any binding settlement until either Client has approved the proposed settlement or ten (10) days have elapsed from the date Client was first notified of such proposed settlement.

5.3.3 CWPS will provide a detailed statement of Termination Costs. Client shall be deemed to agree with said statement unless it provides CWPS with detailed written grounds for dispute of said statement within 30 days of receipt. Client shall pay CWPS the Termination Costs due under this Section within sixty (60) days after submission to Client of such total costs.

5.3.4 Any equipment that has been purchased by Client, and in CWPS’s possession at the time of termination, shall become the property of Client in its capacity as purchaser.  The parties shall use reasonable efforts to transfer to Client any Equipment that CWPS has contracted for on Client’s behalf.

5.4 Termination for Default and Cure. Either party may terminate this Agreement immediately by written notice if the other party (the “Defaulting Party”) fails to perform any material covenant or provision of this Agreement (a “Default”). Provided, however, that if the Defaulting Party contends that the Default is capable of being cured, no termination shall be effective if the Defaulting Party provides notice of its intent to cure within three (3) business days after receiving the notice of default and does, in fact, cure the default within twenty (20) days after receipt of the original notice from the non-defaulting party. In the case of any payment default, Client may respond that the failure to pay is for specific reasons related to Section 4.1.3 hereof and shall set forth said reasons with particularity…

5.5 Immediate Termination by CWPS. CWPS may immediately terminate this Agreement without opportunity for cure in the event of:

5.5.1 Any transfer or assignment of this Agreement or assignment of any licenses by Client without the prior written consent of CWPS except to a successor-in-interest to the business of Client;

5.5.2 Any transfer of the software or the documentation to any third party not permitted under the terms of the pertinent license;

5.5.3 any conduct that would constitute a violation of any local, state or federal criminal laws, in the reasonable business judgment of CWPS; Client’s becoming insolvent or committing any act of bankruptcy, which shall include, without limitation: (a) filing in any court a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of Client or of its assets; (b) proposing a written agreement for the composition or extension of its debts; (c) being served with an involuntary petition against it, filed in any insolvency proceeding, and such petition shall not be dismissed within sixty (60) days after the filing, thereof; (d) proposing or being a party to any dissolution or liquidation; or (e) making an assignment for the benefit of creditors.

5.6 Immediate Termination by Client. Notwithstanding Section 5.3 above, Client may immediately terminate this Agreement without opportunity for cure in the event of:

5.6.1 Any transfer or assignment of this Agreement without the prior written consent of Client except to a successor-in-interest to the business of CWPS or a CWPS affiliate; or

5.6.2 CWPS’s becoming insolvent or committing any act of bankruptcy, which shall include, without limitation: (a) filing in any court a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of CWPS or of its assets; (b) proposing a written agreement for the composition or extension of its debts; (c) being served with an involuntary petition against it, filed in any insolvency proceeding, and such petition shall not be dismissed within sixty (60) days after the filing, thereof; (d) proposing or being a party to any dissolution or liquidation; or (e) making an assignment for the benefit of creditors.

5.7 Post-termination Obligations. Upon termination of this Agreement, each party shall: (a) return to the other all originals, copies and extracts of the Confidential Information, (b) delete or destroy any backup of the foregoing in such receiving party’s possession or under direct or indirect control stored on magnetic or other media or on any information storage or retrieval device, whether prepared by such receiving party or by others, and (c) further certify that it no longer retains any such information, however stored, in its possession.

5.8 Survival of Rights and Obligations. Notwithstanding any termination or expiration of this Agreement, all rights and obligations including, without limitation, those pertaining to: Confidential Information; software; Warranty; and/or Indemnification, which by their nature continue beyond expiration or termination of this Agreement shall survive until each such right and/or obligation expires or terminates in accordance with its respective term.

6. INDEMNIFICATION

6.1 Each party agrees to indemnify the other party from any third-party claims (including attorney’s fees) arising out of or resulting from (a) any claim that the indemnifying party has infringed the patent, copyright, trademark, trade secret, or other proprietary right of a third party, or (b) any actual or alleged act that constitutes negligence in the performance of this agreement on the part of the indemnifying party.

6.2 The indemnification obligation under this Section shall be limited to $500,000 for 6.1(a) and $250,000 for 6.1(b).

7. ACCEPTANCE

7.1 Acceptance. Upon completion of any work under an Order, CWPS shall submit to the Client a Delivery & Acceptance Form for review and signature. Client shall ensure the proper personnel are scheduled to review each completed service or deliverable upon receipt of this notification.

7.1.1 The assigned Client personnel shall indicate their acceptance of the Service or Deliverable by signing and returning the Delivery & Acceptance Form within fifteen (15) calendar days from the presentation of the completed Service or Deliverable. Services and Deliverables will be deemed accepted if the assigned Client representative fails to respond within this fifteen-day period.

7.1.2 If a Service or deliverable is not complete or operable for any reason, Client shall provide written notification to CWPS. CWPS shall have ten (10) business days after the receipt of such notice from the Client to correct the error, provided that it is within CWPS’s scope of work to do so. Such time period to correct the error may be extended by mutual consent.

8. EQUIPMENT

8.1 Order(s) for a project will include: (i) detailed listings of the Equipment to be acquired, or contracted for, by CWPS for Client, and (ii) the Services to be performed by CWPS for Client.

8.2 CWPS may secure for Client sub-licenses or direct licenses and associated maintenance agreements for all third party software including, without limitation, the server operating system software and network software, as listed in the Order for each project.

8.3 Unless otherwise agreed, CWPS shall obtain the Equipment, and shall be responsible for delivery, installation, testing and integration of said Equipment under subsequent Orders. CWPS may not charge for its assistance in the testing and integration of the Equipment except as set forth in the Order(s).

8.4 CWPS warrants that it shall deliver good title for all physical Equipment delivered to Client under this Agreement, free from any claim, lien or encumbrance, and that all such Equipment shall be new.

9. CONFIDENTIALITY; PROTECTION OF INTELLECTUAL PROPERTY

9.1 Confidential Information. All technical, manufacturing, testing, maintenance, installation, marketing or other information of either party: (a) which is maintained as and which is of a confidential or proprietary nature; and (b) which is disclosed in writing by one party to the other and either marked “Confidential,” or at the time of disclosure is verbally notified to be Confidential, followed by written confirmation within fifteen (15) days or (c) which notwithstanding the lack of the formalities of (b) is information otherwise generally understood to be confidential and disclosed in confidence (“Confidential Information”), shall be held in confidence by the receiving party both during the term of this Agreement and after its termination until such time as such Confidential Information falls within one of the limitations identified in this Section. The receiving party shall not disclose the Confidential Information to third parties or use the Confidential Information except in accordance with, and in furtherance of, the provisions contained in this Agreement. Upon notice to the other party, one (1) archival copy may be retained in each party’s legal files provided that it is not used for any purpose other than to demonstrate compliance with this Agreement.

 9.1.1 Except as expressly permitted in this Agreement, a receiving party will not disclose or use, for its own purposes or otherwise, any Confidential Information disclosed to it by the other party including, without limitation, any trade secrets owned by either party, and the terms and conditions of this Agreement;

9.1.2 The receiving party will keep the disclosing party’s Confidential Information in the strictest confidence using the same degree of care to maintain the confidentiality of all Confidential Information of the other party in its possession or control which it uses to maintain the confidentiality of its own information of similar importance, but in no event shall it use less than reasonable care; and

9.1.3 The receiving party will only disclose such information to those of its employees or other third parties having a need to know such Confidential Information for the purposes of this Agreement and who are bound to the same extent as the receiving party is bound to maintain its confidentiality and to use it only as permitted in this Agreement.

9.2 Exceptions. Confidential Information will not include information that a receiving party can demonstrate: (a) is in or enters the public domain without breach of this Agreement; (b) was in its possession prior to first receiving it from the disclosing party; (c) was received from a third-party without restriction on disclosure and without breach of a nondisclosure obligation; (d) was developed independently of the other party’s Confidential Information; (e) was identified by the disclosing party as no longer proprietary or confidential; or (f) has been disclosed by the disclosing party to a third-party under no obligation of confidentiality. Confidential Information shall not be deemed to be in “the public domain” under this Section 9.2 merely because any part or portion of said information, in contrast to the whole or all of the particular information which is claimed not to be Confidential Information, is embodied in general disclosures or because individual features, components, or combinations thereof are now or become known to the public.

9.3 Legally Required Disclosures. In the event a receiving party is required by law, regulation or court order to disclose any of the disclosing party’s Confidential Information, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure in order to facilitate the disclosing party’s seeking a protective order or other appropriate remedy from the proper authority. The receiving party agrees to cooperate with the disclosing party in seeking such order or other remedy. The receiving party further agrees that if the disclosing party is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information which is legally required, will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information, and will provide the disclosing party with copies of such Confidential Information so disclosed. Confidential Information disclosed pursuant to this Section 9.3 shall not otherwise be deemed non-confidential until such Confidential Information falls within one of the other exceptions stated in Section 9.2.

9.4 Survival. Notwithstanding termination of this Agreement, each party’s obligations under this Section 9 shall survive such termination and continue indefinitely until the occurrence of one of the limitations specified in Section 9.2, above.

9.5 Nonexclusive Cross-licenses. Each party has a nonexclusive, nontransferable, fully paid-up, royalty-free right and license to use the other party’s Confidential Information including, without limitation, the software to the limited extent required for their respective performances and only in connection with the purposes of this Agreement.

9.6 Notice of Unauthorized Access. Each party shall advise the other in writing promptly after it learns of any unauthorized access to or use or reproduction of any Confidential Information belonging to the other, or has a reasonable basis to believe that such unauthorized access, use or reproduction has occurred.

10. LIMITATION OF LIABILITY

10.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN If A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, OR EXPENSE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND OTHER EQUIPMENT FAILURE OR MALFUNCTION OR COMMERCIAL LOSS. THE LIMITATION OF LIABILITY SPECIFIED IN THIS SECTION 10.1 SHALL APPLY FOR ALL PURPOSES OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, SECTIONS 10,2, 10.3, AND 10.4 BELOW.

10.2 CWPS SHALL HAVE NO LIABILITY FOR LOSS, DAMAGES OR EXPENSE, DIRECTLY OR INDIRECTLY, ARISING FROM CLIENT’S INABILITY TO USE OR USE OF EQUIPMENT AND/OR SERVICES, OR THIRD PARTY’S UNAUTHORIZED USE OF EQUIPMENT AND/OR SERVICES, EXCEPT WHEN SUCH LOSS, DAMAGE OR EXPENSE IS DUE TO THE GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF CWPS OR ITS AGENTS.

10.3 SUBJECT TO THE ADDITIONAL LIMITATIONS AS SPECIFIED IN SECTION 6, CWPS’S TOTAL LIABILITY, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR WARRANTY, WILL NOT EXCEED ANY AMOUNTS PAID BY CLIENT TO CWPS FOR THE ORDER, OR WORK RELATED THERETO THAT OCCURRED AFTER THE DATE OF ITS ACCEPTANCE BY CWPS. 10.4 CLIENT’S TOTAL LIABILITY, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR WARRANTY, WILL NOT EXCEED ANY AMOUNTS PAID OR PAYABLE BY CLIENT TO CWPS FOR THE EQUIPMENT AND/OR SERVICES PURSUANT TO THIS AGREEMENT.

  1. CLAIMS AND SETTLEMENT OF DISPUTES

11.1 Negotiation. The parties shall make reasonable efforts to reach a negotiated resolution of any claim or dispute arising out of the interpretation, application, implementation or performance of this Agreement. In the event the parties are unable to resolve any such claim or dispute, it shall be resolved as set forth below.

11.2 Governing Law; Jurisdiction; Venue; Jury Trial. This Agreement and the performance thereof shall be governed by, construed, interpreted and enforced in accordance with the laws of the Commonwealth of Virginia (“Virginia”) without reference to its principles of conflicts of law. All suits, proceedings, and other actions relating to, or arising out of, this Agreement and any related Orders shall be filed exclusively in the Circuit Court for Fairfax County, Virginia or the United States District Court for the Eastern District of Virginia, and each party agrees to the exclusive personal and subject matter jurisdiction of those forums. Each Party hereby irrevocably waives all rights to trial by jury in any such proceeding(s). The party that substantially prevails in the litigation, in the sole discretion of the Court, shall be entitled to recover its reasonable attorney’s fees and costs.

12. MISCELLANEOUS

12.1 Assignability; Benefit; Subcontracting.

12.1.1 This Agreement may not be assigned or otherwise transferred by CWPS, in whole or in part, without the express prior written consent of Client, in its sole discretion except to a successor-in-interest to the business of CWPS.

12.1.2 All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the Parties hereto and shall inure to the benefit of their respective successors and assigns of each party.

12.1.3 Nothing in this Agreement shall be construed to create any rights or obligations except between the Parties hereto, and no person or entity shall be regarded as a third party beneficiary of this Agreement.

12.1.4 Nothing contained herein or in any agreement between CWPS and a subcontractor or vendor shall create: (a) any contractual relationship between Client and any subcontractor at any tier; or (b) any third-party beneficiary rights in any subcontractor at any tier. 12.1.5 CWPS shall at all times be responsible for the work and conduct of its subcontractors at any tier while performing work and/or services pursuant to this Agreement and shall ensure that its subcontractors comply with all applicable terms and conditions of this Agreement.

12.2 Use of Client Name or Marks. CWPS shall not use any mark or trade name of Client or represent, directly or indirectly, that any product or any service provided by CWPS has been approved or endorsed by Client without the prior written approval of Client.

12.3 Public Release of Information. CWPS shall obtain the prior written approval of Client concerning the content and timing of news releases, articles, brochures, advertisements, speeches and other information releases concerning the work performed or to be performed hereunder by CWPS, its subcontractors or employees or consultants of either. CWPS agrees to give Client reasonable advance time for review of any material submitted to Client for approval. For promotional purposes only, CWPS may, with Client’s prior approval of the wording, timing and context thereof, disclose that Client has obtained products or services from CWPS.

12.4 Notices. Any notice hereunder by either party shall be given by personal delivery or by sending such notice by certified mail, return-receipt requested, addressed or faxed, as the case may be, to the other party at its address set forth above or at such other address designated by notice in the manner provided in this subsection. Such notice shall be deemed to have been received upon the date of actual delivery if personally delivered or, in the case of mailing, two (2) days after deposit with the United States mail, or, in the case of facsimile transmission, when confirmed by the facsimile machine report.

12.5 Force Majeure.

12.5.1 Acts of God, or of the public enemy, war, terrorism, acts of the Government in its sovereign capacity, fires, floods, strikes, epidemics, quarantine restrictions, freight embargoes, power failures, strikes or other labor disputes, water, civil disturbances, inability to secure raw materials or transportation facilities, fuel or energy shortages, acts or omissions of communications carriers, or for any other reason beyond the reasonable control of CWPS which cause failure to perform hereunder and, in every case, are beyond the reasonable control and without the fault or negligence of CWPS, shall constitute an excusable delay, if written notice thereof is given to Client within twenty (20) days after such event shall have occurred.

12.5.2 In the event of delay resulting from any of the above causes, only the applicable delivery requirements will be extended accordingly on a day-to-day basis only to the extent such party’s obligations related to that performance so prevented, restricted or interfered with; provided, however, that the party so delayed shall use its best efforts to avoid or remove such causes of nonperformance with both parties proceeding only after such causes are removed or ceased. In no event shall Client be liable for any additional payments or costs to CWPS as a result of any force majeure event.

12.5.3 Should any such delay extend for thirty (30) days or more, Client, at its sole option, may terminate this Agreement.

12.6 Amendments. No change, alteration, modification, or addition to this Agreement shall be effective unless it is in writing, expressly mentions an intent to modify this Agreement and the reason for doing so, and is properly executed by the parties hereto.

12.7 Waiver. The failure of either party to exercise any of its rights under this Agreement for a breach thereof shall not be deemed to be a waiver of such rights nor shall the same be deemed to be a waiver of any subsequent breach.

12.8 Headings. The headings of the Sections and subsections hereof are for convenience only and do not in any way limit or amplify the terms and conditions of this Agreement.

12.9 Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.

12.10 Context. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of names and pronouns shall include the plural and vice-versa.

12.11 Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remainder of this Agreement or the validity or enforceability of this Agreement, including that provision. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible, and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.

12.12 Minimum Levels of Insurance. During the term of this Agreement, CWPS will keep in full force and effect insurance policies covering: (i) General Liability with $1,000,000 per occurrence and $2,000,000 aggregate naming the Client as additional insured and endorsed to provide primary and non-contributory provision for the insurance carried by CWPS, and including a severability of interests clause; (ii) Workmen’s Compensation as required by statute, with a waiver of subrogation in favor of the Client, and Employer’s Liability with $1,000,000 per accident, $1,000,000 disease policy limit, and $1,000,000 disease per employee; (iii) Professional Liability/Errors & Omissions with $2,000,000 per occurrence and $2,000,000 aggregate; and (iv) Employment Practices Liability with $1,000,000 per occurrence/aggregate.

12.13 Independent Contractor. The parties acknowledge and agree that in the performance of this Agreement, CWPS is at all times acting and performing as an independent contractor and that no relationship in the nature of partnership, joint venture or employment is created by this Agreement.

12.14 Complete Agreement. This Agreement: (a) is the complete agreement of the parties concerning the subject matter hereof and supersedes any prior and contemporaneous, oral and/or written, representations, discussions or agreements with respect to such subject matter; and (b) was negotiated by the Parties and, therefore, shall be construed fairly in accordance with the plain meaning of its terms, regardless of which party was primarily responsible for preparation and drafting of this Agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect the obligations of the parties or the terms and conditions of this Agreement.

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