Master Services Agreement
WEBSCALE NETWORKS, INC.
This MASTER SERVICES AGREEMENT (MSA), (“Agreement”) is made as of the Agreement Effective Date set forth in the Subscription Order Form (SOF) by and between Webscale Networks, Inc. a Delaware corporation, having its principal place of business at 5201 Great America Parkway, Suite 232, Santa Clara CA, 95054 (“Company”) and the Customer identified below. Company and Customer may be referred to in this Agreement each as a “Party” and collectively as the “Parties.”
Company has developed software (the “Software”) used to provide subscription services (the “Webscale Services”) across cloud and data center computing platforms. Customer desires for Company to provide the Webscale Services.
This Agreement sets forth the terms and conditions under which Company will agree to permit Customer to purchase the Webscale Services solely for Customer’s own business purposes. All access to and use of the Webscale Services by or on behalf of Customer are subject to the terms of this Agreement.
This Agreement includes this page, the following Terms and Conditions, all exhibits referenced in the Terms and Conditions, and all SOFs (as defined below) entered into by the Parties under this Agreement. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any proposal or prior agreement, oral or written, and any other communications between the Parties in relation to the subject matter of this Agreement. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” Except as expressly set forth in this Agreement, this Agreement may be modified or amended only in a writing signed by both parties.
This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
TERMS AND CONDITIONS:
1. TERM. The term of this Agreement will begin on the Agreement Effective Date and will continue for a period as defined in the Subscription Order Form or until terminated in accordance with the terms and conditions of this Agreement. For purposes hereof, the “Webscale Ready Date” is the earliest of: (a) the date on which Webscale has completed the Implementation and Migration Services; or (b) 30 days from the Agreement Effective Date provided that such date may be extended by the Company until such time as the Implementation and Migration Services can be completed; or (c) 30 days from the Agreement Effective Date in the event that Customer fails to provide commercially reasonable cooperation and support such that Company is unable to complete the Implementation and Migration Services.
2. WEBSCALE SERVICES.
2.1 Functionality. The Webscale Services (Webscale Pro or Webscale Enterprise or Webscale Cloud Mirror Services or any additional services introduced under the Webscale brand) purchased by Customer are described in a mutually agreed written Subscription Order Form(“SOF”) incorporated into this Agreement. Company may from time to time update, change, or revise the Webscale Services or any component thereof, provided the functionality of the Webscale Services is not materially decreased from that described in the related SOF.
2.2 Subscription. Subject to the terms and conditions of this Agreement, including the payment by Customer of all applicable Fees, during the term of this Agreement Company will provide Customer with a subscription to access and use the Webscale Services, solely for purposes of Customer’s own internal use. All access to and use of the Webscale Services by Customer is personal, non-exclusive, non-transferable, and non-sub licensable.
2.3 Access. Company will provide Customer with an account (an “Account”) through which Customer may enable its employees and contractors (“Users”) to access the Webscale Services. Customer may establish user identifications and passwords through which Users may access the Webscale Services through Customer’s Account (each such User identification and password, a “User ID”). Customer is and will remain solely responsible for all use of the Webscale Services by each User and for compliance by each User with the applicable terms of this Agreement. Customer acknowledges that Customer is and will remain fully responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the Webscale Services through the Account or by any User (whether lawful or unlawful). Any Webscale Services used or transactions facilitated through Customer’s Account or under any User ID will be deemed to have been completed by Customer. In no event will Company be liable for the foregoing obligations or any failure by Customer to fulfill such obligations. Customer will be solely responsible, at Customer’s own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for Customer and each User to connect to, access, and use the Webscale Services.
2.4 Restrictions. Customer acknowledges that the Webscale Services and the databases, Software, hardware, and other technology used by or on behalf of Company to provide the Webscale Services (collectively, the “Technology”), and their structure, organization, and underlying data, information, and source code constitute valuable trade secrets of Company and its third-party providers. As a condition to the use of and access to the Webscale Services, Customer will not, and will not permit any User or other third party to: (a) access or use the Webscale Services except as expressly permitted by this Agreement; (b) access or use the Technology, in whole or in part, except as expressly provided in this Agreement; (c) use the Webscale Services in any unlawful or illegal manner or in any other manner that could damage, disable, overburden or impair the Webscale Services or the Technology; (d) use automated scripts to collect information from or otherwise interact with the Webscale Services or the Technology; (e) use the Webscale Services to send spam or otherwise duplicative or unsolicited commercial email messages; (f) alter, modify, reproduce, or create derivative works of the Webscale Services or the Technology; (g) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Customer’s rights under this Agreement to access or use the Webscale Services, including by providing outsourcing, service bureau, hosting, application service provider or online services to any third party, or otherwise make the Webscale Services available to any third party except for Users as provided in this Agreement; (h) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Webscale Services or the Technology; (i) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Webscale Services or the Technology; (j) use the Webscale Services or the Technology for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, business intelligence, data mining, or competitive purposes; or (k) interfere in any manner with the operation or hosting of the Webscale Services or the Technology.
3. MAINTENANCE AND SUPPORT SERVICES. Subject to the terms and conditions of this Agreement, including the payment by Customer of all applicable Fees, during the term of this Agreement Company will provide Customer with maintenance and support (the “Support Services”) in accordance with Company’s then-current support policies. Company will provide the Support Services only to Customer and will have no obligation to provide any Support Services directly to (or respond to any support or other requests from Customer relating to) any third party, provided that Company reserves the right to contact any third party to facilitate the delivery of Support Services or other services relating to the Webscale Services as deemed necessary by Company.
4. PROFESSIONAL SERVICES. Customer may from time to time request that Company perform certain additional professional or consulting services relating to the Webscale Services (such additional services, the “Professional Services”). The performance of all Professional Services will be as set forth in an SOF, as applicable. All SOFs between the Parties relating to the Professional Services will be issued under and subject to the terms of this Agreement and incorporated herein. Company will perform all applicable Professional Services at the rates for those services set forth in each applicable SOF or, if no rates are set forth in an applicable SOF, at Company’s then-current rates for such Professional Services. Customer agrees to pay Company all such fees as set forth in this Agreement or any such SOF. Any inventions, conceptions, developments, discoveries, works of authorship, or other deliverables or work product that arise from or relate to the Professional Services (collectively “Deliverables”), and all IPR (as defined below) therein or relating thereto, shall be solely owned by Company. To the extent such Deliverables relate to the Webscale Services, the Deliverables will be deemed included in the SOF and provided to Customer under the terms of this Agreement through Customer’s subscription to the Webscale Services. Customer will have no additional licenses or other rights in or to any Deliverables, except as may be expressly set forth in a SOF relating to those Deliverables.
5. FEES AND PAYMENT.
5.1 Fees and Payment. Customer agrees to pay Company all fees set forth in any SOF issued under this Agreement (“Fees”). All Fees for the Webscale Services will be invoiced in accordance with the terms set forth in the applicable SOF. All Fees will be non-refundable once paid to Company (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of one-and-one-half percent (1.5%) per month or the maximum amount permitted under applicable law. If Company requires use of collection agencies, attorneys, or courts of law for collection on Customer’s account, Customer will be responsible for such expenses.
5.2 Taxes. Fees do not include any local, state, federal or foreign taxes, levies, assessments, duties, or other governmental charges of any kind or nature, including, without limitation, any value-added tax (VAT), stamp or other similar tax, social security (or local equivalent), state or regional tax, or income or other federal tax (“Taxes”). Customer is responsible for paying all Taxes that may be imposed by way of the performance of either Party under this Agreement, excluding only Taxes based on Company’s net income. If Company is found or deemed to have a legal obligation to pay or collect any Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.1 Termination For Cause. Either Party may terminate this Agreement or any SOF immediately upon notice to the other Party if the other Party: (a) materially breaches this Agreement or any SOF and fails to remedy such breach within thirty (30) days (except for failure to pay Fees which must be remedied within five (5) days) after receiving notice of the breach from the other Party; (b) materially breaches this Agreement or any SOF in a manner that cannot be remedied; or (c) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets, or ceases to operate in the ordinary course of business. Customer may also terminate this Agreement by notice to Company if Company (i) materially breaches a provision of this Agreement or any SOF that relates to functionality of the Webscale Services or (ii) fails to provide the Service Levels in any four (4) months over any twelve (12) month period, and in either such case fails to remedy such breach within thirty (30) days after receiving notice of the breach from the Customer.
6.2 Suspension. Without limiting Company’s right to terminate this Agreement, Company may suspend Customer’s access to the Webscale Services upon notice to Customer following any breach of this Agreement if deemed reasonably necessary by Company to prevent any damage, injury, or harm to the Webscale Services, Company, any User, or any other Company customer or user.
6.3 Effect of Termination. Upon termination of this Agreement or any SOF for cause under Section 6.1: (a) Company may cease providing access to the Webscale Services under this Agreement; (b) all rights and subscriptions granted to Customer under this Agreement or any SOF will terminate; (c) Customer will immediately cease all access to and use of the Webscale Services; (d) all Fees and other amounts then owed by Customer under this Agreement or any SOF will become immediately due and payable to Company; (e) Customer will immediately either return to Company or, at Company’s discretion, destroy any Company Data (as defined below), User IDs, and Company Confidential Information (as defined below) then in Customer’s possession or control, provided that Customer may maintain all Customer Data (as defined below); and (f) Company will be under no further obligation to retain any Customer Data held by Company. In addition, upon termination of any SOF under Section 6.1 by Company, Customer shall reimburse Company for all expenses incurred by Company under such SOF and pay Company for all Webscale Services or Professional Services provided under such SOF prior to notice of such termination. The following sections will survive termination or expiration of this Agreement for any reason: 2.4 (Restrictions), 5 (Fees and Payment), 6 (Termination), 7 (Ownership), 10 (Disclaimer), 11 (Indemnification), 12 (Limitation on Liability), 13 (Confidentiality), 14 (Governing Law), and 16 (Additional Terms).
7. OWNERSHIP. Company retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Webscale Services, Deliverables, Technology, Company Data, and any additions, improvements, updates, and modifications thereto. Customer acknowledges that Customer is not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to Customer to use any of the foregoing apart from Customer’s right to access and use the Webscale Services under this Agreement. The names and logos of Company and the Webscale Services and the names and logos associated with any other services of Company are trademarks of Company (or its third-party providers), and no right or license is granted to Customer to use them. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights. Customer will not remove or alter any proprietary rights legend on the Webscale Services or any Deliverables, Technology, or Company Data.
8. DATA SECURITY AND DATA PRIVACY.
(a) Company Data. Company may provide Customer with access to certain data, information, and other content through the Webscale Services, Professional Services, Support Services, Technology, and/or Deliverables (“Company Data”). Subject to this Agreement, Customer may access the Company Data without modification solely for Customer’s own internal use in connection with Customer’s use of and access to the Webscale Services. Company uses commercially reasonable measures to ensure the accuracy and reliability of all Company Data, but Company will not be responsible for any erroneous data, information, or content provided through the Webscale Services. Except as expressly provided in this Agreement, Customer is granted no rights in or to the Company Data.
9. REPRESENTATIONS AND WARRANTIES.
9.1 General. Each Party represents, warrants, and covenants to the other Party that: (a) it has and will continue to have during the term hereof, all rights, power, and authority necessary to enter into this Agreement and perform all of its obligations thereunder; (b) the performance of its obligations under this Agreement does not and will not violate any law applicable to such Party’s performance, any rights of any third party, or any agreement by which such Party is bound; and (c) it will procure all rights, certificates, licenses, permits or other approvals required for its performance under this Agreement.
9.2 Performance. During the term of this Agreement, Company represents and warrants to Customer that Company will use commercially reasonable efforts to maintain and verify that the Webscale Services operate in accordance with the documentation for the Webscale Services provided to Customer by Company (“Documentation”) at or above the applicable service levels set forth in Service Levels Agreement and Support Services located on our website at https://www.webscalenetworks.com/sla . Company’s sole obligation and Customer’s sole and exclusive remedy in the event of any failure by Company to comply with the foregoing sentence will be for Company to: (a) at its option, remedy the failure or re-perform the affected Webscale Services; and (b) pay Customer any applicable Service Level credit.
10. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, WEBSCALE SERVICES, PROFESSIONAL SERVICES, SUPPORT SERVICES AND ALL WEBSCALE NETWORKS DATA PROVIDED THROUGH THE WEBSCALE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY “AS IS” AND “AS AVAILABLE,” AND WEBSCALE NETWORKS AND ITS THIRD-PARTY PROVIDERS EXPRESSLY DISCLAIM, AND CUSTOMER DISCLAIMS ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD THERETO OR TO ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AVAILABILITY OR ERROR-FREE OPERATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WEBSCALE NETWORKS, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.
11.1 General. Each Party (the “Indemnifying Party”) will defend the other Party (the “Indemnified Party”) and its officers, directors, employees, and agents (its “Related Parties”) from and against any claim, allegation or action (any “Action”) brought against the Indemnified Party or one of its Related Parties (other than by the Indemnified Party itself or another of its Related Parties) to the extent relating to, resulting from, or arising out of the gross negligence or willful misconduct of the Indemnifying Party in the performance (or failure to perform) any of its obligations under this Agreement. The Indemnifying Party will further pay those losses, liabilities, damages, fees, expenses, and costs (including reasonable attorneys’ fees and court costs) (“Losses”) finally awarded against the Indemnified Party or one of its Related Parties in any such Action or the Losses agreed to in a monetary settlement of such Action, as applicable.
11.2 By Company. Company will defend Customer from and against any Action brought against Customer by a third party (other than a Related Party of Customer) that the use by Customer of the Webscale Services infringes any United States patent, or copyright or misappropriates any trade secret in existence under any laws of any state within the United States. Company will pay those Losses finally awarded against Customer in any such Action or the Losses agreed to in a monetary settlement of such Action, as applicable. If Customer is, or Company reasonably believes Customer may be, enjoined from using the Webscale Services due to an Action covered by this Section, Company may procure the right for Customer to continue using the Webscale Services, replace or modify the Webscale Services so that it becomes non-infringing, or terminate this Agreement and provide Customer with a refund of any pre-paid amounts applicable to the Webscale Services, if any. Company will have no obligation under this Section or otherwise with respect to any Action or Losses in the case of: (a) any use of the Webscale Services other than by Customer; (b) any use of the Webscale Services not under and in accordance with this Agreement; (c) any use of any of the Webscale Services in combination with products, equipment, services, processes, software, data or information not supplied by Company; or (d) any modification of or enhancement to the Webscale Services other than by Company. THIS SECTION CONSTITUTES COMPANY’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF IPR OR ANY OTHER RIGHTS RELATING TO THE SOFTWARE OR THE WEBSCALE SERVICES.
11.3 By Customer. Customer will defend Company and its Related Parties from and against any Action brought against Company or one of its Related Parties (other than by Company or another Company Related Party of Company) to the extent relating to, resulting from, or arising out of any: (a) breach by Customer of Section 2.3, 2.4, or 8.1(b); (b) except in the case of a breach by Company of this Agreement, use of the Webscale Services by Customer or any User; (c) access to or use of any Customer Data by the Webscale Services, except in the case of a breach by Company of this Agreement; or (d) any violation of any law, rule or regulation caused by the use of or access to the Webscale Services by Customer or any User, or by Customer’s business, products, or services. Customer will pay the Losses finally awarded against Company in any such Action or the Losses agreed to in a monetary settlement of such Action, as applicable.
11.4 Conditions. All obligations of each Party to defend or indemnify the other Party or any Related Party under this Agreement are conditioned upon the Indemnified Party providing the Indemnifying Party with: (a) prompt notice of any claim for indemnification or defense after receiving notice thereof; (b) sole control over the defense and settlement of such claim, provided that any settlement that will require the Indemnifying Party to assume any liability other than the payment of monies will be subject to the Indemnifying Party’s prior written consent; and (c) reasonable assistance in such defense or settlement (at the Indemnifying Party’s expense).
12. LIMITATION ON LIABILITY. EXCEPT AS RELATED TO INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OF OR ACCESS TO ANY WEBSCALE SERVICES OR TECHNOLOGY (OR ANY COMPANY DATA PROVIDED THROUGH THE WEBSCALE SERVICES), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE SERVICES. EXCEPT FOR INDEMNIFCATION OBLIGATIONS, COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE TECHNOLOGY, AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO COMPANY HEREUNDER IN THE TWELVE (12)-MONTH PERIOD PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY. CUSTOMER AGREES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13.1 Protection. Each Party (the “Receiving Party”) may from time to time receive or otherwise obtain data or information regarding the business, finances, services or technology of the other Party (the “Disclosing Party”), including, without limitation, technical, advertising, marketing, sales, financial, pricing, employee, customer, and planning information (“Confidential Information”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement and will disclose the Confidential Information of the Disclosing Party only to the employees or permitted contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner as the Receiving Party protects its own confidential information of a similar nature and with no less than reasonable care.
13.2 Exceptions. The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to make such disclosure without any confidentiality restrictions; or (c) is, or through no fault of the Receiving Party becomes, generally available to the public. The Receiving Party will also be permitted to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order of a court of similar judicial, regulatory or administrative body, provided that the Receiving Party notifies the Disclosing Party in advance of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
13.3 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies thereof (a) promptly upon the request of the Disclosing Party or (b) when such Confidential Information is no longer needed in connection with its performance under this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with the foregoing obligations.
14. GOVERNING LAW. This Agreement shall be interpreted under California law without regard to choice or conflicts of law rules and the parties agree to submit to the exclusive jurisdiction of the applicable state or federal courts in Santa Clara County, California.
15. FORCE MAJEURE. Neither Party will be held responsible for failure or delay in the performance of any obligation under this Agreement, with the exception of the obligation to pay Fees, if such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, labor disputes, fire or other loss of facilities, accident or any other cause beyond its control (each, a “Force Majeure”). If the performance of any obligation under this Agreement by either Party is prevented, restricted or interfered with by reason of a Force Majeure event, the Party whose performance is so affected, upon giving prompt notice to the other Party, will be excused from such performance to the extent of such Force Majeure event, provided that the Party so affected will take all reasonable steps to avoid or remove such causes of nonperformance and will continue performance hereunder with dispatch whenever such causes are removed.
16. NOTICES. Any notice, demand, consent, approval, request or other communication or document to be provided hereunder to a Party shall be (a) in writing and addressed to the address for such Party as set forth on the first page of this Agreement and (b) deemed to have been provided (i) 48 hours after being sent by certified first-class mail in the United States mails, postage prepaid, return receipt requested; (ii) the second business day after having been deposited for second-day delivery with a national courier service or the next business day after being deposited for overnight delivery with such courier service; or (iii) upon being provided by hand or other actual delivery to such Party. Either Party may designate a substitute address for the address set forth on the first page of this Agreement in accordance with the terms of this Section.
17. ADDITIONAL TERMS. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. Neither this Agreement nor any rights or obligations of Customer hereunder may be assigned, delegated, or transferred by Customer (whether in whole or in part, including by sale, merger, consolidation, or operation of law or otherwise) without the prior written approval of Company. Any assignment in violation of the foregoing will be null and void. Company may assign this Agreement to any party that assumes Company’s obligations hereunder. Company may subcontract its obligations under this Agreement, provided that Company remains responsible for compliance with the applicable terms of this Agreement as to those obligations. The Parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. Company may reference Customer as a user of the Webscale Services and use Customer’s name and logo, as applicable, in listings of users of the Webscale Services appearing on the Company web site and for other marketing and promotional purposes relating to the Webscale Services.