Effective as of 22-September-2009
PRECISE SOFTWARE SOLUTIONS, INC. AND/OR ITS AFFILIATES (“PRECISE”) IS WILLING TO PROVIDE SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE LICENSED SOFTWARE (REFERENCED BELOW AS “CUSTOMER”) ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS OF THIS MASTER SERVICES AGREEMENT (“AGREEMENT”).
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND PRECISE. BY CLICKING THE “I AGREE” OR “YES” BUTTON, OR OTHERWISE INDICATING ASSENT, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF CUSTOMER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE “I DO NOT AGREE” OR “NO” BUTTON OR OTHERWISE INDICATE REFUSAL. UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS WILL HAVE THE MEANING GIVEN IN THE “DEFINITIONS” SECTION OF THIS AGREEMENT AND SUCH CAPITALIZED TERMS MAY BE USED IN THE SINGULAR OR IN THE PLURAL, AS THE CONTEXT REQUIRES.
1. Definitions. Capitalized terms shall be defined as set forth below or elsewhere in this Agreement.
(a) “Customer Materials” means any data or materials, provided by Customer, that are used in connection with the Services.
(b) “Deliverable(s)” means the items to be delivered to Customer in connection with Services Precise performs pursuant to this Agreement and as set forth in an applicable Statement of Work.
(c) “Services” means the professional consulting services performed by Precise for Customer pursuant to this Agreement and a Statement of Work. The schedule for Services shall be agreed upon by the Parties, subject to availability of Precise personnel, and reflected in the SOW.
2. Payment and Taxes.
(a) Invoicing and Payment. Payment is due thirty (30) days from the date of invoice and prior to Precise’s commencement of the Services. All payments are non-refundable. Customer agrees to pay a finance charge equal to the lesser of one-and-a half percent (1.5%) per month or the maximum amount permitted by law on all past due amounts.
(b) Taxes. All prices and payments in this Agreement are exclusive of all taxes, and Customer agrees to pay all national, state and local sales, use, value added, withholding and other taxes, customs duties and similar tariffs and fees based on the Services provided hereunder, other than taxes imposed on Precise net income. To the extent required by law, Precise agrees to pay for all employment taxes, including, but not limited to FICA and income withholding taxes (together with any fines, penalties, assessments or other such amounts) due hereunder as a result of, or in connection with, Precise's performance of this Agreement.
(c) Proposals. Unless otherwise specifically agreed, each Party shall bear its own costs in evaluating and drafting proposals for Customer projects.
3. Performance of Services.
(a) Statements of Work. Each Services project Precise undertakes shall be described in statements of work (each a “Statement of Work” or “SOW”) setting forth the agreed upon scope of the Statement of Work, and estimated pricing and payment terms and, if applicable, project schedule, Deliverables, Services and estimated delivery dates. Both parties shall execute each Statement of Work and each is incorporated into this Agreement. If there is a conflict between the terms set forth in this Agreement and a Statement of Work, the terms set forth in the applicable Statement of Work will control.
(b) Changes to Statement of Work. Customer or Precise may request changes to the scope of a Statement of Work pursuant to the terms set forth in a Statement of Work, to be mutually agreed upon by the Parties. Subject to this Section 3(b), any changes to the scope of a Statement of Work shall result in a change order to such Statement of Work or a new Statement of Work. Notwithstanding the foregoing, if there are any changes to the scope of a Statement of Work and the changes result in an increase in the fees up to ten thousand dollars ($10,000.00) or ten (10) percent of the estimated total cost, whichever is less, (“Additional Services”) then Precise will continue to provide the Services, including the Additional Services, pursuant to the then current Statement of Work without the need to execute a change order or a new Statement of Work. Customer agrees to pay Precise for any applicable Additional Services pursuant to the then current Statement of Work.
(c) Delivery and Cooperation. Customer acknowledges that Customer’s cooperation is essential to the timely performance of the Services. Customer will, to the extent required in connection with the performance of the Services: (i) provide Precise with any necessary Customer Materials; (ii) provide Precise with any necessary access to Customer’s personnel, facilities or data; (iii) cause the appropriate personnel to cooperate with Precise as required for Precise to provide the Services, including responding promptly to questions or issues; and (iv) make all payments when due. Customer’s delay or failure to do so may delay the estimated delivery schedules set forth in the Statement of Work. If Customer fails to do any of the foregoing, both parties will cooperate in good faith to develop a revised written delivery schedule and written Statement of Work or change order signed by both parties with new pricing.
(d) Place of Performance. Precise will adhere to Precise’s corporate travel policy and provide a copy of Precise’s corporate travel policy, if requested by Customer, unless other agreements are made prior to undertaking a project. Services to be provided on-site at Customer’s facilities will be scheduled in advance by agreement of both parties. Both parties will use reasonable efforts to accommodate any requested changes in the scheduled dates for on-site Services, subject to the availability of appropriate personnel.
(e) Qualified Personnel. Precise will provide all Services in accordance with current industry standards and practices using qualified personnel with the necessary skills, qualifications and experience to provide the Deliverables or Services in accordance with the applicable Statement of Work. All personnel providing Services will be Precise employees acting within the scope of their employment and under obligation to assign all rights in the Deliverables or Services to Precise, or will be independent contractors under written obligation to assign all such rights to Precise.
(f) Subcontracting. If Precise cannot provide the number of qualified Precise consultants required to perform the Services or Deliverables, or a replacement Precise consultant, Precise Project Manager (as defined in an applicable SOW) shall promptly so inform Customer Project Manager (as defined in an applicable SOW). Precise may use a third party contractor rather than its own consultants to perform Services provided that Precise's agreement with the third party contractor is consistent with the terms of this Agreement and any related nondisclosure and/or confidentiality agreement.
4. Term, Termination and Expiration.
(a) Term and Termination. The term of this Agreement shall commence upon the Effective Date and continue unless earlier terminated as provided herein (“Term”). Precise may terminate this Agreement if Customer fails to materially comply with any of the terms and conditions hereof and Customer fails to correct such non-compliance within thirty (30) days following written notice. Failure to make timely payments is a material breach of this Agreement. Subject to applicable law, Precise also may terminate this Agreement or any active Statements of Work without prior notice or Customer’s consent if: (i) a receiver is appointed for Customer or Customer’s property; (ii) Customer makes an assignment for the benefit of Customer’s creditors; (iii) any proceedings are commenced by, for or against Customer under any bankruptcy, insolvency or debtor's relief law; or (iv) Customer commences steps to liquidate or dissolve. Termination of this Agreement shall also terminate all then current Statements of Work.
(b) Termination of Statements of Work. Customer may terminate any Statement of Work for any reason upon thirty (30) days prior written notice to Precise. If any particular Statement of Work is terminated for any reason, after receiving thirty (30) days prior written notice from Customer, then Precise shall deliver the work completed on the Deliverables then in process. Customer will not be entitled to any refund of amounts previously paid under a Statement of Work if Customer elects such early termination. Further, a Party may terminate a SOW if the other Party is in material breach of the SOW and has not cured the breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching Party has commenced cure during the thirty (30) day notice period and pursues cure of the breach in good faith.
(c) Effect Upon Termination. Except for termination for an uncured breach by Customer of its payment obligations hereunder, if a SOW is terminated, Precise shall promptly deliver copies of all complete and incomplete Deliverables to Customer. The Parties’ rights and obligations under this Section and the rest of this Agreement, as well as any outstanding obligations to pay any fees, shall survive termination of this Agreement and/or any SOW.
(d) Expiration of Statements of Work. Unless otherwise set forth in the Statement of Work, the Parties agree the Statement of Work will expire twelve (12) months from the effective date of the Statement of Work. The Parties agree the expiration of a Statement of Work will terminate Precise’s obligations and responsibilities set forth in said Statement of Work.
5. Ownership and Retention.
(a) Ownership Rights. Subject to Precise’s rights in Precise Information and Precise Derivative Work as each are defined below, all deliverables created specifically for and provided to Customer by Precise under an SOW will, upon final payment, become the property of Customer for Customer’s internal business purposes. Notwithstanding any provisions to the contrary in this Section 5(a), any inventions, designs, intellectual property or other derivative works of Precise Information, as defined below, will vest in and be the exclusive property of Precise (“Precise Derivative Work”). Any inventions, designs, intellectual property or other derivative works of Customer Information, as defined below, will vest in and be the exclusive property of Customer (“Customer Derivative Work”).
(b) Pre-Existing Work. Any pre-existing proprietary or Confidential Information of Precise or it’s licensors used to perform the Services, or included in any Deliverable, including but not limited to software, appliances, methodologies, code, templates, tools, policies, records, working papers, know-how, data or other intellectual property, written or otherwise, including derivative works will remain the exclusive property of Precise and its licensors (collectively, “Precise Information”). To the extent that Precise incorporates any Precise Information into any deliverable, Precise hereby grants to Customer a non-exclusive, non-transferable license to use such Precise Information at no additional charge solely for Customer’s internal business purposes, in accordance with the limitations set forth in this Agreement and any applicable SOW. Any Customer’s pre-existing information, including but not limited to any Customer’s proprietary and Confidential Information of a similar nature to Precise Information provided to Precise by Customer will remain the exclusive property of Customer or its licensors (“Customer Information”).
(c) Retention. Customer acknowledges that Precise provides similar services to other customers and that nothing in this Agreement will be construed to prevent Precise from carrying on such business. Precise has the right to retain and use copies of the Deliverables, provided, however, that nothing in this Agreement will allow Precise to distribute, disclose or create derivative works of Customer Information. Nothing in this Agreement will allow Customer to distribute, disclose or create derivative works of Precise Information.
6. Confidential Information.
(a) “Confidential Information" means (i) a party’s proprietary technology or computer software in all versions and forms of expression, whether or not the same has been patented or the copyright thereto registered, is the subject of a pending patent or registration application, or forms the basis for a patentable invention (collectively the "Proprietary Technology"); (ii) manuals, notes, documentation, technical information, drawings, diagrams, specifications, formulas or know-how related to any of the Proprietary Technology; (iii) information regarding current or proposed products, customers, contracts, business methods, financial data or marketing data, financial results and projections, company and market strategy, product roadmaps, product and competitive sales analysis and plans, product or marketing plans, pricing plans or structures, personnel and recruiting matters, and future releases; and (iv) offers or proposals which are provided by a Discloser, including, but not limited to, the fees charged by Discloser and such Confidential Information is either (1) in tangible or other form and labeled “confidential” or the like, or (2) in a non-tangible form, including, but not limited to, oral information and is followed up within two (2) weeks in a tangible form that is appropriately labeled.
(b) A party receiving Confidential Information (“Recipient”) of the other party (“Discloser”) shall: (i) not disclose the Confidential Information to any third party at any time and Recipient shall limit disclosure of Confidential Information within its own organization to its employees or its legal, financial and accounting advisors having a need to know and who have agreed to be bound by the terms of this Agreement; and (ii) protect the confidentiality of the Confidential Information with at least the same degree of care as Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care. Recipient shall be entitled to disclose Confidential Information solely to the extent necessary to comply with a court order or as otherwise required by law or by a regulatory agency or government body, provided that Recipient shall first give notice to Discloser and make a reasonable effort to obtain a protective order to protect the confidentiality of the information. If such protective order is not obtained, Recipient agrees to disclose only that portion of the Confidential Information which it is legally required to disclose. Recipient shall immediately notify Discloser of any actual or suspected unauthorized disclosure of Confidential Information. Recipient shall not modify, reverse-engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information without Discloser’s prior written consent.
(c) The obligations described in Section 6(b) imposes no obligation upon Recipient with respect to any Confidential Information which (i) is or becomes a matter of public knowledge through no fault of Recipient; (ii) is rightfully received by Recipient from a third party without a duty of confidentiality to a third party by, or with the authorization of, Discloser; (iii) is disclosed without a duty of confidentiality; or (iv) is independently developed by Recipient. The burden of proving any of the above exemptions is on Recipient.
(d) Upon the written request of Discloser, Recipient shall immediately destroy or return to Discloser, as requested by Discloser, all Confidential Information of Discloser in its possession, together with all records in any manner pertaining to any of Discloser's Confidential Information. Recipient shall also, upon the written request of Discloser, furnish Discloser with a certificate of an officer verifying that all of the foregoing have been destroyed or returned to Discloser.
(e) The terms set forth in this Section 6 replace any prior non-disclosure agreement executed between the parties.
7. Intellectual Property Indemnity
(a) Subject to the limitations of Section 7(d), Precise will defend, at its own expense, any claim, suit or proceeding brought by a third party against Customer to the extent it is based upon a claim that any Deliverable (“Indemnified Product”) obtained and used pursuant to this Agreement infringes upon any copyright or United States patent, or misappropriates a trade secret of any third party (“Claim”) provided that Customer: (i) promptly notifies Precise in writing of any Claim, (ii) gives Precise full information and assistance in connection therewith, and (iii) gives Precise the sole right to control the defense of and settle or compromise any Claim. Precise will pay all damages, costs, and expenses finally awarded to third parties against Customer in such action or agreed to in settlement by Precise. If an Indemnified Product is, or in Precise's opinion might be, held to infringe or misappropriate as set forth above, Precise may, at its option and expense replace or modify such Indemnified Product with a Deliverable substantially similar in functionality so as to avoid infringement or misappropriation, or procure the right for Customer to continue the use of such Indemnified Product. If neither of such alternatives is, in Precise's opinion, commercially reasonable, such Indemnified Product shall be returned to Precise, or Precise shall cease providing such Deliverables to Customer, and Precise shall refund the fees paid by Customer to Precise for the Indemnified Product. The refund for the Indemnified Product shall be the pro-rated unused portion of prepaid fees for the Indemnified Product.
(b) Subject to the limitations in Section 7(d), Precise will indemnify and hold harmless Customer from claims against Customer for bodily injury (including death) or tangible property damage arising out of, as a result of, or in connection with, Precise's performance under this Agreement or the grossly negligent actions or willful misconduct of Precise (“Customer Claims”), provided that Customer (i) promptly notifies Precise in writing of any Customer Claim, (ii) gives Precise full information and assistance in connection therewith, and (iii) gives Precise the sole right to control the defense of and settle or compromise any Customer Claim. Precise will pay all damages, costs, and expenses finally awarded against Customer in such action or agreed to in settlement by Precise.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, SECTION 7(a) AND SECTION 7(b) STATES PRECISE’S ENTIRE LIABILITY TO CUSTOMER FOR: (i) INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, INCLUDING BUT NOT LIMITED TO PATENT, COPYRIGHT, TRADEMARK, AND TRADE SECRET RIGHTS; AND (ii) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND IS IN LIEU OF AND REPLACES ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT, MISAPPROPRIATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) Precise will have no liability for, and no obligation to defend Customer against any claim pursuant to Section 7(a) and Section 7(b) to the extent such claim is based on: (i) use of an Indemnified Product outside the scope of this Agreement, (ii) the combination, operation, or use of an Indemnified Product with software, hardware or other materials not specified in an applicable Statement of Work, (iii) any alteration or modification of the Indemnified Product not made by Precise or its agents, or (iv) Customer’s use of the Indemnified Product after Precise’s notice to Customer that it shall cease use of the Indemnified Product due to such claim. The above exclusions apply to the extent that the infringement would have been avoided but for such improper use.
8. Limitation of Liability.
(a) IN NO EVENT WILL PRECISE OR PRECISE SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS ARISING FROM, CONNECTED WITH, OR RELATED TO THIS AGREEMENT AND/OR ANY SOW, WHETHER SUCH LIABILITY IS FORESEEABLE, EVEN IF PRECISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. Some jurisdictions do not allow limitation or exclusion of incidental or consequential damages, so the above limitation or exclusion may not apply to Customer. THE LIMITATIONS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT AND/OR SOW IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL PRECISE’S AGGREGATE CUMULATIVE LIABILITY FOR ANY DAMAGES, DIRECT OR INDIRECT, ARISING FROM, IN CONNECTION WITH, OR RELATED TO THE SERVICES AND/OR DELIVERABLES EXCEED THE AMOUNT PAID HEREUNDER AND/OR AN APPLICABLE SOW WITH RESPECT TO SUCH SERVICES AND/OR DELIVERABLES WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, PRECISE’S TOTAL LIABILITY ARISING FROM, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT AND/OR ANY SOW SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY PRECISE FROM CUSTOMER UNDER THIS AGREEMENT AND/OR AN APPLICABLE SOW. THE LIMITATIONS OF THIS SECTION 8(b) DO NOT APPLY TO PRECISE’S OBLIGATION OF INDEMNITY PURSUANT TO SECTION 7.
Precise agrees to provide the following insurance coverage during the Term of this Agreement. Upon written request, Precise shall supply Customer with a certificate(s) of insurance evidencing such coverage:
(a) Worker’s Compensation Insurance as required by the law; and
(b) Employer’s Liability Insurance in such customary amounts carried by employers in like business; and
(c) Comprehensive General Liability and Property Damage Insurance coverage, including Errors and Omissions Liability Insurance of $1,000,000 per occurrence.
(a) Entire Agreement, Modifications, and Waivers. This Agreement, together with any applicable SOW, contains the Parties’ entire agreement with respect to the subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, understandings, offers and communications, both written and oral, between the Parties. This Agreement and/or any applicable SOW may not be modified except by written instrument signed by both Parties and referring to the particular provisions to be modified. All terms, conditions, or provisions which may appear as pre printed language or otherwise be inserted within any purchase order shall be of no force and effect notwithstanding the acceptance of such purchase order after the date of this Agreement and/or any applicable SOW. If any provision of this Agreement and/or any SOW is declared invalid or unenforceable, then a court of competent jurisdiction shall replace the invalid or unenforceable provision with a valid and enforceable provision that most accurately reflects the Parties’ intentions and the remaining provisions of this Agreement and/or any applicable SOW shall remain in full force and effect. Failure by either Party to enforce any provision of this Agreement and/or any applicable SOW will not be deemed a waiver of future enforcement of that or any other provision. Wherever the term “including” is used, it shall mean “including, but not limited to”. This Agreement and/or any applicable SOW may be executed in one or more counterparts, each of which shall be deemed an original for all purposes, and together shall constitute one and the same agreement.
(b) Headings, Advice of Counsel, and Drafting. Headings used in this Agreement and/or any applicable SOW are provided for convenience only, and will not in any way affect the meaning or interpretation of any provision. The Parties acknowledge that they have been advised by counsel of their own choosing, played equal parts in negotiating this Agreement and/or any applicable SOW and that the terms therein shall be interpreted without bias against either Party.
(c) Governing Law. This Agreement, and/or any applicable SOW and the rights and obligations of the Parties hereunder shall be construed in accordance with and shall be governed by the internal laws of the State of California, excluding its conflict of law rules, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act are expressly disclaimed.
(d) Attorney's Fees. The prevailing party in disputes concerning this Agreement and/or any applicable SOW shall be entitled to the costs of collections and enforcement, including but not limited to reasonable attorney's fees, court costs and all necessary expenses. Notwithstanding anything in this Agreement and/or any applicable SOW to the contrary, in the event of Customer’s bankruptcy or insolvency, Precise will be entitled to recover from Customer Precise’s costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, that Precise incurs in enforcing and/or otherwise protecting Precise rights and remedies under any applicable SOW and/or this Agreement or amendments and modifications thereto.
(e) Relationship between the Parties. Each Party is an independent contractor, and nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Parties.
(f) Notices. All notices, requests, demands or other communications which are required or may be given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been duly given if sent by a nationally recognized overnight express courier. Notices shall be delivered to the following:
Address as it appears in an applicable purchase order or order document.
Precise Software Solutions, Inc.
3 Twin Dolphin Drive
Redwood Shores, CA 94065
Attn: General Counsel
(g) Force Majeure. Neither Party shall be in default if its failure to perform any obligation under this Agreement and/or any applicable SOW (other than obligations to make payments when due) is caused solely by supervening conditions beyond that Party’s reasonable control, including acts of God, war, terrorism, civil commotion, strikes, labor disputes, internet service interruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements.
(h) Publicity. Customer authorizes Precise to publicly disclose that Customer is a customer and to use Customer’s name and logo to identify Customer as a customer. Customer agrees that Precise may issue a press release upon execution of this Agreement and/or any applicable SOW announcing this Agreement and/or any applicable SOW and describing the general nature of the Services Precise provides to Customer. Except as set forth in this subsection, there shall be no public announcement of this Agreement or the relationship between the Parties without mutual review and approval by both Parties, except as part of required governmental filings, SEC filings (forms 10-K, 10-Q, etc.), quarterly earnings announcements and financial presentations, or listings of other similar relationships.
(i) Injunctive Relief. Customer acknowledges that the breach or threatened breach of this Agreement could give rise to irreparable injury to Precise which would be inadequately compensated in money damages. Accordingly, Precise may seek a restraining order and/or an injunction prohibiting such breach in addition to any other legal remedies which may be available. Customer agrees that Precise will not be required to post a bond in seeking injunctive relief under this Agreement.
(j) Export Controls. Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Customer covenants that Customer shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Precise under this Agreement and/or any applicable SOW to any destination, entity, or person prohibited by the laws or regulations of any jurisdiction, including without limitation, the United States, without obtaining prior authorization from the relevant government authorities as required by those laws and regulations. Customer hereby indemnifies and holds harmless, to the fullest extent permitted by law, Precise and Precise’s assigns from and against any fines, penalties, judgments, settlements, and reasonable documented costs, including attorneys fees, that may arise as a result of Customer’s and Customer’s agents, officers, directors or employees breach of this provision.
(k) Assignment. Neither party may assign its interest in this Agreement and/or any applicable SOW, including by operation of law or change of control, without the other party’s prior written consent, which consent shall not be unreasonably withheld. This Agreement and/or any applicable SOW will inure to the benefit of and be binding upon the Party’s successors and permitted assigns. Unless otherwise specifically agreed to by the non assigning party, no assignment by either Party shall relieve the assignor from its obligations pursuant to this Agreement and/or any applicable SOW. Any assignment in violation hereof shall be null and void.
(l) Effect of Bankruptcy. In the event that Customer becomes the subject of any voluntary or involuntary bankruptcy proceeding, liquidation, dissolution, receivership or attachment or makes a general assignment for the benefit of creditors, amounts that have been paid to Precise are hereby deemed earned upon receipt and are Precise’s sole property, irrespective of whether the Services or Deliverables, have been delivered and may be applied, in whole or in part, in satisfaction of any obligations owed by Customer to Precise under this Agreement, any applicalbe SOW or any other agreement between Customer and Precise.
(m) Survival. The Sections 1 (Definitions), 2 (Payment and taxes), 3(a), 3(b), 4 (Term, Termination and Expiration), 5 (Ownership and Copyright), 6 (Confidential Information), 7 (Intellectual Property Indemnity), 8 (Limitation of Liability), 9 (Insurance) and 10 (General), shall survive the expiration or termination of this Agreement.