Master Services Agreement (“MSA”)

This MSA governs all Orders.

1. Definitions

1.1. “Affiliate(s)” means when used with respect to a Party any legal entity controlled by controlling or under common control with that Party where “control” (and its derivatives) means: (a) the possession directly or indirectly of the power to direct or cause the direction of the management and policies of a corporation person or other entity through the ownership of voting securities; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in the other corporation person or entity.

1.2. “Agreement” means collectively this MSA and each Order.

1.3. “Content” means all information data text software music audio recordings sounds messages goods products services or other materials uploaded posted transmitted or otherwise made available by Client to VoApps with respect to or via the Services.

1.4. “Confidential Information” means non-public information that one Party (or their Affiliate) (the “Disclosing Party”) discloses to the other Party under this MSA (the “Receiving Party”) and which is either marked as confidential (or words of similar import) or would reasonably under the circumstances be considered confidential. It does not include information that after the date of disclosure becomes public through no fault of the Receiving Party was already known by the Receiving Party prior to its disclosure by the Disclosing Party was rightfully disclosed to the Receiving Party by a third party without breach of an obligation of confidentiality owed to the Disclosing Party or is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. VoApps Confidential Information also includes materials or information related to requests for proposals quotes and VoApps Services Software and Documentation.

1.5. “DirectDrop Voicemail” is a software application service provided by VoApps in which Client may deliver a recorded message which is designed to terminate directly to a recipient’s mobile voicemail service.

1.6. “Documentation” means the then-current specifications user manuals and self-help guides accompanying Services.

1.7. “Order” means an ordering document executed by the Parties that references and is subject to this MSA which details the Services including the commercial details for such subscription purchase. Orders do not include any preprinted terms on a Client purchase order or other terms that are in addition to or inconsistent with the terms of this MSA. An Order may also be referred to as an Order Form or Subscription Order Form.

1.8. “Party” means either VoApps or Client individually as the context indicates and “Parties” means VoApps and Client collectively.

1.9. “Service(s)” means the software application services and other services that Client may purchase from VoApps under an Order.

1.10. “Service Type” is a service provided by VoApps in which an end user may submit one or more telephone numbers to VoApps to determine whether the telephone number(s) terminates to a mobile or to a landline service.

1.11. “Software” means any necessary software used in connection with the Services.

1.12. “Subscription Term” means the time period set forth in an Order during which Client is permitted to use or receive the Services.

2. Limited License

2.1. Subject to Client’s acceptance of and continued compliance with the Agreement VoApps hereby grants Client a limited non-exclusive non-transferable revocable and non-sublicensable right and license to use the Services during the Subscription Term. Except as may be expressly authorized under this MSA Client may not and may not attempt to:

  1. modify alter tamper with repair or otherwise create derivative works of any Services;
  2. reverse engineer disassemble or decompile the Services or apply any other process or procedure to derive the source code of any Software included or associated with the Services;
  3. collect use copy or distribute of any portion of the Services;
  4. use data mining robots or similar data gathering or extraction methods on the Services;
  5. use packet sniffers or other network or IP tracing technologies on the Services;
  6. use the Services in any manner other than for its intended purposes; or
  7. allow any third party to copy distribute sell disclose lend transfer convey modify decompile disassemble or reverse engineer the Services for any purpose whatsoever.

2.2. Client acknowledges that VoApps may change deprecate or republish Application Programming Interfaces (“APIs”) templates or other components of the Services or a feature of a Service from time to time and that it is Client’s responsibility to ensure that API calls or requests Client makes to or via VoApps’ Services are compatible with then-current APIs templates or other components of the Services.

2.3. From time to time VoApps may update or modify the Services (or any feature or part thereof) or any related policies provided that such changes or modifications:

  1. apply to all VoApps clients generally;
  2. do not materially reduce the overall functionality of the Service; and
  3. do not impose additional fees on Client during the applicable Subscription Term.

2.4. Although not required if Client provides feedback ideas or other suggestions (“Feedback”) about the Services then VoApps and its Affiliates will own and may use and exploit such Feedback without restriction or obligation to Client. All rights not expressly granted under this MSA are retained by VoApps.

2.5. From time to time VoApps may provide Client access to Services for trial or evaluation purposes for testing as a preview beta or pre-release version or for testing and development. Such Services may have limited features functions or other technical limitations including limits on duration quantity capacity or restrictions on use in certain environments (e.g. non-production). Notwithstanding anything to the contrary contained in this MSA and except as expressly set forth in an Order VoApps does not provide support warranties or indemnification for any such test and development trial evaluation free or beta Services which are provided to Client “AS IS”.

3. Invoice and Payment

3.1. Any payments due VoApps from Client under this MSA or any Order (“Fees”) will be invoiced per the terms specified in the Order and will be due and payable thirty (30) days after date of the invoice unless otherwise specified hereunder or under any Order. Client will deliver payment to VoApps in U.S. Dollars. Invoices may be sent via regular or overnight mail or e-mail. If Client delays payment VoApps shall be entitled to charge interest from the invoice due date at a rate of eighteen percent (18%) per annum or the highest amount permitted by applicable law whichever is less. Client will notify VoApps in writing of any good faith dispute with respect to any amounts owed pursuant to an invoice within ten (10) days of Client’s receipt of such invoice and provide in such notice the basis for the dispute. If notice of dispute is not received by VoApps within the foregoing ten (10) day period Client shall be deemed to have accepted such invoice as true and correct. The Parties will endeavor to resolve any dispute with respect to an invoice within thirty (30) days. All Fees for the Services Software or any other services not outlined in this MSA shall be outlined in each Order to this MSA. The Fees listed in any Order do not include taxes. Client agrees to pay any applicable sales use value-added or other tax and any duties or tariffs that may be assessed based on the sale or use of the Software or Services except for tax based on the net income or property of VoApps. If VoApps is required to pay such sales use value-added or other tax based on the Software or Services granted in the Agreement or on Client’s use of Software or Services for which Client is responsible then such taxes shall be billed to and paid by Client and Client shall indemnify defend and hold VoApps harmless with respect thereto.

4. Client Obligations

4.1. AT ALL TIMES CLIENT’S USE OF THE SERVICE MUST BE IN ACCORDANCE WITH APPLICABLE FEDERAL AND STATE LAWS RULES AND REGULATIONS. Client understands and agrees that VoApps merely acts as a passive conduit for Content created or selected by Client. Client agrees to use the Services only for lawful purposes. Without limiting the generality of the foregoing Client represents and warrants that it will only use the Service to deliver non-telemarketing voicemails to consumers from whom the Client has appropriate legally enforceable consent to send such communications using the Service. Client agrees to comply with (a) all applicable rules and regulations governing Content or the use of the Services including without limitation those of the Federal Trade Commission the Federal Communications Commission Consumer Financial Protection Bureau and (b) the rules governing the National Do Not Call registry and individual State Do Not Call Lists along with any other similar laws that may be applicable to Client’s use of the Services. Client shall not (i) violate the foregoing or any other applicable federal or state laws; (ii) use the Services in any manner that will or is reasonably likely to cause the Client or VoApps to violate any applicable laws; (iii) transmit any Content that is obscene harassing defamatory or that violates the intellectual property rights of any party; or (iv) engage in any conduct intended or likely to mislead or defraud any person including without limitation any conduct to conceal or misrepresent the identity of the sender of any message transmitted via the Service. Client further agrees and warrants that the transmission of Content through the Services does not violate any federal state local or foreign laws rules or regulations and Client will fully cooperate with VoApps in any investigation or inquiry related to the use of the Service or the transmission of any message under Client’s account. VOAPPS WILL NOT BE HELD RESPONSIBLE FOR DAMAGES TO THE CLIENT OR ANY THIRD PARTY INCURRED DUE TO CLIENT’S FAILURE TO ABIDE BY THIS PARAGRAPH OR ANY STATE LOCAL AND OR FEDERAL LAWS. VoApps may immediately suspend Services with or without prior notice in the event of a suspected violation of this Section 4 by Client or any user of the Services under Client’s account whether or not Client authorized such use. Client agrees and warrants that it is not relying on any representations regarding the legality of the Services from VoApps and that it has consulted with its own counsel in determining how to use the Service in compliance with all applicable federal state and local laws and regulations. Client will indemnify VoApps in accordance with Section 11 hereof for any and all losses damages fines claims or costs of any kind arising out of or related to Client’s violation or alleged violation of this Section 4.

4.2. Client is responsible for maintaining and backing up Client’s data and information that may reside on the Service. Any material downloaded or otherwise obtained through the use of the Service is done at Client’s own discretion and risk and Client will be solely responsible for any damage to Client’s computer system or loss of data that results from the download of any such material.

5. VoApps Proprietary Rights

5.1. Client acknowledges and agrees that the Services and Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws and that VoApps retains all right title and interest in the Services and Software and any modifications enhancements or derivative works thereto. Client agrees not to access the Services by any means other than through the online interface file transfer protocol (FTP) or application programming interface (API) that is provided to Client by VoApps for use in accessing the Services. Client further acknowledges and agrees that it has no license right or intellectual property right in any VoApps trademark trade name or service mark.

6. VoApps Privacy Policy

6.1. Client acknowledges consents and agrees that VoApps may access preserve and disclose any information from Client’s account it considers necessary or appropriate (including without limitation Client’s name and contact information) and any Content Client may have posted if it is required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary or appropriate to:

  1. comply with legal process;
  2. enforce this MSA;
  3. cooperate with law enforcement or other governmental requests
  4. respond to claims that any Content violates the rights of third parties;
  5. respond to Client’s requests for customer service; or
  6. protect the rights property or personal safety of VoApps its users or the public.

6.2. Unless preempted by federal state or local law or regulation VoApps will notify Client in advance prior to divulging any such information.

7. Account Security

7.1. Client is responsible for maintaining the security of Client’s account including maintaining the confidentiality of client key user id password and other account access information. Client agrees that it is fully responsible for all activities that occur under the account. Client agrees to immediately notify VoApps of any unauthorized uses of the account or any other breaches of security. VoApps cannot and will not be liable for any loss or damage from Client’s failure to comply with these security obligations. Client will remain solely responsible for all use of Services under its account and all charges therefore even if such use was unauthorized.

8. Telephone and Equipment Charges

8.1. VoApps is not responsible for any third-party charges or fees that Client may incur from using the Services. Client is responsible for providing the equipment and services if any and configuring its equipment correctly for its access to the Services. VoApps is not responsible for any telephone or Internet connection charges surcharges taxes or for any other amounts incurred by Client in accessing the Services.

9. Consent to Record

9.1. Client agrees and consents that VoApps may record voicemail communications utterances or commands caused or made during the use of the Service in order to perform core functions of the Services and continually improve the product. By using the Service Client expressly consents and grants VoApps the right to record and use these recordings. VoApps agrees not to sell make available or distribute this information without Client’s written consent.

10. Content Submitted to VoApps

10.1. By submitting Content to VoApps Client grants VoApps a worldwide royalty-free and non-exclusive license to reproduce modify adapt and publish the Content solely for the purpose of distributing the Content through the Services. Client understands that all Content made available via the Services is owned or controlled by Client and Client represents and warrants that it has full authority to transmit such Content. Client is solely and entirely responsible for all Content. Client acknowledges that VoApps has no obligation to screen preview or monitor any Content information or any part of an event transaction or transmission provided by or in conjunction with the Services. By using the Services Client agrees that it is solely Client’s responsibility to evaluate the accuracy usefulness completeness appropriateness and legality of any Content or information that is used or that is sent received accessed posted or otherwise transmitted through or in conjunction with the Services including Content that may be offensive indecent or objectionable. Client acknowledges that VoApps is not required to pre-screen Content but that VoApps and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Services. Without limiting the foregoing VoApps and its designees shall have the right to remove any Content that VoApps believes in its sole discretion violates this MSA any applicable laws or any third-party intellectual property rights or is otherwise objectionable. VoApps does not guarantee the accuracy integrity quality or appropriateness of any messages communications or other Content whether provided publicly or privately through or in conjunction with the Services. Client acknowledges the Service simply acts as a passive conduit for the distribution and transmission of Content and information. Under no circumstances will VoApps be liable in any way for any Content including but not limited to for any errors or omissions in any Content or for any loss or damage of any kind incurred by Client as a result of Client’s use of the Service or any Content sent accessed posted or otherwise transmitted or used in conjunction with the Services. Client agrees that they will evaluate and bear all risks liabilities and current potential or outstanding judgements associated with the use of the Service or any Content transmitted using the Service including any reliance on the accuracy completeness or usefulness of such Content.

11. Indemnity

11.1. Client agrees to fully indemnify and hold VoApps and its subsidiaries Affiliates officers agents co-branders or other partners and employees harmless from any and all losses liabilities judgments awards settlements damages fines injuries penalties and costs (including legal fees and expenses) to or in favor of others and all claims causes of action and suits by others including reasonable attorneys’ fees made by any third party due to:

  1. Client’s gross negligence or willful misconduct;
  2. Client’s violation of any intellectual property rights of another or use of any Software or other intellectual property licensed hereunder other than as permitted herein;
  3. Client’s violation of any applicable law (including without limitation the Telephone Consumer Protection Act of 1991 (the “TCPA”));
  4. Client’s use of Service in a manner or for a purpose not specifically described in this MSA;
  5. Client’s breach of its obligations as provided in Section 4 or 10 above; or
  6. Client’s breach of any representation or warranty as provide in this MSA.

11.2. If a claim for which VoApps is entitled to be indemnified under this Section 11 occurs VoApps will:

  1. promptly provide written notice of the claim to the Client; provided however that any delay in providing such notice shall not relieve Client of any of its obligations except to the extent that Client is actually prejudiced by such delay
  2. give Client sole control of the defense and settlement of the claim subject to the limitations in this Section 11; and
  3. provide Client at Client’s expense all reasonable assistance in connection with such claim.

11.3. In no event will Client enter into or VoApps be liable for any settlement that admits any fault of or imposes any monetary liability on VoApps without VoApps’ prior written consent (such consent will not be unreasonably withheld or delayed).

12. Warranties

12.1. VoApps warrants that during the Subscription Term the Services will operate substantially in accordance with the applicable Documentation. Client’s sole and exclusive remedy and VoApps’ sole obligation for VoApps’ non-compliance with the foregoing warranty is the correction of the non-compliance at no additional cost to Client. The warranty set forth in this Section 12.1 will not apply to issues related to:

  1. modification of the Services unless such modification constitutes a configuration change made pursuant to and allowable under the Documentation;
  2. any unauthorized third-party software or hardware that are operated with or incorporated in the Services;
  3. negligence abuse or misapplication of the Services including use other than as set forth in the Documentation;
  4. failure to comply with any minimum system requirements specified in the Documentation; or
  5. failure in Client’s infrastructure or network used to access the Services.

12.2. Client warrants that:

  1. Client is the owner or authorized licensee of the Content and has secured all necessary licenses consents authorizations and waivers for the use and transmission of the Content;
  2. the Content and Client’s use of the Services at all times complies with the terms of the Agreement;
  3. Client will only provide to VoApps the minimum Content necessary to utilize the Services under the Agreement; and
  4. Client will not use the Services to conduct any illegal activity or engage in any other activity which infringes upon the rights of VoApps or any third party. Without waiving any rights or remedies VoApps may have under the MSA at law or in equity VoApps reserves the right to immediately suspend delivery access or performance of the Services if Client breaches this Section 12.2.

12.3. CLIENT’S USE OF THE SERVICE IS AT CLIENT’S SOLE RISK AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY STATED IN SECTION 12.1 NO ADDITIONAL WARRANTIES EXPRESS OR IMPLIED ARE MADE BY VOAPPS TO CLIENT INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT NOR DOES VOAPPS WARRANT THAT THE OPERATION OF THE SERVICES WILL BE FREE FROM UNAUTHORIZED ACCESS OR HACKING ATTEMPTS UNINTERRUPTED OR ERROR-FREE. VOAPPS DOES NOT WARRANT THAT (a) THE SERVICE WILL MEET CLIENT’S SPECIFIC REQUIREMENTS OR EXPECTATIONS; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

13. Limitation of Liability

13.1. IN NO EVENT WILL VOAPPS OR ITS LICENSORS OR ITS AFFILIATES HAVE ANY LIABILITY TO CLIENT FOR INDIRECT INCIDENTAL CONSEQUENTIAL SPECIAL PUNITIVE EXEMPLARY OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER ARISING IN CONTRACT TORT OR OTHERWISE) INCLUDING LOST PROFITS REVENUES GOODWILL LOSS OF OR CORRUPTION OF DATA INTERRUPTED COMMUNICATIONS OR BUSINESS INTERRUPTION AND REGARDLESS OF THE THEORY OF LIABILITY EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES SUCH DAMAGES WERE FORESEEABLE OR IF CLIENT’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

13.2. IN NO EVENT WILL THE AGGREGATE LIABILITY OF VOAPPS TOGETHER WITH ITS LICENSORS AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAYABLE OR PAID BY CLIENT IN THE PREVIOUS TWELVE (12) MONTHS UNDER THE ORDER UNDER WHICH SUCH LIABILITY AROSE. HOWEVER THE FOREGOING LIMITATION WILL NOT APPLY TO CLIENT’S PAYMENT OBLIGATIONS UNDER SECTION 3 OR FOR VOAPPS TO RECOVER PAYMENT FOR USE OF THE SERVICES IN EXCESS OF THE SUBSCRIPTION QUANTITY PURCHASED UNDER AN ORDER.

14. Term Termination and Effects of Termination

14.1. This MSA shall remain in effect and apply to each Order until the earlier of the date (i) of expiration or termination of such Order in accordance with the terms set forth therein; or (ii) otherwise terminated pursuant to the terms set forth in this MSA.

14.2. Client agrees that VoApps may suspend or terminate Client’s use of the Services subject to Sections 14.3 and 14.4 below.

14.3. Reasons for suspension or termination as provided in Section 14.2 above may include but are not limited to (i) if Client or any party under Client’s account violates any applicable federal state or local law or regulation any VoApps policy or any of Client’s obligations under this MSA including the obligations in Section 2.1 Section 4 or Section 10 (including without limitation by generating transmitting or is otherwise connected with any spam or other unsolicited messaging) or (ii) with respect to any other breach of the Agreement if Client has failed to cure the same within thirty (30) days of written notice from VoApps.

14.4. Either Party may terminate the Agreement effective immediately upon notice in the event any assignment is made by the other Party for the benefit of creditors or if a receiver trustee in bankruptcy or similar office shall be appointed to take charge of any or all of such Party’s property or if a voluntary or involuntary petition under applicable bankruptcy or insolvency laws is filed against the other Party or fails to operate in the ordinary course without a successor or for other similar reasons. If the Services as provided by VoApps and described herein or any portion thereof is held by a federal or state governmental agency or by a court of competent jurisdiction to infringe or constitute the wrongful use of any third party’s proprietary rights or to violate the Telephone Consumer Protection Act and such violation could not be cured while still allowing the Service to be used for the purposes agreed upon by the Parties then either Party may terminate the Agreement with a five (5) day written notice and without any further liability to the other Party.

14.5. Any provision of the Agreement that contemplates performance or observance subsequent to the termination of the Agreement and any other provision that by its nature may reasonably be presumed to survive any termination of the Agreement shall survive its termination.

14.6. Unless otherwise provided herein or in an Order the termination of an Order will not operate to terminate any other Orders and the terms of this MSA will continue to govern such Orders until completion or their earlier termination in accordance with this MSA. Upon termination of this MSA or termination or expiration of an Order:

  1. Client will:
    1. cease access and use of the applicable Services;
    2. return or destroy all copies of any Documentation in its possession or control; and
    3. certify in writing to the completion of such return or destruction upon VoApps’ request; and
  2. each Party will cease using the other Party’s Confidential Information. Notwithstanding the foregoing either Party may retain such information as may be required by law or for compliance purposes and the confidentiality obligations of this MSA will continue to apply for as long as the Confidential Information is retained by such Party. Termination will not relieve Client of its obligations to pay:
    1. any Fees accrued or due and payable to VoApps through the effective date of termination; and
    2. all future amounts due under all Orders.

15. Notice

15.1. With respect to notices permitted or required under the Agreement related to the following matters such notices must be in writing and delivered by personal delivery by registered or certified mail (return receipt requested) or by internationally recognized overnight delivery service:

  1. notices of breach;
  2. notices of termination; and
  3. notices regarding actual or potential legal action including claims subject to indemnification hereunder.

15.2. Notices will be deemed given:

  1. on the date of delivery when delivered personally
  2. one (1) business day after deposit for next day delivery with an internationally recognized overnight delivery service and
  3. on the date of delivery when mailed by registered or certified mail (return receipt requested).

15.3. Notices other than those described in Sections 15.1(a) through 15.1(c) above may also be delivered by email and will be deemed given upon personal reply acknowledging receipt. Notices will be sent to the attention of each Party’s Legal Department at their respective addresses provided in the Order. All notices to VoApps will include a copy be sent to contractnotices@nice.com.

16. Choice of Law Venue and Remedies

16.1. This MSA is governed by and construed in accordance with the laws of the State of New Jersey excluding its conflict of law rules. Both Parties hereby consent and submit to the exclusive jurisdiction of the state and federal courts in New Jersey in all questions and controversies arising out of the Agreement. Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”) the United Nations Convention on the International Sale of Goods (“CISG”) and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to the Agreement. To the extent not prohibited by applicable law that cannot be waived the Parties hereby waive and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with the Agreement or any of the transactions contemplated hereunder. In addition to any other remedies available at law or in equity in the event of a breach by either Party of any term of this MSA or an Order including a breach of confidentiality obligations monetary damages may not be sufficient and the non-breaching Party may seek injunctive or other equitable relief to prevent the continuation or recurrence of such breach without the need to prove actual damages. Such relief will be in addition to any damages or other remedies to which the non-breaching Party may be entitled.

17. Assignment

17.1. Neither Party will have the right to assign the Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party. Notwithstanding the foregoing VoApps may assign its rights and obligations under the Agreement to an Affiliate or to any successor by way of merger acquisition or sale of all or substantially all of VoApps’ assets.

18. Confidential Information

18.1. The Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information using at least the same standard of care as the Receiving Party employs for its own confidential information of a similar nature but in any event no less than a reasonable standard of care. The Receiving Party will not use the Disclosing Party’s Confidential Information except as permitted by this MSA. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any other person except to its Affiliates and its and their respective officers directors employees consultants auditors subcontractors and professional advisors (collectively the “Representatives”) who have a need to know and who are subject to a confidentiality obligation regarding such Confidential Information. The Receiving Party is responsible for its Representatives’ compliance with the confidentiality obligations set forth herein.

18.2. Notwithstanding anything to the contrary contained herein the Receiving Party may disclose Confidential Information of the Disclosing Party if required by applicable law regulation order or legal process provided that:

  1. to the extent permitted under applicable law the Receiving Party gives the Disclosing Party prompt written notice of such requirement so that the Disclosing Party has an opportunity to seek a protective order confidential treatment or other appropriate remedy to such order;
  2. the Receiving Party provides the Disclosing Party with reasonable assistance at the Disclosing Party’s expense in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and
  3. the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or legally required subject to any protective order or confidential treatment obtained by the Disclosing Party.

19. Miscellaneous

19.1. This MSA along with any Orders executed hereunder collectively constitute the entire agreement and understanding between the Parties with respect to Client’s use of the Services and all matters related thereto and supersede any other written or oral agreement that the Parties may have had with respect thereto. No statement or inducement with respect to the subject matter by either Party or by any agent or representative of either Party which is not contained in the Agreement is valid or binding between the Parties. No provision of the Agreement may be modified or amended except by a written instrument duly executed by each of the Parties. Any such modification or amendment will not require additional consideration to be effective. Client purchase orders if any are provided for Client’s administrative purposes only and any preprinted terms on them will not apply or have any effect on the terms of the Agreement.

19.2. No provision of this MSA will be deemed waived and no breach deemed excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent by either Party to or waiver of a breach by the other whether express or implied will constitute consent to waiver of or excuse for any different or subsequent breach. All provisions of this MSA are severable and the unenforceability or invalidity of any of the provisions of this MSA will not affect the validity or enforceability of the remaining provisions of this MSA.

19.3. VoApps may modify its terms of service including those contained in this MSA by posting the same on its website from time to time. In the event that any such changes materially impact Client’s rights or obligations hereunder VoApps will use commercially reasonable efforts to notify Client in advance of such changes. Client’s continued use of the Service following any such change shall be deemed Client’s acceptance thereof.

19.4. It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances will any of the employees of one Party be deemed the employees of the other Party for any purpose. This MSA will not be construed as authority for either Party to act for the other Party in any agency or other capacity or to make commitments of any kind for the account of or on behalf of the other Party except to the extent and for the purposes expressly provided for and set forth herein.

19.5. In the event of any conflict or inconsistency between the terms of this MSA and any Order the terms of this MSA shall prevail except to the extent that an Order specifically states that specified terms in the Order supersede specified terms in the MSA in which case such superseding terms will apply only to that Order. The Parties agree that if a URL contained in the Agreement does not work or has stopped working it will notify the other Party and VoApps will then repair or create a new URL to replace the non-working URL. Words importing the singular include the plural words importing any gender include every gender and words importing persons include entities corporate and otherwise; and (in each case) vice versa. The section headings are for ease of reference only and are not intended to affect the interpretation or construction of this MSA. Whenever the terms “including” or “include” are used in this MSA in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference will be interpreted to be illustrative only and will not be interpreted as a limitation on or an exclusive enumeration of the items within such classification.

19.6. Neither Party will be in default of any provision of this MSA or for failure in performance of its obligations hereunder (excluding payment obligations) resulting from acts or events beyond the reasonable control of such Party including acts of God civil or military authority acts or threats of terrorism civil disturbance war riot strike or labor dispute (not related to either Party’s workforce) fires floods infectious disease or act of government (each a “Force Majeure Event”). Such Force Majeure Event to the extent it prevents a Party’s performance or any other obligation under the Agreement will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event.