Conflict of Terms

Commercial Contract

Conflict of Terms

When an agreement between the parties is comprised of several separate but related parts (e.g., exhibits, appendices, schedules, and SOWs), the parties may desire to clarify which parts control in the event of a conflict between and among such parts.

Main Agreement Supremacy

To protect the investment made in the drafting of the main agreement, the parties may agree that the main agreement governs and prevails over any conflicting terms in ancillary documents:

Exemplar C16-1

All quotations, purchase orders, acknowledgements, and invoices issued pursuant to this Agreement shall be subject to the provisions contained in this Agreement. The terms and conditions of this Agreement will control over any conflicting or inconsistent terms contained in any quotation, Order, acknowledgement or invoice.

Exemplar C16-2

In case of any conflict between this Agreement and any Purchase Orders, correspondence, memoranda, or other documents for or relating to the Devices exchanged by the parties during the term of this Agreement, this Agreement shall govern and prevail; and any other terms, provisions or conditions in any other documentation of the parties which vary from, or are inconsistent with, contrary to, or in addition to, the terms, provisions and conditions of this Agreement, shall be null and void.

Exemplar C16-3

References to Articles, Sections, Schedules, and Exhibits are internal references to this Agreement, and to its attachments, unless otherwise specified. If there is a conflict between the terms of this Agreement and the terms of the Annexes, the terms of this Agreement will control.

Exemplar C16-4

Consultant and Client each acknowledge and agree that: (a) the terms and conditions of the Agreement are incorporated herein by reference; (b) this SOW will be deemed an addendum to and part of the Master Agreement; and (c) in the event of any conflict or discrepancy between the terms or provisions of the Agreement and this SOW, the terms and provisions of the Agreement shall control and govern.

Express Exceptions

In the following exemplars, the primacy of the main agreement may be overcome where the parties specifically and expressly agree to override the main agreement:

Exemplar C16-5

No proposal, purchase order, order confirmation, acceptance, or any other document provided by either Party to the other, nor any electronic click-wrap, terms of use or similar online consent or acceptance language accompanying or set forth as a prerequisite to any electronic interface or utility associated with any Work, shall be deemed to amend the terms hereof and any such contradictory or additional terms shall be ineffective. In the event of any ambiguity or conflict between any of the terms and conditions contained in this Agreement and the terms and conditions contained in an Order, the terms and conditions of this Agreement shall control, unless the Parties have expressly provided in such Order that a specific provision in this Agreement is amended, in which case this Agreement shall be so amended, but only with respect to such Order.

Exemplar C16-6

To the extent reasonably possible, the various documents comprising this Agreement will be read in a manner so as to make such documents be consistent with each other. In the event of a conflict between the body of this Agreement and any Attachment, Appendix, Schedule or Exhibit, the terms of the body of this Agreement will prevail; except that, to the extent the Parties expressly agree in such other document that a specific term identified in such document amends an identified term in the body of this Agreement (or in any Attachment, Appendix, Schedule or Exhibit), such term will be deemed to be so amended.

Exemplar C16-7

The Agreement includes the general terms and conditions set forth in the body of this document (“General Terms”), as well as the terms and conditions contained in each of the Attachments hereto. In the event of any conflict or inconsistency between the provisions of the General Terms and an Attachment, the Attachment will control. In the event of a conflict between a statement of work (“SOW”) and an Attachment, the SOW will control to the extent that the provision to be modified is expressly called out in the SOW and mutually agreed to by an authorized representative of each Party.

Exemplar C16-8

The terms and conditions of this Agreement will control and take precedence over any conflicting terms in a Product Addendum unless a Product Addendum specifically refers to and expressly amends a term of this Agreement.

Exemplar C16-9

Exemplar C16-10

In the event of any conflict or ambiguity (1) between this engagement letter and the General Business Terms set forth in Exhibit A, the General Business Terms shall control, or (2) between this engagement letter, including the General Business Terms, (collectively, the “Agreement”) and the terms of an SOW, the terms of the Agreement shall control. Notwithstanding clause (2) of the immediately preceding sentence, in the event that an SOW expressly provides that certain provisions therein shall control over specified provisions of the Agreement, then, to the extent that such provisions of the SOW conflict with the specified provisions of the Agreement, such provisions of the SOW shall control.

Exemplar C16-11

In the event of a conflict between the terms and conditions of an SOW and this MSA the MSA will control, except for (i) payment and invoicing terms and (ii) any provision of an SOW expressly supplementing or superseding a provision of the MSA.

Exemplar C16-12

The Master General Business Terms and the SOW are intended to be correlative and complementary. Consequently, unless otherwise specifically provided for, the requirements of one SOW will not apply to the Services provided or to be provided under another SOW. Further, in the event of a conflict between any provision of the Master General Business Terms and any provision of the applicable SOW, the provision of the applicable SOW will control.

The following exemplar accords primacy of a specific section of an agreement over any conflicting terms within the same agreement:

Exemplar C16-13

Whenever the provisions of this section conflict with any other section in this Agreement, the provisions of this section shall prevail.

Order of Document Preference

As reflected in the following exemplars, the parties may agree to rank the agreement parts in order of preference to avoid and resolve any conflicts among their terms:

Exemplar C16-14

In the event of any inconsistency or conflict between or among the provisions of this Order, such inconsistency or conflict shall be resolved by the following descending order of preference: (a) order-specific provisions that are typed or handwritten on the Order as additions to the pre-printed terms, (b) documents incorporated by reference on the face page(s) of this Order; (c) these general terms and conditions; (d) statement of work; and (e) specifications attached hereto or incorporated by reference.

Exemplar C16-15

The following documents are integral parts of this agreement in the preferred order they are listed:

a) this contract document

b) Appendix A (General Quality Agreement)

c) Appendix B (Maintenance and Support Agreement)

d) General Terms & Conditions for the Procurement of Goods

If there is any conflict or ambiguity between the terms of the documents listed in paragraph above, a term contained in a document higher in the list shall have priority over a one contained in a document lower in the list.

Exemplar C16-16

All services provided by MTS under this MSA (the “Services”) will be described in one or more Statements of Work. “Statements of Work” are Order forms or service contracts that incorporate the terms of this MSA, including “Service Descriptions” and any other such mutually agreed upon document. The MSA and each Statement of Work will be interpreted as a single agreement, independent of each other Statement of Work, so that all of the provisions are given as full effect as possible. In no event will the description of Services under any Statement of Work be deemed by implication or otherwise to exclude any Services described in this MSA or another Statement of Work. In the event of a conflict between the terms of the MSA and a Statement of Work, the terms of these documents will be interpreted according to the following order of precedence: (1) Statement of Work and (2) the MSA.

Exemplar C16-17

In the event of any conflict between the provisions of this SOW and any SOW Attachment, the order of precedence is as follows: (a) this SOW; (b) the SOW Attachments; and (c) any instructions on BUYER’s written or electronic purchase order or release.

Exemplar C16-18

In the event of any conflict or inconsistency in the interpretation of this Agreement (including, without limitation, any SOWs and Exhibits), and except with regard to an express amendment to this Agreement that specifically states the section of this Agreement being amended, such conflict or inconsistency shall be resolved by giving precedence first to the body of this Agreement, and then to the Exhibits, and finally to the SOWs.

Exemplar C16-19

To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the signed agreement, (2) the click-accept agreement, and (3) this End User License Agreement.

Exemplar C16-20

If there is any inconsistency between the terms and conditions set forth in this Project SOW and the terms and conditions of the MSA, the order of priority for purposes of construction is: first, this Project SOW and, second, the MSA; provided, however, that the Parties expressly acknowledge and agree that the terms and conditions set forth in this Project SOW apply solely to this Project SOW and the project management services are not intended to, nor shall be interpreted or construed so as to, affect the obligations of the Parties under the MSA.

The following exemplar contains language that overrides the specified document-precedence order where any conflicting term favors one party (in this case, the customer):

Exemplar C16-21

In the event of a conflict between (i) this Agreement, and (ii) any SOW, schedule, appendix, or exhibit, the provision, any such document granting greater rights, benefits (including lower costs and better warranties) or remedies to Customer and/or imposing greater duty, standard, liability, responsibility or obligation on the Contractor, shall govern regardless of the order of chronological succession of these.

Amendments

Where a signed agreement is later amended, the parties may specify that the later amendment controls to the extent it conflicts with the original agreement:

Exemplar C16-22

Except as specifically amended by this Amendment, the terms and conditions of the Agreement in all other respects remain unmodified and in full force and effect. In the case of a conflict between the Agreement and this Amendment, the terms of this Amendment shall control and prevail.

Exemplar C16-23

Other than as set forth above, the Agreement remains unchanged and in full force and effect. If there is a conflict between the terms of the Agreement, and this Amendment, this Amendment shall, at all times, control and prevail, unless otherwise stated herein.

Exemplar C16-24

The terms of this Agreement shall apply to any Appendix entered into after the Effective Date but if there is any conflict between that Appendix and another document entered into after the Effective Date which is governed by the terms of this Agreement, the latest document shall prevail to the extent that it expressly provides. The Agreement shall prevail in the event of conflict with the Appendices entered into on the same date as this Agreement.

CC

Conflict of Terms

Commercial Contract

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