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NetMedX Master Services Agreement
NetMedX Master Services Agreement
Version 1.0
CONTINGENT NETMEDX MASTER SERVICES AGREEMENT This Master Services Agreement (“Agreement”) dated INSERT DATE, by and between Contingent Network Services, LLC ("CNS"), an Ohio limited liability company (“CNS”) with its principal offices located at 10008 International Boulevard, Cincinnati, Ohio 45246 and INSERT CLIENT NAME, ("Client"), shall prevail and take precedence over all terms and conditions that are preprinted, typed, stamped or handwritten on any quotation form, invoice, acknowledgment form, or purchase order utilized by either party in the transactions covered by this Agreement. The pricing and terms of this Agreement are valid for (30) thirty days from the date submitted to the Client. This Agreement provides the tasks, timeframes and associated pricing for performance of NetmedX services for the Client throughout the Client’s network(s). NetmedX services shall begin upon execution of the Agreement in order to facilitate a direct relationship between CNS and Client for operations support of the Client’s installed network(s). CNS shall perform select NetmedX services that may include one or more of the following: 1.0 Field Service; 2.0 Call/Problem Management; and 3.0 Network Management/Monitoring for the Client. Support will be provided for the network infrastructure including elements listed below in the scope of work. Parts will be provided locally or shipped upon request. Response and repair times will be “best effort”. CNS and Client agree as follows: 1.0 FIELD SERVICE (BREAK-FIX) CNS shall provide Field Service throughout the Client’s network(s). CNS will receive a request for dispatch from the Client or other appropriate source and then respond according to the needs of the Client, its partners and/or its customers to troubleshoot and repair problems on-site that arise in the “field” wherever that may me based on a 7x24 time line with the response interval defined below. 1.1 CNS ORGANIZATION For the purposes of this SOW, three (3) CNS organizations will be directly responsible for providing Field Services: 1) CNS Customer Care Center; 2) CNS Logistics, and 3) CNS Field Services Department. Within two (2) business days of Agreement signature, CNS shall identify the CCA, the primary contact within CNS, all managers involved in escalation, and the contact information concerning each.  CNS Customer Care Center: CNS will assign one (1) Customer Care Agent (CCA) and an appropriate number of alternate CCAs to Client for Field Services. The CCA is the primary interface between CNS, the Client’s Technical Point of Contact (TPOC) and the Field Services Department (Technicians). The CCA shall be the primary point of contact, however, when they are absent or not scheduled, a substitute CCA (the “Substitute CCA”) will be available to Client at all times (24x7x365).  CNS Logistics: At the direction of the Client’s TPOC and the CCA, CNS Logistics will express mail replacement components to the Field Technician in the field. CNS Logistics will also receive failed components from the Field Technicians (the replaced component) and store these components pending further directions from Client. CNS represents and warrants that CNS Logistics will provide competitive prices for providing express mail replacement components versus all reasonable substitutes. Unless CNS Logistics is providing these services without up-charge from the USPS, Fed Ex, UPS or another nationally recognized express mail provider, Client will have auditing rights on CNS Logistics services. Up to three times per year, Client will have the right to (or to cause CNS to) submit up to ten sample transactions for comparative bids or assessment (or to otherwise objectively compare prices) by an alternative shipper. If any such audit reveals that CNS is charging more than 10% more than the lowest alternative for any given transaction in more than 25% of the sample, then Client may terminate this Agreement without breach, or may require CNS to use the least expensive dependable alternative logistics shipper.  Field Services Department: CNS shall utilize its nationwide Certified network of subcontracted labor for these services. Field Technicians will be chosen for support based upon availability to perform the work, distance to the site where the work will be performed, and/or any unique skills or tools that may be required to perform unique or specific tasks associated with the task assigned. In special circumstances and with the consent of the Client, CNS may dispatch its own employees to resolve problems that are erratic, intermittent, or particularly difficult to resolve (additional costs for travel shall apply). 1.2 CLIENT SUPPORT ORGANIZATION Client shall assign a technical point of contact (TPOC), which shall be the primary interface with CNS resources responsible for service delivery. Within two (2) business days of Agreement signature, Client shall identify the means of contacting the TPOC and the Client managers involved in escalation and their contact information. 1.3 GEOGRAPHIC COVERAGE CNS shall provide Field Services throughout North America for Client. Alaska, Hawaii, Puerto Rico, and Canada will be evaluated upon request of Client (special pricing and other provisions may apply). 1.4 EQUIPMENT AND INFRASTRUCTURE COVERED CNS shall provide on-site troubleshooting and equipment replacement services for the following elements within the Client’s site(s) infrastructure:  Main Distribution Frame (MDF) cable plant and all network electronic equipment  Backbone network cable extensions including the cable, connectors, faceplates/surface mount boxes and patch cords  Circuit extensions including the cable, connectors, faceplates/surface mount boxes, and patch cords  Miscellaneous equipment supporting the backbone network such as Uninterruptible Power Supplies (UPS), patch panels, surge protectors, punch-down blocks, patch cords and hubs (if the foregoing are provided by the Client)  Other upon mutual Agreement between CNS and Client 1.5 EXCLUSIONS CNS will not provide maintenance services for the following:  Equipment and infrastructure that is not owned by the Client  Equipment that is part of the facility infrastructure and not part of the network per se, such as electrical circuits, HVAC, or other mechanical equipment  CNS will not provide warranty repair services on the behalf of any manufacturer as part of this Agreement  Software of any kind not specifically described in paragraphs herein CNS is willing to consider providing support of such excluded items, but such support will need to be evaluated and arranged on a case-by-case basis and at a price mutually agreeable to all parties. 1.6 TOOLS REQUIRED CNS Field Technicians will carry the tools required to support Client’s needs. 1.7 DEPOT SERVICES, PARTS REPLACEMENT AND PARTS MANAGEMENT For miscellaneous or ancillary material components that will need to be replaced as part of a dispatch, CNS shall utilize similar quality and like materials in resolution of the problem. The replaced components are typically considered consumable items and will be properly disposed (unless requested to be retained by Client). If it is determined that a replacement unit is required, CNS or Client will arrange to ship this unit directly to the property, and will coordinate a second service call to replace the non-functional unit. Client will provide a shipping waybill to return the defective unit for failure analysis, as well as a form to complete to highlight the issues causing problems with the unit. 1.8 PREVENTIVE MAINTENANCE Regularly scheduled visits for testing and inspection are an optional at a time, frequency and price to mutually agreed upon. 1.9 PRINCIPAL PERIOD OF SERVICE (PPS) CNS shall provide Field Services seven (7) days per week, 365 days per year. However, Principal Period of Service (PPS) is defined as Monday – Friday, 8:00 A.M. to 5:00 P.M., Local (Site) Time. CNS shall perform services on the behalf of the Client outside the Principal Period of Service (PPS) at the prices set forth herein. 1.10 CALL CRITICALITY Upon reporting a problem to CNS, the Client’s TPOC shall select a “criticality” that most closely reflects the status of the problem. The following criticality criteria apply: Criticality Condition 1 – Emergency A problem that is determined by Client to require immediate response. 2 – Major A problem that prevents the End-Users ability to access the network. The network, in whole or in part, is “down” and is considered inoperable. Client or Client’s Customers are unable to communicate on the network by either primary or backup means. 3 – Minor A minor problem that slightly impacts the End-Users ability to access the network. The problem may be intermittent in nature. End-Users have not been hampered by an apparent failure, but rather an inconvenience without a need for fast resolution. 4 - Routine A minor problem that does not impact the End-Users ability to access the network. The problem may be intermittent in nature. This criticality would also apply to questions and/or manners of general consultation. 1.11 RESPONSE TIME GOALS CNS Customer Care Center, manned by the assigned CCA(s), will be on a 2-hour response time regardless of criticality or time of day. On site response time is the time between (1) the earlier of (a) when the CCA dispatches a Field Technician to an affected site and (b) 2 hours after the initial call is made to CNS’s Customer Care Center (the earlier of (a) and (b) of this clause shall be deemed the “Onsite Response Time Measurement Point”) and (2) when the Field Technician actually arrives on site. Two factors affect response time: 1) call criticality, and 2) distance from the affected site to the nearest available Field Technician with the proper skills to resolve the problem. For this agreement, CNS and Client establish the following response time goals: Non-PPS (after hours) Arrival - On Site Response Goal PPS Arrival - On Site Response Goal Activity Call Received 8:00A.M.- 3:00P.M. M-F Eastern Call Received 3:00 P.M.-8:00A.M. Eastern Call Received 3:00P.M.- 8:00A.M. Eastern Call Received 3:00P.M- 8:00A.M. Eastern Criticality 1 Emergency Does Not Apply 2 Hours 2 Hours 2 Hours after start of next calendar day Criticality 2 Major Does Not Apply 4 Hours 4 Hours 4 Hours after start of next calendar day Criticality 3 Minor 8 Hours 8 Hours 8 Hours 8 Hours after start of next calendar day Criticality 4 Routine Next Day Next Day Next Business Day 2nd Business Day Criticality 5 Scheduled Does Not Apply Does Not Apply 2nd Business Day 3rd Business Day 1 Times in this table are measured from the Onsite Response Time Measurement Point The following chart indicates additional response time increments added as a result of the distance an available Field Technician will travel to the affected site (CNS commits to use the closest possible Field Technician who has the appropriate skills and tools available): Distance between the Field Technician and the Site Additional Response Time Increment 0 – 50 miles 0 51 – 100 miles + 1 hour 101 – 150 miles + 2 hours 151 – 200 miles + 3 hours > 200 miles + 4 hours 1.12 REPAIR TIME GOALS The goal of both parties is to perform repairs in the most expeditious means possible. Repair Time is the time between which a Field Technician arrives on site and departs the site having been released by the Client’s TPOC. CNS’ Repair Time Goal is four (4) hours. The Response Time Goals and the Repair Time Goals, set forth above, are aspirational in nature, and CNS does not promise or guarantee service within such time frames. Under no circumstances shall the aforementioned goals form the basis for any claim or breach of the Agreement. 1.13 DISPATCH PROCESS The CNS dispatch process is as follows:  Dispatch Request: The CCA shall receive a Dispatch Request from the Client’s TPOC (or otherwise as agreed to below). The Dispatch Request will be in the form of an e-mail, web-based form submittal (for record keeping purposes) or alarm notification message and can be augmented in the form of a telephone call (pager or direct) sent to the CCA seven (7) days per week twenty-four hours per day. When delivered by Client, the Dispatch Request shall minimally identify the facility name, local contact, address, telephone number, nature of the problem, and any special request or other more specific information (i.e., any special skills required, test equipment, unusual site needs, etc.). The Client’s TPOC shall select a call “Criticality” based on the criteria identified in Criticality Section above. The CCA shall create an internal CNS trouble ticket based upon the information contained in the Dispatch Request. The CCA shall acknowledge the Dispatch Request with a response containing the internally assigned trouble ticket number.  Field Technician Assignment: The CCA shall identify a Field Technician for the dispatch. Once the Field Technician has accepted the assignment, the CCA shall contact the Client’s TPOC and provide the Field Technician personnel’s name, mobile telephone number, and Estimated Time of Arrival (ETA) to the associated site. The CCA shall update the internal trouble ticket with the indicated information.  Dispatch Monitoring: Throughout the performance of the dispatch, the CCA will be available to the Client’s TPOC to answer the TPOC’s questions regarding the progress of the dispatched resources.  Technical Escalation: The Client’s TPOC shall have direct access to the Field Technician for on-site direction and assistance with technical issues and questions. The CCA shall facilitate technical assistance at the request of the Client’s TPOC or the Field Technician.  Parts Replacement Assistance: The CCA shall act as an intermediary between the Client’s TPOC and the Field Technician for replacement product selection (in the event that an identical replacement component is not readily available). The CCA shall recommend parts/product replacement alternatives that are mutually acceptable to both parties.  Call Closure: The Field Technician shall contact the CCA to confirm repair and if the dispatch was requested by the Client, then the CCA will request a release from the site by the Client’s TPOC. The TPOC will send an email notification to the CCA verifying that release was granted and the time that it occurred. The CCA shall close the internal trouble ticket by documenting the Field Technician’s release.  Cancellation: CNS will charge a $50 cancellation fee for less than 24 hours notice plus the charges for time spent by field personnel when cancellation occurs after field personnel have departed their origination point for the cancelled destination. 1.14 CLIENT RESPONSIBILITIES Client agrees to provide the following:  Customer Notification: The Client shall notify Customer site personnel that a Field Technician will be arriving on-site to perform field services.  Site access: Client shall contact Customer and ask for free and open access to the site in order that problems are expeditiously resolved. If necessary, Client shall arrange for facility management personnel to be available to support Field Technician arrival outside the PPS.  Equipment Access: Client shall work with its Customers to ensure that free and open access to equipment and a general service parameter is maintained at all times. It shall not be the responsibility of the Field Technician to move boxes, equipment, and so forth to gain access to the equipment.  Site Hazards: Client, but only to the extent of its actual knowledge thereof, shall inform CNS or the relevant Field Technician of all environmental factors affecting a site (i.e., asbestos and other hazardous materials, unexposed high voltage wiring, etc.) of which it is then currently aware, and shall attempt to cause Customer to ensure that such factors are readily revealed to a Field Technician performing service.  Other Support Organizations: Client shall not dispatch Field Services through any other organization without notification to CNS. 4.0 STANDARD TERMS  Prices for on-site labor are based upon standard rate, non-union. If a facility requires unionized resources for installation, the price may need to be adjusted to reflect the associated union rates.  Access will be provided to the facility without restriction during the installation and any delay on-site due to inaccessibility to required areas will be considered out of scope and billed at the out of scope hourly rate.  All travel costs associated with Project Management will be billed to Client at cost.  All necessary site preparation will be completed by Client, unless otherwise agreed, prior to performing the activities required for this project and any delay on-site due to lack of preparation will be considered out of scope and billed at the out of scope hourly rate.  Cable installation estimates assume a clear, available pathway. Performing the services associated with creating a clear, available pathway will be performed and billed at the out of scope labor rate and for additional materials.  When performance is at an hourly rate, CNS is not responsible for work stoppages that occur as a result of waiting for Client callbacks, release, etc. CNS shall inform Client of delays that are impacting work progress.  Client is ultimately responsible for damaged or inoperable equipment as a result of instructions delivered by the Client. CNS does not share in this responsibility unless such damage or inoperability is caused by the negligence of CNS or its agents or from failure to appropriately follow Client’s instructions.  CNS is not responsible for physical security of the product or network.  CNS is not responsible for data backup, loss, or retrieval associated with performance of the services described herein. 8 Whenever the process requires a call to the Client, the hold time (or return call time) will not exceed twenty (20) minutes in total. After twenty (20) minutes of waiting, CNS will begin escalation. CNS will bill Client for additional hold times in half (1/2) hour increments at the prevailing rate. This also applies to situations where the CNS resource is waiting to be released from the site by Client.  As required, CNS may utilize the Contingent Certified Partner (CI) Network for performance of services on a Client’s Customer site.  Each party is acting as an independent contractor. This Agreement is nonexclusive and does not create an agency relationship, partnership, or joint venture. Neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other unless otherwise agreed herein.  CNS may act as a duly authorized agent on behalf of the Client only for the purposes of ______________________________________________________________________ _______________________________________________________________________.  Minor or ancillary materials (i.e., items costing individually less than $25.00 each) will be chosen and supplied by CNS unless a technical requirement invoked within a specific SOW produces the need for a specific or unique product/material. CNS shall use best efforts to select product/material that will meet all technical requirements and be the most cost effective.  For each product procured by CNS, title to each product will pass to the Client on the product’s Shipment Date or on the Installation Date (if installed by CNS). After delivery or installation of the products at the Client’s Customer’s premises, Client shall bear such risk of loss unless the loss is caused by CNS’s negligence or that of CNS’s agents or subcontractors. For products procured by CNS but which will not be installed by CNS, Client shall bear the risk of loss once CNS has delivered the products to the common carrier on the Shipment Date.  Work Product will be deemed accepted by Client via electronic mail prior to CNS departing the site unless otherwise agreed herein.  For each project, an estimated schedule shall be developed and agreed to between both parties.  CNS may charge a fee to cancel or expedite a prescheduled task if less than 48 hours notice is provided by Client until expedited arrival time on site.  Upon request, CNS shall provide a Monthly Summary Report to Client. The report shall contain summarized completed service information. CNS shall provide the report by electronic mail to the recipients within seven (7) business days of the completion of the prior month. 5.0 LABOR WARRANTY CNS will warrant all installations for one (1) year, once completed, tested and approved by the Client and customer. This warranty only applies to the labor (product warranties are not inclusive). The warranty will be null and void if it is determined that a repair is required due to negligence, misuse, or abuse on the behalf of the Client and/or Customer, acts of God, or performance of work at the site by a party other than CNS or via CNS dispatch. 6.0 NOTICES AND ESCALATIONS All notices and escalations made under this Agreement shall be in writing and delivered by facsimile, electronic mail or other electronic means (in which case the recipient will provide acknowledgment within one (1) business day separately from any machine-generated automatic reply); or by prepaid means providing proof of delivery. 7.0 CHANGE ORDERS Either party may request a change to an SOW, and such change shall be deemed made only if set forth in a writing that references the SOW and that has been signed by authorized representatives of each party. Changes will need to be evaluated regarding the impact to price, schedule, or liability. Neither party shall unreasonably delay reviewing changes as a delay could impact the performance of the activities identified in the SOW within the required timeframe. 8.0 STATEMENT OF CONFIDENTIALITY This document may contain trade secrets and information that is company sensitive, proprietary, and confidential, the disclosure of which would provide a competitive advantage to others. As a result, this document shall not be disclosed, used or duplicated, in whole or in part, for any purpose other than to evaluate it by internal Client personnel. If a contract is awarded to Contingent Network Services, as a result of, or in connection with the submission of this document, any right to duplicate, use, or disclose the data will be to the extent provided in the resulting agreement. This restriction does not limit the rights of the recipient to use information contained in the data if it is rightfully obtained from another source without restriction. 9.0 ASSIGNMENT This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. In the event either party merges with or is acquired by a third party, the obligations and responsibilities defined throughout the agreement automatically transfer and become those of the third party acquirer or the merged “new” company. 10.0 WORK PRODUCT RIGHT The term "Work Product," as used in this Agreement, refers to all items, including works of authorship, programs, documentation, products, or other materials or items, prepared for or delivered to Client by CNS, its employees, agents or subcontractors during the term, or otherwise produced as a result, of this Agreement or any SOW issued hereunder. Unless stated otherwise in the SOW, the Client on its behalf and on behalf of its employees, agents and subcontractors, grants, releases and assigns to CNS all right, title and interest, including ownership of copyrights, in the Work Product. All Work Product created by CNS, its employees, agents or subcontractors while providing services to Client under this Agreement shall be the sole and exclusive property of CNS. To the extent that any pre-existing materials are contained in the Work Product, Client grants CNS an irrevocable, worldwide, nonexclusive, paid-up, royalty-free right and license to use, execute, reproduce, perform, display, distribute, and prepare derivative works of such pre-existing material and derivative works, as well as to authorize others to do any or all of the above. Upon CNS’ request, Client shall provide CNS with such assistance as CNS may require, including whatever documents, information or materials are in Client's possession or available to Client, in order to enable CNS to protect its ownership rights, including copyrights, in any Work Product. 11.0 INVOICING AND PAYMENT For labor, CNS will invoice Client as work is completed by site, or monthly at the minimum. Materials will be invoiced the earlier of: as they ship to the Client site or when they arrive any CNS facility. Payment is due to Contingent net 30 days from invoice date. Any delinquencies will be charged a 1.5% (of amount late) monthly late fee (18% annually) cumulative beginning on the first day of delinquency. For material orders in excess of $10,000 CNS may reserve the right to request up-front payment (up to 100%) prior to placing the order. 12.0 GENERAL PROVISIONS  Non-Solicitation of Personnel. During the term of this Agreement neither party will actively solicit the other party's employees, contractors or students for employment.  All Amendments in Writing. No waiver, amendment or modification of any provisions of this Agreement shall be effective unless it is in writing, prepared as an amendment referencing this Agreement, and signed by duly authorized representatives of both parties. Furthermore, no provisions in either party's purchase orders, invoices or other business forms employed by either party shall supersede the terms and conditions of this Agreement.  Force Majeure. Neither party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party. Such acts include, but are not limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, governmental regulations, power failures, earthquakes, or other disaster.  Governing Law. The substantive law of the State of Ohio, excluding its rules on conflict of law, will govern this Agreement.  Severability. If any provision of this Agreement is held to be invalid or unenforceable, it is to that extent to be deemed omitted and the remaining provisions of this Agreement shall remain in full force and effect.  Entire Agreement. This Agreement, which includes all SOWs issued hereunder, constitutes the entire agreement between Client and CNS concerning the subject matter hereof and thereof, and supersedes all previous communications, representations, understandings and agreements, whether verbal or written, between the parties to this Agreement. 13.0 STANDARD DISCLAIMERS  FOR THE WARRANTY PERIOD, CNS WILL REMEDY, WITHOUT CHARGE TO CLIENT OR CLIENT'S CUSTOMER, NONCONFORMING SERVICES AND/OR DELIVERABLES. CNS SHALL RE-PERFORM OR BEGIN TO CORRECT NONCONFORMING WORK PROMPTLY UPON CLIENT'S NOTICE OF SUCH TO CNS, AND SHALL CONTINUE DILIGENTLY, UNTIL THE NONCONFORMITY IS CORRECTED. CNS RESERVES THE RIGHT TO CHARGE FOR RE-PERFORMANCE IF CNS DETERMINES THAT THE NONCONFORMITY WAS CAUSED BY (I) ISSUES RELATED TO CLIENT’S OBLIGATIONS UNDER THIS AGREEMENT SUCH AS DEFECTIVE CLIENT PARTS (IF PARTS ARE PROVIDED BY THE CLIENT AND ARE NOT STAGED), OR BY (II) UNAUTHORIZED ALTERATION OR MANIPULATION OF THE HARDWARE OR SOFTWARE BY THE END USER, OR (III) BY A FORCE MAJEURE EVENT. THE CHARGE FOR RE-PERFORMANCE WILL BE THOSE CHARGES RELATED SPECIFICALLY TO THE NONCONFORMING SERVICES OR DELIVERABLE(S) AS SET FORTH IN THE APPLICABLE SOW.  EXCEPT FOR WARRANTIES SPECIFICALLY CONTAINED IN THIS AGREEMENT OR A CONTRACT, CNS DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING. CNS DOES NOT WARRANT THAT SERVICES AND/OR DELIVERABLES WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES WILL BE CORRECTED. CNS HAS NO WARRANTY OBLIGATION FOR PRODUCTS, MATERIALS, OR SERVICES THAT CLIENT ACQUIRES FROM THIRD PARTIES, EVEN IF CNS ASSISTED IN EVALUATING OR SELECTING THEM. THE FAILURE OF PRODUCTS, MATERIALS, OR SERVICES CLIENT ACQUIRES FROM THIRD PARTIES OR THEIR SUPPLIERS WILL NOT AFFECT CLIENT’S OBLIGATIONS TO CNS. IF CNS DESIGNATES THAT ITS PRODUCTS, DELIVERABLES, OR SERVICES ARE PROVIDED “AS IS”, THERE IS NO WARRANTY.  EXCEPT FOR CLAIMS RELATED TO BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL CNS BE LIABLE FOR DAMAGES IN THE AGGREGATE FOR ALL STATEMENTS OF WORK, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, IN AN AMOUNT THAT EXCEEDS SIX (6) MONTHS OF RELATED CHARGES UP TO A MAXIMUM OF $1,000,000, FOR THE SERVICES OR DELIVERABLES UNDER THIS AGREEMENT. THE LIMITATION IN THE PREVIOUS SENTENCE SHALL NOT APPLY TO DAMAGES FOR BODILY INJURY (INCLUDING DEATH) OR DAMAGE TO TANGIBLE PROPERTY FOR WHICH CNS IS LEGALLY LIABLE.  IN NO EVENT SHALL CNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF SAVINGS, OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES, WHETHER OR NOT CNS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Each party acknowledges that it has read the Agreement including all referenced exhibits, appendix and attachments hereto, if any, and agrees that it is the complete and exclusive understanding between the parties.
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