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MASTER SERVICES AGREEMENT

Agreement for services as referenced in a corresponding Statement of Work, provided by Silent Sector, LLC

Master Services Agreement

  1. Services.  Silent Sector, LLC (“Silent Sector”) shall provide the services (the “Services”) and the deliverables, if any (the “Deliverables”), to Client identified in and as set forth in a statement of work (“SOW”).  Unless specifically provided for in a SOW, the Services do not include any remediation assistance from Silent Sector.  Any remediation assistance may be made available by Silent Sector in its sole and absolute discretion and will be subject to payment of additional fees.  The Services are contingent on Client providing access to Client systems including those not directly owned by Client that are necessary for Silent Sector to carry out the Services.  Any changes to the scope of the Services must be submitted by Client in accordance with the change order process defined in the applicable SOW. The parties may execute additional SOWs describing Services, which will become part of this Agreement upon execution by Silent Sector and the Client. If additional SOWs are executed, Silent Sector may require that Client shall pay Silent Sector for all Services previously performed before Silent Sector begins work on the new SOW.

  2. Client’s Obligations. 
    (a)            Certain Services may require that Client disclose certain information about itself during scoping discussions or as may be otherwise requested by Silent Sector from time to time and provide access to Client systems.  In such case, Client agrees to provide full and accurate information about itself as requested by Silent Sector and to update the information provided in a timely manner as information changes.  Client acknowledges and agrees that any information provided that is untrue, inaccurate, or incomplete can result in the immediate suspension or termination of all rights granted herein in Silent Sector’s sole and absolute discretion.  If Silent Sector determines or has reason to believe that any information provided is untrue, incomplete, or inaccurate or that the Services are being used by Client or any other party in a malicious, abusive, or negligent manner, Silent Sector, in its sole and absolute discretion, may suspend or terminate the Services being provided to Client.  In cases of such actions, Client is fully responsible for paying for repair and remediation including materials, fees, services and labor at current Silent Sector published ad-hoc rates.
    (b)            Client agrees to comply with the terms of this Agreement, any applicable SOW, and all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination of false advertising).  Client represents and warrants that it has full rights, power, and authority to have the Services performed on all requested property, whether tangible or intangible, including but not limited to systems used by Client, including those not directly owned by Client, that are necessary for Silent Sector to carry out the Services.  Client further represents and warrants that it will not, directly or indirectly: (i) use the Services for illegal purposes; (ii) interfere or disrupt third party networks using the Services; (iii) use the Services to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (iv) attempt to gain unauthorized access to third party computer systems; (v) interfere with another company’s, subscriber’s or third party’s use and enjoyment of the same or similar services; (vi) reproduce, sell, lease, rent, transfer or exploit for any commercial purpose any portion of the Services; (vii) use the Services to exploit or discover vulnerabilities or security flaws; (viii) represent that Silent Sector guarantees Client’s systems, products or services; (ix) reverse engineer or otherwise attempt to derive the processes by which the Services are provided; or (x) use the Deliverables, information or report provided by Silent Sector, if any, to exploit or access any third party system.  Client acknowledges that use of the Services in violation of this Agreement may be subject to criminal and/or civil fines and penalties under applicable laws.  Silent Sector has the right to audit and gather information regarding Client’s use of the Services to confirm the proper use of the Services and Client’s compliance with this Agreement.

  3. Payment.
    (a)            Client shall pay Silent Sector the fees as set forth in the applicable SOW.   All invoices are due upon receipt unless otherwise stated in a SOW.  Unless otherwise provided in an applicable SOW, Services shall only commence upon Silent Sector’s receipt of payment.  Services outside the scope of the Agreement will be billed as services are rendered and are due upon receipt of invoice. Charges and fees are not contingent on the outcome of the Services. All fees are non-refundable. 
    (b)            It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for Services or materials rendered under this Agreement.  Client shall pay any such taxes unless a valid exemption certificate is furnished to Silent Sector for the state of use.  Client is responsible for any taxes due on purchased Services, Deliverables, or other products if such taxes are not collected by Silent Sector.
    (c)             For the purposes of this Agreement, all invoices that are more than fifteen (15) calendar days past due will be deemed delinquent.  Silent Sector reserves the right to cancel or suspend Services if Client becomes delinquent or defaults in payment of fees or other obligations to Silent Sector.  Client agrees to be liable to Silent Sector for the entire delinquent invoice together with 5% interest applied monthly, or the maximum amount permitted by applicable law, whichever is less, as of the due date of each respective invoice. 
    (d)            In the event Silent Sector is obliged to retain an agent or attorney to collect any sums due from Client, Client agrees to pay, in addition to any open invoices, interest computed at a rate of 10% per annum applied as of the date of delinquency, and all other collection costs.  If either party is obliged to bring any action to enforce any term of this Agreement or any SOW, the prevailing party in any such action shall be entitled to recover its court fees and reasonable attorney fees.  Client waives any right to dispute the amount due under any invoice after 30 days from the due date of such invoice.

  4. Term; Termination. 
    (a)          Term.  The term of this Agreement shall remain in effect for one (1) years unless a different term is agreed upon in a SOW. 
    (b)          Termination.  Either party hereto may terminate this Agreement or an SOW (i) for a material breach of any of the provisions herein, if, thirty (30) days after receipt of written notification, such breach remains uncured, (ii) upon reasonable notice of not less than thirty (30) days if Silent Sector is no longer able to perform the Services, unless such inability is caused by a Force Majeure Event or if a change in industry standards, regulations, or law prevents further use of the Services; or (iii) if the other party applies for or consents to the appointment of a receiver, trustee, or liquidator for substantially all of its assets or such a receiver, trustee, or liquidator is appointed or has filed against it an involuntary petition of bankruptcy that has not been dismissed within thirty (30) days thereof, or files a voluntary period of bankruptcy, or a petition or answer seeking reorganization, or an arrangement with creditors, or seeks to take advantage of any other law relating to the relief of debtors, or makes an assignment for the benefit of creditors.  Silent Sector may also immediately terminate this Agreement if Silent Sector discovers that Client has requested Services on any property, whether tangible or intangible, not owned by Client.  Termination of a SOW shall not act as a termination of any other SOW or as a termination of this Agreement.  Termination of this Agreement, however, shall act as a termination of all SOWs then pending, unless the parties agree to otherwise in writing.  The provisions of Sections 10, 11, 12, 18 and 19 and all such similar terms which by their substantive intent should survive the expiration or termination of this Agreement shall so survive.
    (c)          Equipment Removal.  Upon termination of this Agreement for any reason whatsoever, Client shall provide Silent Sector with access, during normal business hours, to Client’s premises and systems (or any other locations at which Silent Sector-owned equipment is located) to enable Silent Sector to remove all Silent Sector-owned equipment and services from such premises (if any).
    (d)          Transition.  In the event this Agreement is terminated for any reason whatsoever, Client data held by Silent Sector, if any, shall be returned to the Client in a commercially reasonable manner and timeframe, not to exceed twenty (20) business days following the date of request of the return of such data by Client.  The data shall be returned in, at a minimum, a raw text such as comma separated value (i.e., CSV) format, unless another industry-standard format is mutually agreed upon by the parties.  In the event that Client requests Silent Sector’s assistance to transition to a new service provider, Silent Sector shall do so provided that (i) all fees due and owing to Silent Sector under this Agreement are paid to Silent Sector in full prior to Silent Sector providing its assistance to Client, and (ii) Client agrees to prepay Silent Sector its then-current hourly rate for such assistance, with upfront amounts to be paid to Silent Sector as agreed upon between the parties.  Silent Sector shall have no obligation to store or maintain any Client data in Silent Sector’s possession or control beyond twenty (20) business days following the termination of this Agreement.  Silent Sector shall be held harmless for and indemnified by Client against any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Silent Sector’s deletion of Client data beyond the time frames described in this section.
    (e)          Cancellation Fee.  If this Agreement or any SOW is terminated by the Client (other than for a material breach by Silent Sector), Client agrees to provide Silent Sector with 30 days’ written notice of cancellation, and to pay cancellation fees equal to all unpaid fees and the lesser of (i) the fees for the remainder of the Agreement or SOW, as applicable, or (ii) six months of monthly recurring fees under the Agreement or SOW, as applicable.  The amount of monthly recurring fees will be calculated based on average fees paid by Client for the three months active Services were provided before downgrading or reducing Services prior to notice to terminate, excluding hardware purchases.  Cancellation payment is due in full within 30 days of receipt of cancellation invoice.

  5. Authorized Contact Person.  Client shall designate one or more authorized contact person(s) (each, an “Authorized Contact”) with whom Silent Sector will conduct Service-related communications. If during the term of this Agreement, Client wishes to add or remove an Authorized Contact, or modify an Authorized Contact’s information or authority, Client must notify Silent Sector in writing of the change(s) including (in the event of the addition of an Authorized Contact) the Authorized Contact’s name, address, email address and business telephone number and cell phone number. Likewise, Client may designate one or more Authorized Contacts with respect to individual SOW. Each Authorized Contact shall be a point of contact for Silent Sector, and shall be authorized to provide, modify and approve on Client’s behalf, work direction, SOW, and change orders.  Client understands and agrees that Silent Sector shall be permitted to act upon the direction and apparent authority of each Authorized Contact, unless and until Silent Sector receives written notice from Client (as described below) that an Authorized Contact is no longer authorized to act on Client’s behalf.

  6. Access to Premises.  To the extent that Services are performed on Client’s premises, physical, virtually or remotely (“Premises”), Client hereby grants to Silent Sector the right of ingress and egress over the Premises and further grants Silent Sector a license to provide the Services described in any SOW within the Premises.  To the extent that Services are provided to Client on property other than the Premises, it shall be Client’s responsibility to secure, at Client’s own cost, prior to the commencement of any Services, any necessary rights of entry, licenses, permits or other permission necessary for Silent Sector to provide Services at such location(s).  Client shall provide Silent Sector with any passwords or keys (virtual or otherwise) that Silent Sector requires in order to provide the Services to Client.  Silent Sector shall not be liable for delay in performance or nonperformance of any term or condition of this Agreement directly or indirectly resulting from Client’s denial to Silent Sector of full and free access to Client’s systems and components thereof, or Client’s denial to Silent Sector of full and free access to Client’s personnel or Premises pursuant to this Agreement.  Access shall be granted to third parties and subcontractors as selected by Silent Sector to complete necessarily service.  Client will provide to Silent Sector certain information required for performing the Services.  Client represents and warrants that all information provided is true and accurate and that Client owns or is authorized to provide such information to Silent Sector.

  7. Insurance.
    (a)          Client shall be responsible for purchasing and maintaining (i) liability and property damage insurance on its computer equipment, including, but not limited to, computer hardware and software (collectively the “Computer Equipment”); (ii) business interruption insurance to protect Client against losses resulting from the nonperformance or destruction of the Computer Equipment; and (iii) such other insurance as will protect Client against claims that may arise under this Agreement.  Under no circumstances shall Silent Sector be responsible to Client or any other party for (1) the replacement of the Computer Equipment or data; (2) any losses resulting from the failure of the Computer Equipment to function or operate; or (3) any loss or damage to the Computer Equipment or data arising out of or related to the actions of Client or Client’s agents, employees or contractors.
    (b)          Silent Sector shall be responsible for maintaining (i) professional and technology errors and omissions, including network security and privacy liability coverage, with limits of $5,000,000 per claim; (ii) crime insurance, with coverage extended to include property of Client in the care, custody, or control of Silent Sector, or for which Silent Sector is legally liable, with limits of $1,000,000 per claim; and (iii) cyber liability, with coverage for system attacks, malicious code, unauthorized access, and loss or disclosure of confidential data with limits of $5,000,000 per occurrence.

  8. Independent Contractor. This Agreement shall not be construed to create any kind of agency, franchise, employment, partnership, joint venture, or other form of joint enterprise, it being understood that Silent Sector shall conduct its business at its own risk and expense and for its own account, in the status of an independent contractor and completely independent entity.  Except as expressly provided herein, Client shall have and exercise no right or control or direction over the conduct, management, operation, form or affairs of Silent Sector’s business.  Silent Sector is not granted any right or authority to assume or create any obligations or responsibilities, whether expressed or implied, on behalf or in the name of Client or to bind C in any manner or thing whatsoever, unless expressly authorized by Client.

  9. Subcontractors.  Silent Sector may subcontract part or all of the Services or offerings to one or more third parties provided, however that Silent Sector shall be responsible for all work performed by any Silent Sector -designated subcontractor as if Silent Sector performed such work itself.  Notwithstanding the foregoing, Silent Sector shall not delegate or subcontract any Services that are expressly designated as being non-delegable by Client on a SOW.

  10. No Warranties; Limitation on Liability.  Silent Sector warrants and represents that it shall not use Client’s system or the Services for any purposes or activities that violate the laws of any jurisdiction, including the sending of unsolicited, bulk commercial email (i.e., SPAM).  Except as expressly provided herein, Silent Sector makes no representation or warranty of any kind, nature or description, written or oral, expressed or implied, with respect to the Services or use of the Computer Equipment, the performance of the Computer Equipment, or the fitness of the Computer Equipment for a particular purpose.  In addition:
    (a)          Silent Sector does not warrant that the outcomes or functions performed by Services or Computer Equipment will meet Client’s requirements or that the Services or Computer Equipment will operate error free or free from inaccuracies, mistakes, delays, interruptions or typographical errors, or that it will operate uninterruptedly or that all defects in the Services or Computer Equipment are preventable or correctable or that any remedies recommended by the Services will do the same.  Client shall look to the manufacturer or provider of the third party services or Computer Equipment for all such warranties.
    (b)          Client acknowledges that the Services are subject to the operation of the Internet and third-party telecommunications infrastructures as well as the operation of Client’s Internet connection services, all of which are beyond the control of Silent Sector.  Silent Sector shall not be liable or responsible for any delay or inability to provide the Services resulting from problems associated with the Internet or outside of Silent Sector’s control.
    (c)          Any third party products provided to Client pursuant to this Agreement, including but not limited to third party hardware, software, peripherals, services and accessories (collectively, “Third Party Products”) shall be provided to Client “as is” and “as available”.  Silent Sector shall use reasonable efforts to assign all warranties (if any) for the Third Party Products to Client, but will have no liability whatsoever for such Third Party Products.  All Third Party Products are provided WITHOUT ANY WARRANTY WHATSOEVER as between Silent Sector and Client, and Silent Sector shall not be held liable as an insurer or guarantor of the performance or quality of Third Party Products.  Silent Sector assumes no liability for failure of Third Party Products, equipment, including without limitation the Computer Equipment, or software or any losses resulting from such failure.  
    (d)          USE OF THE SERVICES BY CLIENT IS AT ITS OWN RISK. CLIENT ACKNOWLEDGES THAT THE SERVICES COULD CAUSE ITS SYSTEMS OR OTHER FAILURES AND DATA LOSS. CLIENT UNDERSTANDS THAT, ALTHOUGH SILENT SECTOR TAKES PRECAUTIONS TO AVOID DAMAGE TO CLIENT’S SYSTEMS, DISRUPTIONS, OUTAGES AND/OR DATA LOSS MAY OCCUR AS A RESULT OF CERTAIN SERVICES PROVIDED BY SILENT SECTOR.  Client represents and warrants that all systems on its network or otherwise accessible by Silent Sector are routinely backed up by Client.  In no event shall Silent Sector or its affiliates or their licensors, suppliers, employees or agents be responsible or liable for servicing or replacing property, material, equipment or data even if resulting from their acts or omissions, unless due to fraud or intentional misconduct.
    (e)          Unless expressly stated in this Agreement, neither party shall be liable to the other party or any third party for any Damages (as defined below), compensation, reimbursement, losses, expenses, costs or damages arising from or related to, directly or indirectly, the termination of this Agreement for any reason, or for Damages arising from or relating to Silent Sector’s disclosure of information pursuant to any valid legal request to which Silent Sector is required to comply. 
    (f)           IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS OR SALES, SAVINGS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY SOW, OR ANY SERVICES PERFORMED OR PARTS, INCLUDING THIRD PARTY PRODUCTS AND COMPUTER EQUIPMENT, SUPPLIED HEREUNDER, ANY LOSS OR INTERRUPTION OF TECHNOLOGY OR SERVICES, OR FOR ANY BREACH HEREOF OR FOR ANY DAMAGES CAUSED BY DELAY OR INABILITY IN FURNISHING SERVICES UNDER THIS AGREEMENT OR ANY SOW, OR ANY INFORMATION, PRODUCTS OR SERVICES OBTAINED THROUGH THE SERVICES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER FOR DAMAGES FROM ANY AND ALL CAUSES WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT OF THE AGGRIEVED PARTY’S ACTUAL DIRECT DAMAGES NOT TO EXCEED THE FEES PAID BY CLIENT TO SILENT SECTOR FOR THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED.  THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY DAMAGES INCURRED AS A RESULT OF ANY PARTY’S FRAUD, INTENTIONAL MISCONDUCT, OR GROSS NEGLIGENCE OR CLIENT’S PAYMENT OBLIGATIONS.  IT IS UNDERSTOOD AND AGREED THAT THE COSTS OF HARDWARE OR SOFTWARE (IF ANY) PROVIDED TO CLIENT UNDER THIS AGREEMENT SHALL NOT BE INCLUDED IN THE CALCULATION OF THE LIMITATION OF DAMAGES DESCRIBED IN THE PRECEDING SENTENCE.  The limitations set forth in this section shall apply notwithstanding any failure of any essential purpose of any limited remedy set forth in this Agreement, and because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply.

  11. Indemnification.  Each party (an “Indemnifying Party”) hereby agrees to indemnify, defend and hold the other party and any of its contractors, agents, employees, officers, directions, members, managers, shareholders, affiliates, licensors, suppliers, and assigns (each an “Indemnified Party”) harmless for, from and against any and all loss, damage, cost, expense or liability, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from (a) the breach of this Agreement or breach of the Indemnifying Party’s warranties, representations and obligations hereunder, (b) falsehoods or misrepresentations of fact by the Indemnifying Party and/or Indemnifying Party’s employees, subcontractors, or agents, (c) failure to disclose a material fact if the omission was made negligently or with intent to deceive any party, or (d) any intellectual property or other proprietary right of any person or entity.  The Indemnifying Party further agrees to indemnify, defend, save and hold harmless the Indemnified Party for, from  and against all Damages arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property, whether tangible or intangible, or other work in connection with the performance of the Services; provided however, that such Damages are the direct result of the Indemnifying Party’s actions and not due to the Indemnified Party’s fault, in whole or in part.  Silent Sector shall have the right to participate in any defense of a third-party claim related to Client’s use of the Services, with counsel of Silent Sector ‘s choice and at Client’s expense. Client shall have sole responsibility to defend Silent Sector against any claim, but Client must receive Silent Sector’s prior written consent regarding any related settlement.

  12. Copyrights and other Intellectual Property. 
    (a)            Silent Sector expressly reserves and maintains at all times all ownership rights in and to the Services, including any intellectual property rights therein. This Agreement shall not be construed to grant any ownership rights in the Services.
    (b)            Client shall own the Deliverables upon payment in full of any and all fees due Silent Sector, but such ownership specifically excludes all Background IP (defined below) and Silent Sector’s Creating Party’s IP (defined below).  Silent Sector shall retain all right, title, and interest to any Background IP.  “Background IP” means pre-existing and pre-owned elements Silent Sector incorporates into any Deliverable, including without limitation plans and software, and all general enhancements made thereto while performing services for Client.  Silent Sector hereby grants Client a limited, perpetual, royalty free, non-sublicensable, non-transferable, and non-exclusive right and license to use the Background IP as part of the Deliverables.  The Background IP may not be distributed or sold in any form or manner without the express prior written consent of Silent Sector.  Because Background IP is incorporated into the Deliverables, Client may only use and modify any Deliverable with the prior written permission of Silent Sector, and further provided that such modifications (i) do not result in or cause the infringement of any intellectual property rights of any third party, (ii) do not require Client to reverse engineer Silent Sector’s intellectual property, including without limitation the Background IP, and (iii) do not negatively impact the security or integrity of any of Silent Sector’s equipment, or the integrity or implementation of the Services.

  13. End of Life. Client understands that hardware, software and digital products produced for use today or in the past may have an inherent “End of Life”.  Products that have reached their end of life by service contract, support, contract, term of service or best practice as determined by Silent Sector may no longer be serviceable.  Client agrees to not hold Silent Sector liable or responsible for products that are no longer serviceable, have been discontinued, or where online account access has been terminated, suspended or deleted.  In most cases products that have reached “End of Life” must be replaced with new products and it will be the sole responsibility of Client to bear the cost of purchase, configuration and implementation of such new products.

  14. Like Product.  Silent Sector relies upon third party vendors, service providers and manufacturers who provide products and services which may be used by Silent Sector in Client systems or operations.  As Silent Sector has no control over third party vendors, service providers, or manufactures, Silent Sector may substitute, replace or change products or services, or third party service providers, manufacturers, or vendors, as it deems necessary to another product or service at the choosing of Silent Sector.

  15. Administrative Privileges.  Silent Sector strives to enforce best practices regarding system security and operation.  As such system logins, levels of access, and authorization to perform end user administrative functions may be limited to certain designated individuals in Client’s personnel.  Client may request in writing that non-standard security access to be granted to a single or multiple users.  In the event that Silent Sector determines that required service to repair or restore operation is the result of use, abuse or vulnerability due to a user’s use of administrative privileges, Services will be billed at Silent Sector’ current standard rates for such Services.

  16. Waiver.  Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one time or more times be deemed a waiver or relinquishment of such right or power at any other time or times.

  17. Notice.  No notice, consent, approval or other communication provided herein or given in connection herewith shall be validly given unless it is in writing and delivered personally, sent by electronic mail (i.e. e-mail), or sent by registered or certified United States mail, postage prepaid, to Silent Sector at the address shown below or such other addresses indicated by Silent Sector in writing from time to time:  Notices shall be deemed received (a) upon delivery, if personally delivered, or (b) on the date set forth on the registered or certified return receipt, or (c) by e-mail on the same business day provided sender obtains printed confirmation of delivery.  Rejection or refusal to accept delivery or the inability to deliver because of a change of address of which no notice was given shall constitute actual receipt.

  18. Non-Solicitation.  Client acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, Client will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Silent Sector’s employees or subcontractors to discontinue or reduce the scope of their business relationship with Silent Sector, or recruit, solicit or otherwise influence any employee or agent of Silent Sector to discontinue such employment or agency relationship with Silent Sector.  In the event that Client violates the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to Silent Sector would be difficult or impracticable to determine, and agree that in such event, as Silent Sector’s sole and exclusive remedy therefore, Client shall pay Silent Sector as liquidated damages and not as a penalty an amount equal to seventy-five percent (75%) percent of that employee or subcontractor’s first year of base salary if known, otherwise industry standard, wages or compensation with Client (including any signing bonus).

  19. Confidentiality.  Each party acknowledges that it may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information which is proprietary to or confidential to the other, its affiliated companies or third parties to whom such party has a duty of confidentiality.  Confidential information includes any and all non-public information of any form disclosed by one party to the other party in connection with this Agreement.  Each party agrees to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever other than as contemplated by this Agreement and to advise each employees, agents or consultants who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential. Confidential information shall not include information which the disclosing party can show by objective or verifiable evidence is (i) in or becomes part of the public domain other than by disclosure by a party in violation of this Agreement, (ii) demonstrably known to such party previously, (iii) independently developed by such party outside of this Agreement or (iv) rightfully obtained by such party from third parties.  If the receiving party is required by law to disclose confidential information, the receiving party may do so without breaching this section upon notice to the disclosing party, unless legally prohibited, and then only to the extent necessary to comply with the law. The parties understand and agree that, in the event of a breach of this section, damages may not be an adequate remedy and each party may be entitled to injunctive relief to restrain any such breach, threatened or actual.

  20. Severability.  If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW shall be valid and enforceable to the fullest extent permitted by applicable law, so as nearest to affect the intent of the parties.

  21. Force Majeure. Silent Sector shall not be liable to Client for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond its reasonable control.  Such circumstances include, but shall not be limited to, any acts or omissions of any governmental authority; natural disaster; pandemic; act of a public enemy; acts of terrorism, riot, or sabotage; disputes or differences with workmen; power failure; communications delays/outages; delays in transportation or deliveries of supplies or materials; governmental lockdowns, quarantines, or other shutdowns; or acts of God (collectively, a “Force Majeure Event”). If either party is unable to perform any of its obligations under this Agreement other than Client’s payment of fees because of a Force Majeure Event, the party who has been so affected will immediately give notice to the other party and will use commercially reasonable efforts to resume performance.  Upon receipt of such notice, all obligations under this Agreement will be immediately suspended for the duration of the Force Majeure Event.

  22. General Terms. This Agreement shall bind and benefit Silent Sector and Client and each of their respective successors and permitted assigns.  Silent Sector shall not be bound by any terms or conditions printed on any of Client’s purchase orders, checks, or correspondence without Silent Sector’s prior express written acceptance of such terms.  Client may not assign this Agreement without written consent of Silent Sector.  This Agreement and any SOW contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all other written or oral agreements with respect to the subject matter hereof.  No amendment or modification of this Agreement or any SOW (including any schedules or exhibits) shall be valid or binding upon the parties unless such amendment or modification specifically refers to this Agreement, is in writing, and is signed by an authorized representative of each party. In the event the terms of this Agreement and a SOW conflict, the terms of the SOW shall control.  Section headings are for reference only and shall have no substantive meaning. This Agreement shall be governed in all respects by the laws of the State of Arizona, without giving effect to choice of law principles, and the parties agree that the state and federal courts located in Maricopa County, Arizona, shall be the proper venue for any dispute arising out of this Agreement.  In the event of any legal action, arbitration or proceeding brought by either party hereto against the other arising out of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees incurred in such legal action, arbitration or proceeding and such amount shall be included in any judgment or award rendered.