This Master Service Agreement (“Agreement” or “MSA”) dated 01 June, 2022 is made by and between Rackbank Datacentres Private Limited, a company registered under the laws of India with its primary offices situated at Building No 1, Crystal IT Park (SEZ), Ring Road, Indore - 452014 (hereinafter referred to as “Service Provider" which expression shall include its successors and assignees) and [●], a company incorporated under laws of [●] and having its primary offices situated at [●] (hereinafter referred to as the “Customer" which expression shall include its successors and permitted assignees) shall become effective from [●] (“Effective Date”).
Service Provider and Customer shall individually be referred to as a “Party” and collectively as “Parties”.
The Parties agree that as of the Effective Date, this Agreement shall constitute the complete exclusive statement of the agreement between them and that this Agreement shall supersede and replace any prior agreements between the Parties regarding the subject matter herein.
WHEREAS this Agreement describes the terms and conditions under which the Customer will obtain Service Provider’s Services (defined later) and the Parties intend that any specific business transactions will be implemented through individual separately executed Purchase Orders (defined later) unless otherwise provided under Part A of Schedule I to this Agreement.
WHEREAS the following Schedules are attached hereto and incorporated into this Agreement by this reference:
Schedule I, Part A – Specific Terms Addendum and Schedule 1, Part B (together referred to as “STA”)Schedule II – Service Level Agreement (“SLA”)
NOW, THEREFORE, in consideration of the mutual promises herein, Service Provider and the Customer agree as follows:
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity referred to, but only for so long as such control exists;
1.2 “Agreement” means, collectively, the MSA, any applicable Purchase Order, STA, AUP, SLA and other addenda which govern the provision of Services mutually agreed between the Parties.
1.3 “Applicable Laws” mean all laws/rules/regulations applicable on the Services according to the governing laws of the Governing Law Country mentioned under Section 7 of the STA.
1.4 “AUP” means Service Provider’s Acceptable User Policy found HERE
1.5 “Billing Commencement Date” means the date on which the billing period shall commence as mentioned under Section 9 of STA.
1.6 “Business Day” means Monday through Saturday, excluding public holidays, in the country whose laws govern this Agreement.
1.7 “Confidential Information” means non-public information disclosed by one party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
1.8 “Cure Period” shall mean the period mentioned under Section 12 of the STA.
1.9 “Customer Configuration” means an information technology system (hardware, software and/or other information technology components) which is the subject of the Services or to which the Services relate.
1.10 “Customer Data” means all data which Customer receives, stores, or transmits on or using the Customer Configuration.
1.11 “Due Date” means the date on which a period of thirty (30) days from the date of a valid invoice raised by the Service Provider on the Customer for the Services.
1.12 “End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Customer’s Content; or (b) otherwise accesses or uses the Services under Customer’s account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any content under their own account with the Service Provider, rather than under Customer’s account.
1.13 “Fees” mean the fee payable by the Customer to the Service Provider for the Services as per the terms of this Agreement.
1.14 “Hosted System” means a Customer Configuration provided by the Service Provider for Customer’s use of Services.
1.15 “Initial Term” means the term of this Agreement as specified under Section 13 of STA.
1.16 “Jurisdiction” means the courts of law situated in and having jurisdiction in the city/region mentioned under Section 8 of the STA.
1.17 “Purchase Order(s)” shall mean all purchase orders pertaining to the Services and/or additional/supplemental services, raised by the Customer and duly accepted by the Service Provider under this Agreement.
1.18 “Renewal Term” means the automatic renewal period following expiry of the Initial Term, for consecutive rolling 90 day terms unless otherwise provided under the STA.
1.19 “Services” shall mean all services provided by the Service Provider to which the Customer subscribes to, by the virtue of this Agreement as described under Schedule I, Part B and/or any subsequent Purchase Orders.
1.20 “Service Level Agreement” or “SLA” means the Services Levels Agreement entered between the Parties as provided under Schedule II to this Agreement.
1.21 “STA” means the Specific Terms Addendum provided under Schedule I to this Agreement.
1.22 “Tax” means all taxes applicable on the provision of Services as per the Applicable Laws.
2. Terms Governing Provision of Services
The Parties agree that this Agreement shall be read together with the purchase order(s) for Services issued by the Customer and accepted by Service Provider, and together they shall constitute the terms and conditions on which the Services shall be provided by Service Provider to the Customer. In case of conflict among different documents or sections, each of the following would prevail over the subsequent ones:
Subject to the terms and conditions set forth in this Agreement, Service Provider shall provide the Services to the Customer. In case the relevant section in Schedule 1, Part B is blank, services mentioned in the Purchase Order issued by the Customer and duly accepted by the Service Provider shall constitute Services.
4. Change in Scope of Services
4.1 Customer may request additional services during the Term by (i) executing a statement of work prepared by the Service Provider (“SOW”); or (ii) by placing a Purchase Order. SOWs and Purchase Orders may also be collectively referred to as “Orders”. SOWs will not be effective unless signed by both Parties. Customer and Service Provider may execute multiple Orders under this Agreement and all Orders will be governed by the terms and conditions of this Agreement. Each additional Order will supplement rather than replace the prior Orders, unless otherwise stated by the Parties in writing.
4.2 If Customer requests a change to an existing Order, Service Provider will prepare a change order (“Change Order”) as per the Change Request Procedure provided under Section 14 of the STA which will be effective when signed by the Parties. Change Orders will amend existing Orders but will not replace them, unless otherwise agreed to by the Parties in writing. Service Provider has no obligation to execute, or to amend, any Order, including any Change Order, with Customer.
5. Lock-In Period
Customer acknowledges and accepts that the provision of Services by the Service Provider shall be subject to Lock-In Period as provided under Section 11 of STA. The Customer shall not be entitled to terminate this Agreement during the Lock-In Period for any reasons whatsoever except for the sole reason as specified under Clause 13.3 (a) and (b). Notwithstanding anything contained herein, if the Customer terminates this Agreement before the expiry of Lock-In Period, then the Customer undertakes and agrees to pay the Service Provider, on or before the effective date of termination of this Agreement, an early termination compensation of an amount equivalent to the fee payable for the balance period of such Lock-In Period, calculated as per such effective date of termination of this Agreement.
6. Fees and Payment Terms
6.1 The fees that the Service Provider shall charge for Services shall be agreed upon by Parties from time to time and set forth in the relevant Purchase Order. Unless otherwise agreed between the Parties in writing, Fees for the Services will begin to accrue on the Billing Commencement Date. Service Provider will invoice the Customer for the Services in advance at the beginning of every Billing Cycle, as defined under Section 10 of the STA. Customer shall pay all undisputed invoices raised by the Customer on or before the Due Date. Partial months will be billed on a pro rata basis based on a thirty (30) day month and Customer will pay for the Services in accordance with this Section.
6.2 Invoices that are not disputed within thirty (30) days of the invoice date are conclusively deemed to be accepted as accurate by Customer.
6.3 Any overdue amounts owed by Customer will accrue interest at the lesser of two percent (2%) per month or the highest rate permitted by Applicable Laws.
6.4 In the instance if the actual consumption by the Customer under this Agreement exceeds the mutually agreed consumption levels as per the scope of Services, the Parties agree and affirm that the Service Provider shall be entitled to raise a demand note evidencing such excess consumption, charging the Customer as per the agreed rates calculated on a pro-rata basis and the Customer undertakes to honour such undisputed demand note(s) and pay the additional fee charged therein. The Service Provider undertakes that it shall provide the necessary documents/evidences to establish such excess consumption of Services on part of the Customer.
6.5 All amounts due to the Service Provider under the Agreement are exclusive of Tax. Service Provider shall invoice all taxes applicable on the Services as per Applicable Laws to the Customer and Customer shall pay Service Provider any Tax that is due or provide Servic Provider with satisfactory evidence of Customer’s exemption from the Tax in advance of invoicing. Customer shall provide Service Provider with accurate and adequate documentation sufficient to permit Service Provider to determine if any Tax is due.
6.6 All payments to the Service Provider shall be made without any withholding or deduction for any taxes except for local withholding taxes. Customer agrees to providethe Service Provider with accurate factual information and documentation of Customer’s payment of any such local withholding taxes in a timely manner. Service Provider shall remit such cost to Customer in the form of a credit on Customer’s outstanding account balance following receipt of sufficient evidence of payment of any such local withholding taxes as per ApplicableLaws.
7. Representations and Undertakings
7.1 Each Party represents that:
7.2 Customer represents that except to the extent caused by Service Provider’s breach of this Agreement, (a) Customer is responsible for all activities that occur under the Hosted System, regardless of whether the activities are authorized by the Customer or undertaken by the Customer, Customer’s employees or a third party (including Customer’s contractors, agents or End Users), and (b) Service Provider is not responsible for unauthorized access (not attributable to the Service Provider) to Customer’s Hosted System.
7.3 Customer further represents that it owns and/or has the lawful right to possess contents, materials and the data (including the Customer Data) which runs on the Services or causes to interface with the Services or which is uploaded for the Services or posted or submitted or otherwise used during availing of the Services by the Customer and such contents do not violate any terms of this Agreement or any Applicable Laws. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data and content on the Hosted System.
7.4 Customer agrees to utilize the Services strictly in accordance with the AUP. Service Provider shall be entitled to modify the AUP from time to time and such amended AUP, made available at the website of Service Provider, shall be applicable. In all events where the Parties have mutually agreed to modify the terms of the AUP and such modifications shall be captured under this Agreement, the terms so modified shall prevail over the AUP and shall be read harmoniously with the terms of the AUP. If no such modifications are mentioned under this Agreement, then the standard AUP shall remain applicable.
7.5 Service Provider represents that the Services provided under this Agreement are not in violation of any Applicable Laws and undertakes to provide Services in accordance with this Agreement.
7.6 Service Provider does not provide any support or services to End Users unless Service Provider has a separate agreement with the Customer stating otherwise or an End User obligating us to provide such support or services.
8.1 Each Party (“Receiving Party”) agrees that it will not disclose to third party/ies any information belonging to the other Party (“Disclosing Party”) which is provided to it by the Disclosing Party before, during and after the execution of this Agreement. All such information belonging to the Disclosing Party and provided to the Receiving Party shall be considered Confidential Information. Confidential Information includes prices, quotations, negotiated issues made before the execution of the Agreement, server configuration, design and other related information and information relating to the contents to be transmitted to and from the servers of Service Provider or Customer. All information provided by a Party to the other shall be considered confidential even if it is not conspicuously marked as confidential.
8.2 Notwithstanding the foregoing, neither Party shall have any obligations regarding non-use or non-disclosure of any confidential information which (i) is already known to the Receiving Party at the time of disclosure; (ii) is or becomes part of the public domain without violation of the terms hereof; (iii) is shown by conclusive documentary evidence to have been developed independently by the Receiving Party without violation of the terms hereof; (iv) is disclosed by the Disclosing Party to a third party without similar restrictions on the third party's rights; or (v) is received from a third party without similar restrictions and without violation of this or a similar agreement.
8.3 Each Party agrees not to disclose any of the Confidential information obtained from the other under any circumstances to any third party unless it is so required by law to be disclosed or if it falls under any of the exceptions mentioned in Clause 8.2 above. Any disclosure to be made by the Customer as per the requirements of law shall be so disclosed on providing advance notice to Service Provider with the reasons for such disclosures.
8.4 The terms and conditions of this Agreement, and all annexes, attachments and amendments hereto and thereto shall be considered Confidential Information. No news release, public announcement, advertisement or publicity concerning this Agreement and/or its contents herein shall be made by either Party without the prior written approval of the other Party unless such disclosure or public announcement is required by applicable law. Notwithstanding any provision to the contrary, Service Provider shall be entitled to freely disclose the information that it is providing / has provided the Services to the Customer in its marketing, promotion or other materials.
9. Temporary Suspension of Services
9.1 Service Provider may suspend or limit Customer’s or any End User’s right to access or use any portion or all of the Services immediately upon prompt notice to the Customer if the Service Provider determines:
In all events of suspension under Clause 9.1(a)(i) and Clause 9.1(a)(ii), the Service Provider must furnish a detailed Root Cause Analysis (RCA) Report to the Customer evidencing and justifying such reason for suspension and the cause for such suspension attributable to the acts and/or omissions of the Customer/End User. Further, Service Provider will limit a suspension and/or limitation in time and scope as reasonably possible under the circumstances
9.2 Effect of Suspension.
In the event Service Provider suspends Customer’s right to access or use any portion or all of the Services under Clause 9.1 above:
10. Data Privacy
10.1 The Service Provider shall without limiting Clause 15 or Customer’s obligations under Clause 7.3 , implement and undertake reasonable and appropriate measures designed to help the Customer secure Customer Data against accidental or unlawful loss, access ordisclosure.
10.2 All data privacy laws/rules as per the laws of the Governing Law Country (defined under Section 7 of STA) shall be applicable to the Services. Further, the Parties agree and affirm that in all cases where the Customer Services pertain to colocation services only, the Service Provider shall not have any access to Customer Data. Hence, this clause will not be applicable in such cases.
10.3 The Customer acknowledges that the Service Provider may require to disclose information and data provided to it by Customer, including information that identifies an individual or a person either directly or indirectly and alone or in combination with other information available (such identifying information being referred to as “Personal Information”), such as a person’s name, phone number and email address, to Service Provider’s affiliates and associates to carry out Services under this Agreement. Service Provider may also disclose Personal Information obtained from Customer if required (i) under applicable laws including in connection with law enforcement, fraud prevention, or other legal action, or as required by law or regulation, or (ii) for optimisation of Services or (iii) if it reasonably considers it necessary to protect itself, its customers, or the public; All disclosures under this Clause shall be subject to prior intimation of such disclosure by the Service Provider to the Customer unless specifically barred thereto.
10.4 The Customer shall be deemed to have consented to disclosure of Personal Information by the Service Provider in the instances mentioned under Clause 10.3 above by providing such Personal information to the Service Provider in the course of Service Provider’s performance of the Services.
10.5 The Service Provider hereby undertakes that the Service Provider shall comply with all applicable data privacy laws while handling Personal Information belonging to the Customer. All such disclosures and compliances will be governed and monitored by the Service Provider’s dedicated Committee on GDPR and Data Protection Laws which shall ensure Service Provider’s compliance with such applicable data protection laws. However, the Parties agree and affirm unequivocally due to the nature of the Services, the Service Provider does not have any access to Customer Data and hence cannot be held liable for any losses/damages that the Customer may suffer on account of Customer Data.
11.1 Service Provider will indemnify, defend and hold harmless the Customer including their, directors, employees, agents and contractors from any and all liability, damages, costs and expenses (including reasonable attorneys’ fees and expenses) that the Customer may incur as a result of (a) gross negligence or wilful misconduct of the Service Provider solely, in provision of Services to the Customer; and (b) .any third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights, and undertakes to pay the amount of any adverse final judgment or settlement.
11.2 Customer will defend, indemnify, and hold harmless the Service Provider, its Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) Customer’s or any End Users’ use of the Services (including any activities and use by Customer’s employees and personnel); (b) violation of this Agreement or applicable law by the Customer or Customer’s End Users; or (c) a dispute between Customer and any of its End User (d) an allegation that any of Customer Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement; except in cases where such third party claim is solely attributable to gross negligence or wilful misconduct on part of the Service Provider.
11.3 The obligations under this Section 11 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.
12. Limitation on damages
12.1 Notwithstanding anything in the Agreement to the contrary:
12.2 Neither party (nor any of its representatives) is liable to the other party for any indirect, special, incidental, exemplary, or consequential loss or damages of any kind. Neither party is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either party be liable to the other for any punitive damages; or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill, or reputation.
12.3 As an essential part of the Agreement, the liquidated damages payable under the SLA(s) shall be the creditsstated in any applicable SLA(s) which are Customer’s sole and exclusive remedy for Service Provider’s failure to meet those guarantees for which credits are provided; and the parties agree that the credits are not a penalty, are fair and reasonable and represent a reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum credit(s) for failures to meet any applicable SLA(s) for any calendar month shall not exceed 100% of the then current monthly recurring Fee for the Services. Customer is not entitled to a credit if Customer is in breach of the Agreement at the time of the occurrence of the event giving rise to the credit, until such time as Customer has remedied the breach. No credit shall be due if the credit would not have accrued but for Customer’s action or omission.
13. Term and Termination
13.1 Term: The term of this Agreement shall commence on the Effective Date and shall remain valid till the expiry of Initial Term and any Renewal Term thereto, unless terminated under Clause 13 of this Agreement.
13.2 Termination for Convenience: Either Party may terminate this Agreement for any reason by providing the other Party, a written notice of termination at least ninety (90) days prior to such date of termination.
13.3 Termination for Cause:
14. Effects of Termination
The Parties agree and affirm that upon the date of termination/expiry of this Agreement:
THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, SERVICE PROVIDER AND ITS AFFILIATES (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
16.1 Customer’s routine communications to the Service Provider regarding the Services should be sent to Customer’s Account Manager via authorised e-mail ID of the Customer. To serve any notice/communications regarding termination of the Agreement for breach, indemnification, or other legal matter, Customer shall send the same via electronic mail and/or through postal service to the address mentioned under Section 3 of theSTA.
16.2 All communications by the Service Provider with respect to this Agreement should be sent to the Customer via electronic mail/fax/registered post/courier at the address or email address mentioned under Section 6 of the STA.
17. Force Majeure
A Party shall not be liable to the other Party if, and to the extent, that the performance of any of its obligations under this Agreement (excluding obligations in relation to the Customer’s payment for Services already rendered and/or being rendered during the Force Majeure event) is prevented, restricted, delayed or interfered with due to circumstances beyond the reasonable control of that Party, including, but not limited to, circumstances such as change in legislation, fire, flood, explosion, epidemic, accident, act of God, war, riot, terrorist activities, strike, lockout and/or act of government (Force Majeure).
The Party claiming an event of Force Majeure as aforesaid shall promptly notify the other Party in writing, and provide full particulars of the event of Force Majeure and the date of first occurrence thereof, as soon as possible after the event and also keep the other Party informed of any further developments. The Party so affected shall use its commercially reasonable efforts to remove the cause of non-performance, and shall, unless otherwise agreed to by the other Party in writing, resume performance hereunder with utmost dispatch when such cause of non-performance is removed.
18. Governing Law and Dispute Resolution
18.1 This Agreement shall be governed by the laws of the region/country as provided under Section 7 of the STA.
18.2 In case of any disagreement or dispute between the Customer and the Service Provider, the dispute will be resolved in the manner as outlined hereunder. The Customer and the Service Provider shall make every effort to resolve amicably by direct informal negotiations any disagreement or dispute between them on any matter connected with this Agreement or in regard to the interpretation thereof. If, after thirty (30) days from the commencement of informal negotiations, the Customer and Service Provider have not been able to resolve the dispute amicably, such differences and disputes shall be referred, at the option of either Party, to arbitration by a single arbitrator to be mutually agreed upon between the Parties. In the event of no consensus, the courts of the relevant Jurisdiction shall appoint an Arbitrator. Such arbitration will be conducted in accordance with the prevailing arbitration laws/rules of such country whose laws govern this Agreement. The arbitration shall take place in the Jurisdiction city, unless otherwise mutually agreed by the Parties and shall be conducted in the English language.
Neither party shall assign this Agreement and/or any Purchase Orders without the prior consent of the other party, except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control. The Service Provider may use its Affiliates or subcontractors to perform all or any part of the Services, but the Service Provider remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if the Service Provider performed the Services itself.
20.1 Each Party acknowledges and agrees that the other Party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property and any hardware provided by such Party in relation to this Agreement.
20.2 Neither Party shall remove or misuse or modify any copyright, trade mark or any other proprietary right of the other Party which is known by virtue of this Agreement, in any circumstances.
21. Declaration with regard to Internet Bandwidth and Public IPs
The Service Provider hereby declares that in all instances where Internet Bandwidth and/or public IPs are provided to the Customer as a part of the Services, such Internet Bandwidth and/or public IPs are sourced through Tata Communications (formerly VSNL) and Vodafone India Limited, a ‘Class A’ ISP License holding company incorporated under the Companies Act, 1956. Tata Communications (formerly VSNL) and Vodafone India Limited are the Service Provider, owned and managed by the same promoter group as the Service Provider. All billings on account of the said Internet Bandwidth and/or public IPs that may form the part of the Services under this Agreement, are done by the Service Provider on behalf of Tata Communications (formerly VSNL) and Vodafone India Limited.
22.1 The provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of this MSA including all terms of the Agreement requiring Customer to pay any Fees for Services provided prior to the time of expiration or termination.
22.2 The Agreement constitutes the complete and exclusive understanding between the Parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.
22.3 Amendment/Modification of this Agreement: This Agreement may be amended only by the written agreement of both Parties.
Except where otherwise expressly stated herein, and subject to the limitations set forth under this Agreement, the rights and remedies provided for herein are cumulative and not exclusive of any rights or remedies that a Party would otherwise have.
22.5 Each Party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement and that they have been taken into account and reflected in determining the consideration to be given by each Party under this Agreement and in the decision by each Party to enter into this Agreement.
22.6 Service Provider and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joist venture, employment, franchise or agency between the Service Provider and Customer. Neither the Service Provider nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
22.7 The Parties agree that there will be no third party beneficiaries to this Agreement, including, but not limited to any Authorized Person, end user, customer or the insurance providers for either Party.
22.8 No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party.