MASTER SERVICES AND PURCHASING AGREEMENT – Securitas Summa

THIS MASTER SERVICES AND PURCHASING AGREEMENT – SECURITAS SUMMA (this “Agreement“) is made and entered into as of the “Effective Date” in any Securitas Summa Scope executed between CONVERSANT GROUP, LLC, a Tennessee limited liability company, with its principal place of business located at 1513 Cowart Street, Chattanooga, TN 37408 (“Conversant“) and the Customer (“Customer“), with Conversant and Customer being sometimes referred to herein individually as a “Party” or collectively as the “Parties“.

WHEREAS, Conversant is the provider of certain information technology (IT) consulting and managed services, as well as the supplier of certain computer software, hardware, subscriptions, and equipment used in connection with such services; and Customer wishes to engage Conversant, and Conversant wishes to accept such engagement, to provide such services, subscriptions, and products contemplated hereunder, all pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Agreement, the Parties agree as follows:

1. Engagement. Subject to the terms and conditions of this Agreement, Customer hereby engages Conversant to provide various services (the “Services“) associated with Conversant’s Securitas Summa Program, related to Customer’s data and technical infrastructure, as set out in the Securitas Summa Scope (each, an “SSS“) executed herewith or any supplemental SSS subsequently agreed to and executed among the Parties. An SSS may be referred to as an Order Document. By executing or otherwise agreeing to the SSS, Customer acknowledges and agrees that Customer has read and understands the applicable SSS. Each Securitas Summa SSS shall be governed by the terms of this Agreement.

 

2. Shipment; Inspection. For the hardware necessary and included in the SSS executed herewith, shipping costs will be borne by Conversant and are not Customer’s responsibility. Customer does agree to validate receipt of any inventory and to provide basic incoming inspection for any damage during shipment.

 

3. Fees and Payment. 

(a) Customer shall compensate Conversant the fees for all Services (“Service Fees” or “Fees“) as follows:

(b) Fees. Customer shall pay all Fees as provided in the applicable agreed SSS.

(c) Invoicing. Conversant shall invoice (each, an “Invoice“) Customer as provided in the SSS. Each Invoice shall reference the relevant Order Document and shall be in either electronic or (only upon request) hard copy paper format. For any Services ordered outside of the SSS executed herewith, including any out of scope services, Conversant shall invoice Customer the Service Fees and any recurring fees shall be invoiced on the schedule agreed to in the applicable Order Document. For example, if Customer requests additional Support of Hardening hours outside of those allotted in SSS executed herewith, Conversant shall invoice Customer the Service Fees when those hours have been delivered.

(d) Expenses. Customer will reimburse Conversant for all actual out of pocket travel and related expenses reasonably incurred by Conversant in performing the Services (collectively, the “Expenses“). Conversant will provide an Invoice to Customer, and Customer shall pay, for all such Expenses incurred on a regular basis.

(e) Payment. Customer shall pay all invoices net thirty (30) days from receipt. Payments not made by that due date are deemed late. Interest shall accrue on late payments at a rate of one and one half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. Customer agrees to pay all costs, including reasonable attorney’s fees, in connection with any collection efforts to recover unpaid amounts due hereunder. Customer may make payment of the invoice by one of the following methods: (i) check; (ii) money order; (iii) cashier’s check or other certified funds; or (iv) electronically (through QuickBooks), wire or EFT transfer. 

(f) Taxes; Environmental Fees. Customer is responsible for all government charges and assessments associated with the furnishing of the Services (or the related software or equipment) provided hereunder, including all taxes, charges or duties, sales, use, value added, any eWaste or recycling charge, royalty or withholding taxes imposed by a federal, state, provincial, local or any other government entity on the Services performed (or items furnished) under this Agreement, excluding only taxes based on Conversant’s net income (collectively, “Taxes“). Customer shall pay all Taxes directly to the applicable jurisdiction, unless Conversant is obligated to collect and remit Taxes for which Customer is liable hereunder, in which case the appropriate amount will be due and payable pursuant to the terms hereof. Customer is ultimately and solely responsible for determining the proper calculation of Taxes owed on Services performed. Customer hereby holds Conversant harmless from any such calculation.

 

4. License; Internal Use. Services provided hereunder are solely for Customer’s own internal use, and not for the benefit of, or use by, any third-party.  Customer may not host, resell, or otherwise offer any Services provided hereunder to an unaffiliated party. If Customer divests a portion of its business and the divested business unit wishes to continue to use Conversant Services, the divested entity must separately enter an agreement with Conversant.

 

5. Equipment Labels. Customer may not remove or conceal any identifying plates, tags, trademarks, or labels affixed to any equipment, software, or materials provided by Conversant (or its suppliers) to Customer, without Conversant’s prior written consent.

 

6. Third Party Agreements.

(a) Applicable Agreements and Pass-Through. Customer agrees that certain goods or services (including but not limited to SaaS services) provided by third parties may be governed by the terms and conditions of applicable third-party agreements (including end-user license agreements (EULAs), service descriptions, and service level agreements (SLAs)) (each, a “Third-Party Agreement“). In those cases, Customer shall be bound by such Third-Party Agreement(s).  Conversant will provide those to Customer upon request or make reasonable efforts to include them at following URL or a successor URL identified by Conversant: https://conversantgroup.com/third-party-terms/. Customer agrees to abide by any conduct or usage limitations therein.  Customer’s sole recourse for any warranty claim for a resold product or service of a third-party, is with the third-party originator of such product or service (the “Manufacturer”) and Customer will look solely to the relevant Manufacturer to address any such claim. However, Conversant will take commercially reasonable steps to pass through to Customer any assignable representations, warranties, covenants, and indemnities granted to Conversant by the Manufacturer(s) of such products. Conversant directs Customer to the Manufacturer for the details and/or terms and conditions of such warranties, if any. The extent of any Manufacturer warranty details, terms and conditions, remedies and procedures may be expressly stated on, or packaged with, or otherwise accompanying the products. Customer acknowledges and agrees that as part of implementing and managing the scope of the SSS, Conversant may be required to install, integrate, and/or configure a third-party product or service, on Customer’s behalf, it may be necessary for Conversant to agree to certain Third-Party Agreements during the installation, integration, and/or configuration of such products or services. As such, Customer hereby authorizes Conversant to enter, on Customer’s behalf, all such Third-Party Agreements necessary for such installation, integration, and/or configuration of the SSS scope.  The authorization set forth in this section is solely: as necessary for Conversant to perform Services pursuant to the terms of this Agreement.

(b) Intellectual Property. Conversant and its licensors own and shall retain all title to and ownership of the intellectual property rights in the Services, including any adaptations, enhancements, modifications, translations, derivative works, or copies thereof or thereto. Neither Customer nor any of Customer’s employees and/or contractors shall: (i) attempt to decompile, disassemble, reverse engineer or otherwise attempt to discern the source code of anything furnished hereunder; (ii) sell, resell, rent, lease, or distribute anything furnished hereunder; (iii) remove, obscure, or obfuscate any copyright, trademark or other proprietary notice, label or marking on equipment or items furnished hereunder; or (iv) modify, translate or sublicense anything furnished hereunder or any portion thereof.

 

7. Confidential Information.

(a) General. In connection with this Agreement, either Party (the “Receiving Party“) may be supplied with information or materials by or on behalf of such other Party and/or its Affiliates (the “Disclosing Party“) which is non-public, confidential, or proprietary in nature. Such information shall include the intellectual property of the Disclosing Party and information about or concerning the Disclosing Party’s or its Affiliates’: financial condition, projections, business ventures, strategic plans, marketing; customers, vendors, business partners, or prospects; strategic insights or statistical models about customers or prospective customers or their behavior; and trade secrets, technology and methodologies (collectively, “Confidential Information“). Confidential Information also includes: (A) all information transmitted in written, oral, or magnetic form, or any other medium which would appear to a reasonable person to be confidential or which is marked confidential; (B) all copies and reproductions, of such information; and (C) summaries, excerpts, analyses, or other records which contain or reflect such information. Upon the Disclosing Party’s request, the Receiving Party shall promptly return or destroy all documents and other materials received from the Disclosing Party.  Affiliates shall include parties with at least 50% common direct or indirect equity ownership or common direct or indirect control.

(b) Nondisclosure. The Receiving Party shall maintain in confidence and not disclose to any third party the Confidential Information of the Disclosing Party, except as approved in writing by the Disclosing Party, and shall not use the Confidential Information of the Disclosing Party for any unauthorized purpose. The Receiving Party agrees to treat any Confidential Information received with the strictest of controls as such Party treats its own Confidential Information. The Receiving Party may use the Confidential Information of the Disclosing Party only to the extent required to perform its duties or exercise its rights under this Agreement. Confidential Information shall not be used for any purpose or in any manner that would violate any applicable law or regulation. The Confidential Information supplied shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the Disclosing Party shall contain any and all confidential or proprietary notices or legends, which appear on the original, unless otherwise authorized in writing by the Disclosing Party. The responsibilities of the Receiving Party to protect the Confidential Information other than Confidential Information that constitutes trade secret information of the Disclosing Party shall apply for five (5) years from the date of disclosure. With respect to trade secret information, the responsibilities of the Receiving Party pursuant to this Section 9 shall continue until such time as such trade secret information is no longer protected as such under applicable law. The Receiving Party shall limit access to the Confidential Information of the Disclosing Party to those of its employees or agents having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. The foregoing restrictions shall not apply to any information that: (i) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party; (ii) was in or entered the public domain through no fault of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; or (iv) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party.

(c) Compelled Disclosure. Notwithstanding any other provisions of this Agreement, disclosure of the Confidential Information shall not be precluded if such disclosure is in response to a valid order of a court or other governmental body; provided, however, that the responding Party shall (unless prohibited by such order) first have given notice to the Disclosing Party hereto and to allow the Disclosing Party, at the Disclosing Party’s expense, sufficient time to obtain a protective order requiring that the Confidential Information to be disclosed be used only for the purposes for which the order was issued or is otherwise required by law. If any such protective order is not obtained, the responding Party may, at Disclosing Party’s expense, disclose to the party or authority compelling such disclosure such part of such information as is required by law to be disclosed.

 

8. Non-Solicitation of Employees. During the term of this Agreement and for a period of two (2) years thereafter, Customer will not directly or indirectly attempt, on its own behalf or on behalf of any other entity, to solicit, entice, persuade, divert, or induce any employee or contractor of Conversant to terminate his or her employment or engagement with Conversant or any of its Affiliates (including, without limitation, Fenix24, Inc., Grypho5, LLC) or to become employed or engaged by Customer or any third-party engaging in any business competitive with the business of Conversant or its Affiliates or approach any such employee for any of the foregoing purposes or authorize and assist in the taking of any such action by any third-party unless such person shall have ceased to be employed or engaged by Conversant for a period of at least twelve (12) months.

 

9. Indemnification. Each Party (an “Indemnitor“) agrees to indemnify, defend, and hold harmless the other Party (the “Indemnitee“) from and against any third-party claims, damages, liabilities, losses, and/or expenses (“Claim(s)”), including reasonable attorneys’ fees incurred or arising from the Indemnitor’s breach of Section 9 of this Agreement. Customer further agrees to indemnify, defend, and hold Conversant harmless from and against any claims, damages, liabilities, losses, and/or expenses, including reasonable attorneys’ fees incurred or arising from third party claims arising from Customer’s use of any purchased software or reports provided by or on behalf of Customer or Conversant under this Agreement, and/or failure to adhere to Section 5, Section 6, or Section 8 of this Agreement. Notwithstanding anything contained herein to the contrary, Conversant’s maximum liability for any indemnifiable claim shall be restricted by those limitations set forth in Section 13 below. As a condition of any rights under this Section, a party must:  (a) provide prompt written notice of the Claim, (b) provide reasonable cooperation in the defense of the matter at the expense of the indemnifying party, (c) act reasonably to mitigate any alleged damages, (d) tender control of the defense of the matter to the party providing indemnity and defense of the matter (provided that secondary or shadow counsel at the expense of the indemnified party shall be allowed, if desired, but this second counsel shall be at the expense of the indemnified party).  In no event is Conversant responsible to provide indemnity in connection with any Service or Product of another company other than Conversant.

 

10. Warranties & Disclaimers.

(a) Services Warranty. Conversant warrants that Services will be performed by adequately trained and competent individuals in a professional and workmanlike manner, consistent with reasonable and generally accepted professional standards and practices prevailing.  Customer acknowledges that Conversant is not responsible for the acts or omissions of Manufacturers or other third parties.  Any Conversant service level agreements apply to Conversant actions only, and Conversant shall have no liability for the failure to achieve levels under any such service level agreement if caused by the acts or omissions of any Manufacturer or other third party.

(b) Disclaimer of Warranties. Customer acknowledges and agrees that it is impossible to identify and eliminate every conceivable threat to Customer’s data and/or infrastructure. Customer further acknowledges and agrees that Conversant’s Services are a means to mitigating risks and lessening potential harm resulting from security attacks and infrastructure outages. Accordingly, Conversant makes no representations or warranties that Customer will be free from or fully protected against malicious actions of third parties, including such risks, attacks, losses, damages, liabilities, and outages associated therewith. EXCEPT AS SET FORTH IN THE SERVICES WARRANTY (SECTION 10(A)) REGARDING SERVICES PERFORMED BY CONVERSANT, CONVERSANT MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING SERVICES. Conversant neither assumes nor authorizes any other person to assume for it any warranty or liability in connection with the purchase of the Services, or any components thereof.  Certain third parties may provide their own warranties for certain products as set forth in Section 7, above (“Third-Party Agreements”); the Parties understand and agree that Conversant is not liable for those Third-Party Agreements.

(c) Exclusivity of Warranties. THE WARRANTIES IN THIS SECTION ARE THE EXCLUSIVE WARRANTIES FOR THE SERVICES, EVEN IF SUCH WARRANTIES FAIL IN THEIR ESSENTIAL PURPOSE. THEY REPLACE ALL OTHER WARRANTIES, COVENANTS, AND REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR EITHER AN ORDINARY OR PARTICULAR PURPOSE, TITLE, INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW.

(d) High Risk. Conversant accepts no risk and makes no warranty in connection with any use of Services in any environment in which a failure could threaten a loss of life, bodily injury, or catastrophic property damage (a “High Risk” usage).  Customer shall act reasonably in connection with any High Risk environment, and Customer has the sole responsibility to for all consequences resulting from the use of anything provided hereunder in connection with a High Risk use case, such as air traffic control, driverless vehicles, or life support or similar systems.

 

11. Limitation of Liability.

(a) Damages. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, TIME OR DATA, GOODWILL, COMMERCIAL LOSS, LOST PROFITS OR SAVING(S), OR DAMAGES ARISING OUT OF ANY DATA EXFILTRATION, IN ALL CASES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) Aggregate Liability. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGEMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER INCLUDING THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO CONVERSANT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACCRUAL OF THE FIRST CLAIM RELATED TO THE SERVICES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Customer acknowledges and agrees that in addition to the foregoing limitations, Conversant assumes no liability for misconfiguration, issues, risks, failures, outages, product bugs, product malfunctions or other issues or failures beyond Conversant’s direct control.

 

12. Export Control. Customer shall comply with all laws and regulations applicable to them regarding the export, purchase and use of the Services. Customer acknowledges and agrees that the Services (including technology, software, or hardware furnished hereunder) may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Customer agrees to comply with all applicable export control laws and regulations, including the Export Administration Regulations (EAR). Customer covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Conversant under this Agreement: (a) to anyone outside the U.S. or who is not a U.S. national without first complying with all export control laws and regulations which may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction Customer or Conversant operates or does business; (b) in violation of geographic restrictions of the United States and/or the European Union or any other applicable authority, including the embargos and restrictions applicable to Belarus, Cuba, Iran, Democratic Republic of Korea (aka, North Korea), The Russian Federation, Sudan, Syria, or the Crimea Region of Ukraine (collectively, as of the Effective Date, “Embargoed Countries”); (c) any person or entity that is a national or resident of country embargoed by the US, UK, or EU, or that is on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons and Entity Lists; or (d) to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations and the International Traffic in Arms Regulations (ITAR). Customer represents and warrants that Customer: (i) is not located in, or is under the control of, or a national or resident of, any Embargoed Country; and (ii) is not nor under the control of any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders Designated National.  Customer agrees to indemnify, to the fullest extent permitted by law, Conversant from and against any fines or penalties that may arise as a result of Customer’s breach in this section. 

 

13. Term and Termination.

(a) Term. This Agreement will commence on the Effective Date and continue for a period of the longer of five (5) years or any longer period agreed to in a mutually signed Order Document. Thereafter, the Agreement shall automatically renew for additional one (1) year periods unless otherwise terminated in accordance herewith. If Conversant has commenced Services for Customer prior to the Effective Date, all provisions of this Agreement shall apply to such Services.

(b) Termination. Either Party may terminate this Agreement, or an SSS if the other Party has materially breached this Agreement or the SSS and failed to cure such breach within thirty (30) days of receipt of written notice identifying that breach. The termination of the Securitas Summa Scope shall not relieve Customer of its obligations to pay for the Services ordered in the SSS, and all fees contemplated under the full life of the agreement come immediately due. 

(c) Post Termination Duties. Upon termination or expiration of any SSS, Conversant shall have no further obligation to render any Services with respect to such SSS.  Sections that by their nature, or to give effect to their meaning, must survive expiration or termination of this Agreement, shall survive any expiration or termination of this Agreement, including either Party’s non-solicitation, confidentiality, indemnity, and payment obligations contemplated hereunder.

 

14. Reasonable Cooperation. Customer agrees to provide Conversant such access and authority and take such actions as Conversant may reasonably request in order for Conversant to carry out its duties under this Agreement. Customer further agrees that should Customer fail to provide such access and/or authority and/or take such actions, and such refusal causes delay in Conversant’s provision of any Services contemplated under the SSS, Conversant shall be entitled to issue an Invoice to Customer, and Customer shall be obligated to pay for, all such Services that would have been delivered but for Customer’s refusal to reasonably cooperate as provided herein. Neither Party shall assign this Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld or delayed; provided, however, that Conversant shall have the right, upon written notice to Customer, to assign its rights or duties in whole or in part, to an Affiliate of Conversant or the purchaser of all or substantially all of Conversant’s business or a Conversant business line. 

 

15. Assignment. Neither Party shall assign this Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld or delayed; provided, however, that Conversant shall have the right, upon written notice to Customer, to assign this Agreement or its rights or duties in whole or in part, to an Affiliate of Conversant or the purchaser of all or substantially all of Conversant’s business or a Conversant business line, whether by merger, acquisition, sale, reorganization, or otherwise. 

 

16. Independent Contractors. Each Party shall act solely as an independent contractor and, except as expressly set forth herein nothing in this Agreement shall be construed to give either Party the power or authority to act for, bind, or commit the other Party in any way. Nothing herein shall create the relationship of partners, principal and agent, or joint-venture partners between the Parties.

 

17. Choice of Law; Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without reference to the conflict of law principles thereof. Any dispute arising out of or related to this Agreement shall be brought exclusively within the state or federal courts located in Hamilton County, Tennessee, and each Party irrevocably submits to the jurisdiction and venue of such courts.

 

18. Force Majeure. Except with regard to payment obligations, neither Party shall be liable for damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its reasonable control.

 

19. Entire Agreement; Exhibits. This Agreement, including the Exhibits attached hereto (which are hereby incorporated by reference), and any executed Order Documents, constitutes the entire agreement between Conversant and Customer concerning the subject matter hereof and supersedes all prior and contemporaneous agreements between the Parties.  No Party is relying upon any warranties, representations, or inducements not set forth herein. If any provision of this Agreement is held to be invalid, void, or unenforceable, the rest shall remain in full force and effect and shall not be affected, impaired, or invalidated.

 

20. Amendment. Any waiver, amendment or other modification of this Agreement will be effective unless in a writing mutual executed by the Parties.  Email or text correspondence is not sufficient to modify this Agreement, but a mutually executed agreement signed in a physical writing or by providing facsimiles of signatures, or by scanned and e-mailed .PDF format (or equivalent) files or through a nationally or internationally recognized digital transaction management service (e.g., DocuSign), shall be deemed acceptable.  No other course of conduct shall operate to waive, amend or modify this Agreement.  The waiver by either Party of any of its rights or remedies in a particular instance will not be deemed a waiver of the same or different right or remedy in subsequent instances.

 

21. Notices. All notices, demands, or communications regarding this Agreement shall be in writing, signed by the Party serving the same, and deposited, postage prepaid, in the United States Postal Service as certified or registered mail. The addresses may from time to time be changed by notice in writing to either Party by certified or registered mail. Notices provided in association with this Agreement shall be provided to the address indicated in the preamble of this Agreement.  IN ALL EVENTS, any legal notice to Conversant Group must be sent simultaneously to LegalNotices@conversantgroup.com.

 

22. Binding Nature. Each Party represents that the person signing this Agreement on its behalf has been duly authorized and empowered to execute this Agreement.  This Agreement shall be binding on and inure to the benefit of the Parties hereto, their successors and permitted assigns.

 

23. Construction. Section and subsection headings and the captions of the Exhibits appear only as a matter of convenience and shall not affect the interpretation of this Agreement.  Words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa.  The words “shall” and “will” are to be interpreted as imperative and mandatory, and not as permissive.  Whenever the terms “including” or “include” are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of, the items within such classification.  Each Party has carefully reviewed this Agreement, understands its terms, sought legal advice where desired, and has relied wholly on its own judgment and has not relied upon any representations or statements made by any other Party or anyone acting on behalf of any other Party other than those herein. Any rules of construction construing an agreement against the drafting Party shall not apply to the construction of this Agreement.