Demystifying the Master Services Agreement (MSA) Maze

2.1      Services. This Agreement is intended to be the master agreement pursuant to which Client may engage SI to perform (and SI shall perform) certain audit, compliance maintenance, information technology and information security services, as more fully described in one or more Statements of Work. SI and Client will develop and enter into one or more Statements of Work, incorporating the specific Services requested by Client (each as modified from time to time, a “Statement of Work”). Each Statement of Work will set forth, among other things, project scope, various project activities and tasks to be performed by the Parties, Deliverables and roles and responsibilities of the Parties. Each Statement of Work shall be governed by the terms of this Agreement. To the extent there are any conflicts or inconsistencies between this Agreement and any Statement of Work, the provisions of this Agreement shall govern and control.   Depending on the type of Services provided to Client pursuant to a Statement of Work, if applicable, Appendix A will apply.

3.1      Payment for Services. SI shall provide the Services to Client for the fees or Professionally Evil Test Credits (“Credits”) asset forth in the applicable Statement of Work. The fees for Services do not include any foreign, federal, state or local sales, use or other similar taxes, however designated, levied on the Services. Client shall pay, or reimburse SI for all such taxes imposed on SI. This does not include any income taxes.

3.2      Expenses. The Client agrees to reimburse SI for all reasonable expenses, in addition to all expenses pre-approved by Client in writing, and incurred by SI in rendering Services and providing the Deliverables hereunder, including, without limitation, reasonable shipping, travel, lodging, and meal expenses. Client will reimburse SI for expenses in accordance with this paragraph, 3.2, within 15 days of receipt of an invoice and receipts or other records reasonably substantiating incurrence of the expenses by SI.

3.3      Terms of Payment. If using Credits, terms of payment will be governed by the Statement of Work, SI will submit monthly invoices, either in writing or via email, for the Services performed for the prior month, unless otherwise specified on the applicable Statement of Work. Terms for payment are net fifteen (15) days from the invoice date. All amounts due are payable in U.S. dollars. Any amount owed by the Client which is not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum amount allowable by law, whichever is less. Billing disputes shall not be cause for nonpayment under this Agreement. In addition, SI, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate the Services until such payment is received and may decide not to accept additional orders from Client. SI shall have no liability to Client for any such suspension or termination of Services, or non-acceptance of orders.

4.1      Term. This Agreement shall commence on the Effective Date and shall continue until terminated as provided in Section 4.2 (“Term”).

4.2      Termination. This Agreement may be terminated during the Term in the event of any of the following:

          (i)        No Statement of Work Outstanding. Either Party may terminate this Agreement upon written notice to the other Party when there is no outstanding Statement of Work.

          (ii)      With Cause by Client. Client may terminate this Agreement for Cause, with such termination to be effective upon Client giving written notice of such termination to SI.

          (iii)      With Cause by SI. SI may terminate this Agreement for Cause, with such termination to be effective upon SI’s giving written notice of such termination to Client. Notwithstanding the foregoing, SI may terminate this Agreement immediately upon written notice to Client if Client owes fees to SI under any Statement of Work that are ten (10) business days or more past due.

    (iv)      Upon delivery of written notice by either Party to the other Party upon the institution of insolvency, receivership or bankruptcy proceedings of the other Party.

4.3      Effect of Termination. Upon termination of this Agreement, each Party shall return to the other Party all materials and copies thereof (whether in hard or electronic format) relating to such other Party’s Confidential Information (as defined below). Upon termination of this Agreement, all rights and obligations hereunder and under each Statement of Work shall cease, except for: (i) the payment of any fees owed to SI as of the date of termination; and (ii) the obligations hereunder that expressly survive termination.

5.1      Project Schedule; Changes. Each Statement of Work will set forth the projected work effort and schedule applicable to the Services. All statements and agreements concerning time are good faith estimates based upon information available and circumstances existing at the time made, and each Statement of Work is subject to equitable adjustment upon any material change in such information or circumstances, including, but not limited to, the occurrence of an excusable delay (as provided herein) or upon modification of the scope, timing or level of work to be performed by SI. Client may request changes to the Services by notifying SI of the requested change(s) in writing. Both Parties acknowledge that any such change(s) may increase the fees or charges payable to SI and/or the project schedule. Neither Party shall have any obligation respecting any change until an appropriate change order or amendment to the applicable Statement of Work is executed and delivered by both Parties.

5.2      Place for Performing Services. SI’s personnel will perform Services for Client either on or off Client’s premises, as mutually determined by the Parties. If SI is to perform projects or tasks on Client’ premises, Client agrees to provide suitable working space and facilities for SI’s personnel in order to perform their Services. Client shall indemnify SI and hold SI harmless for any claim resulting from SI’s personnel working at Client’s facilities and shall maintain reasonable insurance to cover any such claims.

5.3      Excusable Delays and Failures. SI will be excused from delays in performing, or from its failure to perform, hereunder to the extent that such delays or failures result from causes beyond SI’s reasonable control. Without limiting the generality of the foregoing, Client acknowledges that Client’s failure or delay in furnishing necessary information, equipment or access to facilities, delays or failure by Client in completing tasks required of Client or in otherwise performing Client’s obligations hereunder or under any Statement of Work and any assumption contained in a Statement of Work which is untrue or incorrect will be considered an excusable delay or excusable failure to perform hereunder and may impede or delay completion of the Services. Client further acknowledges that such delays or failures may result in additional charges for the Services.

5.4      Client’s Personnel Commitment. Client will ensure that all of its personnel who may be necessary or appropriate for the successful implementation of the Services will, on reasonable notice, (i) be available to assist SI’s personnel by answering business, technical and operational questions and providing requested documents, guidelines and procedures in a timely manner; (ii) participate in the Services as outlined in the Statement of Work; (iii) participate in progress and other Services related meetings; (iv) contribute to system testing and data integrity testing; and (v) be available to assist SI with any other activities or tasks required to complete the Services in accordance with the Statement of Work.

5.5      Third-Party Product Purchases. If Client is purchasing, or subsequently purchases, any third-party products or services through SI under any Statement of Work, then Client shall comply with the terms and conditions relating to such third-party product or service

6. Ownership.

The Background Technology and Deliverables (and all other documents, deliverables and other materials generated by SI pursuant to this Agreement or any Statement of Work) shall be the sole and exclusive property of SI, unless otherwise expressly specified in the applicable Statement of Work. Client shall have a perpetual, non-exclusive, non-transferable worldwide license to use any Deliverables delivered to Client pursuant to a Statement of Work, and any Background Technology to the extent it is incorporated into such Deliverable, solely in furtherance of the purposes contemplated by such Statement of Work, so long as Client has paid SI for its Services and is not otherwise in breach of this Agreement. Client understands that SI is in the business of providing various services drawing upon the knowledge, understanding and expertise SI has gained in the course of working with many individual clients, both similar and different from Client, and including Client. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be deemed to assign rights to or limit SI’s use of any know-how or knowledge that is not the Confidential Information of Client and that SI had prior to entering this Agreement or that SI obtains during its performance under this Agreement.

7. Confidentiality.

In connection with the activities contemplated by this Agreement, each Party (a “Receiving Party”) may have access to confidential or proprietary technical or business information of the other Party (a “Disclosing Party”), including, without limitation, (a) know-how and trade secrets relating to the business, the affairs, products or services of such Party (whether or not reduced to writing or designated as confidential); (b) the Disclosing Party’s internal coding processes, audit processes and consulting reports; (c) computer software; (d) internal personnel, financial, marketing and other business information and manner and method of conducting business; (e) the terms and conditions of this Agreement; and (f) any other material which, by its nature, should reasonably be considered confidential (collectively, “Confidential Information”). The Receiving Party will take reasonable precautions to protect the confidentiality of the Disclosing Party’s Confidential Information, which precautions will be at least equivalent to those taken by the Receiving Party to protect its own Confidential Information. Except as required by law or as necessary to perform under this Agreement, the Receiving Party will not disclose the Confidential Information of the Disclosing Party or use such Confidential Information for the benefit of any third party or for its own benefit, except as required to fulfill its obligations and exercise its rights under this Agreement. The Receiving Party’s obligations in this section with respect to any portion of the Disclosing Party’s disclosed Confidential Information shall terminate if such disclosed Confidential Information: (i) was in the public domain at or subsequent to the time it was communicated to the Receiving Party by the Disclosing Party through no fault of the Receiving Party; (ii) was rightfully in the Receiving Party’s possession free of any obligation of confidence at or subsequent to the time it was communicated to the Receiving Party by the Disclosing Party; (iii) was developed by employees or agents of the Receiving Party independently of and without reference to any information communicated to the Receiving Party by the Disclosing Party; or (iv) was communicated by the Disclosing Party to an unaffiliated third-party free of any obligation of confidence. If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information in response to a valid order by a court or other governmental body, or otherwise as required by law, such disclosure may be made without liability provided that the Disclosing Party shall be promptly notified of such requirement and both Parties will stipulate to any orders, at the sole expense of the Disclosing Party, necessary to protect said information from public disclosure.

8.1      Neither party shall hire or directly or indirectly solicit for employment, or induce, or actively attempt to influence any employee, contractor, or agent of the other party to terminate employment or discontinue a consultancy, contractor or other business association with the other party during the term of this Agreement and for six (6) months after the termination or expiration of this Agreement.

9.1      Limited Warranties of SI. SI represents and warrants that the Services provided hereunder (i) will be performed in a professional manner and (ii) any Deliverables provided under a Statement of Work will reasonably conform to the specifications agreed to by the Parties in writing. Client shall have a period of thirty (30) days from Client’s discovery of a deficiency (but no more than ninety (90) days from the date of SI’s performance of the Services for Client that Client claims as deficient) to notify SI in writing of any deficiency in the performance of the Services. If Client does not furnish a written notice to SI specifying with reasonable particularity an alleged deficiency in the performance of the Services, such Services will be deemed to have been accepted, and SI shall have no further warranty obligation hereunder. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9.1, SI (INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS AND DIRECTORS) HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9.2      Representation and Warranties of Client. Client represents and warrants:           

          9.2.1 It owns all right, title and interest in and to, or has full and sufficient right and authority to use in the manner contemplated by this Agreement, any programming, materials or data furnished by Client to SI in connection with SI’s performance of the Services under this Agreement.

          9.2.2   It shall provide to SI all required access to its facilities and to all necessary technical documentation, software, hardware, and personnel in a timely manner in order for SI to fulfill its obligations under this Agreement;

          9.2.3   It shall provide to SI all necessary third-party software, databases, and operating systems as defined in the Statement of Work in order for SI to perform the Services; and

          9.2.4. No Federal Contractor. As a material condition of this Agreement, Client represents and warrants that: (1) Client is not an agency or instrumentality of the United States government; (2) this Agreement does not constitute, and is not entered to support, a federal government contract, subcontract or third-party contract, and (3) SI does not hereby become a subrecipient, subgrantee, project participant, or third-party contractor or subcontractor. In the event that (1) this Agreement is considered or alleged to be a federal government contract, subcontract or third party contract, or (2) by virtue of this Agreement, SI is alleged to become subject to any laws or regulations imposing any obligation to comply with an affirmative action, equal opportunity, or similar program required of federal or state government contractors or subcontractors, including without limitation Title VI and VII of the Civil Rights Act; Executive Order 11246; 29 U.S.C. §793, et seq., 38. U.S.C. § 4212, et. seq.; 41 U.S.C. § 601, et. seq.; or the regulations promulgated in 41 C.F.R. 60-1 or 41 C.F.R. 60-2; all as amended, this Agreement shall, in SI’s sole discretion, automatically terminate. Nothing herein shall prevent SI from pursuing any other rights or remedies to which SI may be entitled under this Agreement.

9.3      A breach by Client of any of the representations and warranties contained in Section 9.2 above shall relieve SI of any and all of its obligations under this Agreement and any SOWs.

9.4      Limitation of Liability. EXCEPT FOR DAMAGES RESULTING FROM A BREACH BY CLIENT UNDER SECTIONS 9.2, In no event shall EITHER PARTY be liable for any consequential, incidental, special or indirect damages suffered or asserted by THE OTHER PARTY, regardless of whether it has been advised of the possibility of such damages. IN NO EVENT WILL SI’S LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO, IN WHOLE OR IN PART, THIS AGREEMENT, OR ANY SERVICES, DELIVERABLES OR WORK PROVIDED UNDER THIS AGREEMENT OR OTHERWISE, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT UNDER THE SPECIFIC STATEMENT OF WORK RELATING TO THE APPLICABLE SERVICES DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. CLIENT ACKNOWLEDGES THAT THESE LIMITATIONS APPLY EVEN IF SI AND CLIENT HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.1    Independent Contractor. The Parties agree that the relationship of SI to the Client created by this Agreement is that of an independent contractor. Nothing in this Agreement shall create a relationship of employer/employee, joint venture or principal/agent.

10.2    Entire Agreement; Amendment and Waiver. This Agreement and each Statement of Work incorporated herein by reference collectively contain the entire understanding between the Parties hereto with respect to the subject matter of this Agreement and supersede all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, with respect to the subject matter of this Agreement. The express terms of this Agreement control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing signed by both Parties.

10.3    Section Headings. The section headings in this Agreement are for convenience only; they form no part of this Agreement and will not affect its interpretation.

10.4    Force Majeure. Any delay or failure by any Party to perform any of its obligations hereunder (except for financial or confidentiality and nondisclosure obligations) will be excused if and to the extent caused by occurrences beyond that Party’s reasonable control, including acts of God, strikes or other labor disturbances, war (whether declared or undeclared), sabotage, terrorism, civil strife or commotion, acts by governmental authorities and any other cause or causes, whether or not similar to those specified herein, which cannot reasonably be controlled by such Party. If any such delay or failure continues for a period in excess of thirty (30) days, then, notwithstanding the termination provisions set forth above, any Party has the right to terminate this Agreement upon written notice to the other Party

10.5    Governing Law; Venue and Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, without giving effect to principles of conflicts of Law that would result in the application of the Laws of any other jurisdiction. EACH PARTY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF COMPETENT STATE AND FEDERAL COURTS IN THE STATE OF FLORIDA FOR ANY LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND TO THE VENUE OF SUCH LITIGATION OR PROCEEDING IN THE STATE OR FEDERAL COURTS LOCATED IN DUVAL COUNTY, FLORIDA. THE PARTIES HAVE AGREED TO ARBITRATE ANY AND ALL DISPUTES HEREUNDER, PLEASE SEE PARAGRAPH 10.12.

10.6    Severability. In the event that any provision of this Agreement shall be held to be illegal, or otherwise unenforceable, such provision shall be severed and the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect; provided, however, that if the severing of such provision results in a material alteration of this Agreement, the remaining provisions of this Agreement shall be adjusted equitably so that no Party benefits disproportionately.

10.7    Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other Party; provided, however, that SI may, without the prior consent of Client, (i) assign any or all of its rights and interests hereunder to one or more of its affiliates or any successor-in-interest, provided such assignee has agreed to be bound by the terms and conditions of this Agreement and (ii) designate one or more of its qualified independent contractors to perform its obligations hereunder (in any or all of which cases SI nonetheless shall remain responsible for the performance of all of its obligations hereunder). Notwithstanding the foregoing, SI may, without the written consent of Client, assign or transfer this Agreement and SI’s obligations hereunder to any third-party as part of a sale or exchange of all or substantially all of the assets of SI; provided, further, that (i) the third-party to which this Agreement is assigned or transferred under this sentence must agree to be bound by the terms and conditions of this Agreement for such assignment or transfer to be effective and (ii) upon such assignment and such acceptance, the obligations and duties of SI under this Agreement shall terminate and have no further force or effect.

10.8    No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon anyone other than the Parties and their respective successors and permitted transferees or assigns.

10.9    Notices. All notices, reports, requests, approvals and other communications required or permitted under this Agreement must be in writing and will be deemed given when: (i) sent by commercial overnight courier with written verification of receipt, or (ii) sent by registered or certified mail, postage prepaid, with return receipt requested. All communications must be sent to the receiving Party’s address (as provided on page 1 of this Agreement) or to any other address that the receiving Party may have, by proper notice, provided for the purpose of revising its notice address. Notices to SI shall be directed to its President at the address set forth on the first page of this Agreement. Notices to Client shall be directed to Client at its address set forth on the signature page of this Agreement (or as separately provided on an SOW).

10.10 Survival. The provisions of Sections 4.3, 6, 7, 8, 10.1-10.9, 10.12 and this Section shall survive the termination or expiration of this Agreement.

10.11 Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or portable document format (PDF)), all of which shall be considered an original copy of one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties hereto and delivered to the other Parties.

10.12 Individual Arbitration of Covered Disputes and Related Provisions. Applicability; Exceptions; Court and Jury Trial Waiver. Under this Section 10.12 of the Agreement, the parties, mutually agree that any and all disputes arising out of or related to this Agreement (“covered disputes”) shall be subject to final and binding arbitration under the arbitration provisions set forth below and not decided by a court or a jury. This means that SI and Client (collectively, the “Arbitration Parties”) have selected arbitration as the sole and exclusive forum for the Arbitration Parties to sue or be sued for all covered disputes, regardless of when the dispute first arose and irrespective of the time period(s) involved in the dispute (subject to the applicable statute of limitations), and that none of the Arbitration Parties shall have any right to bring or litigate any covered disputes in court or before a jury.

The Arbitration Parties intend to require arbitration of all covered disputes that can lawfully be arbitrated. It is understood by the parties that “covered disputes” shall include any and all such disputes not only against the Arbitration Parties but also their owners’ heirs, executors, personal representatives, officers, agents, employees, members, shareholders, directors, managers, attorneys, successors and assigns and affiliates; the parties further agree that all of those described in this sentence (other than the Arbitration Parties themselves) are third- party beneficiaries of this Section 10.12. The terms of this Section 10.12 shall and will continue to apply to the Arbitration Parties regardless of the date that SI first or last provided services under this Agreement and regardless of when any covered dispute arose, subject to the applicable statute of limitations. Because the term “covered disputes'' only covers disputes or claims that either party has the legal right to sue for in court or before a jury, it is understood that nothing in this Section 10.12 limits or forecloses any legal rights that either party may have to commence, participate in, or assist others in any proceeding or investigation of any nature before or related to an administrative, regulatory, or law enforcement agency.

THE ARBITRATION PARTIES WAIVE ANY RIGHT TO A TRIAL BY A JURY OF A COVERED DISPUTE OR TO HAVE A COVERED DISPUTE BE DECIDED BY A COURT OR A JURY. ANY VENUE SELECTION CONTAINED IN THIS AGREEMENT SHALL NOT BE DEEMED A WAIVER OF THIS ARBITRATION AGREEMENT BUT RATHER IN THE EVENT A COURT SHOULD SET IT ASIDE.

Usage of JAMS Streamlined or Comprehensive Arbitration Rules and Procedures; Arbitrator to Decide All Issues; Arbitrator’s Decisions Are Final and Binding. Any of the Arbitration Parties shall initiate arbitration under either the Streamlined or Comprehensive Arbitration Rules and Procedures of JAMS, the largest private alternative dispute resolution provider in the world. Those Rules and Procedures are currently available for review at www.jamsadr.com (under the Rules/Clauses tab). The arbitrator (and not a court or jury) shall decide all issues in any covered dispute including but not limited to issues regarding the non-availability of class arbitration, timeliness, scope of arbitrator’s authority, arbitration procedures, statute of limitations, and all other issues regarding the application, interpretation, enforceability, coverage, and implementation of this Section 10.12. The arbitrator’s decisions shall be final and binding. The Arbitration Parties agree that a court of competent jurisdiction shall have the authority to enter a judgment upon the award made by the arbitrator or to confirm an arbitration award, and any such proceeding shall not itself be deemed a covered dispute.

Location of Arbitration Shall Be Closest to SI; Selection and Authority of Arbitrator; Full Remedies Available; Choice of Law; Statute of Limitations; Enforceability. The Arbitration Parties agree that any such arbitration shall be held in Jacksonville, FL, or such other location as SI may designate in its sole and absolute discretion. It is further agreed between the Arbitration Parties that a single arbitrator shall be selected by the parties to any such arbitration consistent with the applicable JAMS Rules and Procedures. To the fullest extent permitted by law, the Arbitrator shall have the power and authority to award any remedy or relief available under applicable law and shall be the sole authority to interpret and apply the provisions in this Section 10.12 of the Agreement. This Agreement and this paragraph 10.12 including but not limited to the resolution of all covered disputes are governed by federal and state arbitration laws, except for any such arbitration law that would otherwise prohibit or bar the arbitration of covered disputes. The Arbitrator shall have the authority to apply any federal, state, or municipal law, or executive order, or any common law that the Arbitrator deems applicable to the covered dispute. In the case of state law, the Arbitration Parties authorize the Arbitrator to apply the law of the state of Florida. Any and all issues arising out of this Agreement or a covered dispute, including but not limited to issues regarding this Section 10.12 governing arbitration and its application, coverage, scope, enforceability, validity, irrevocability, remedies, location, limitations, fees (see below), awards (see below), attorneys’ fees (see below), opt-out provisions (see below), class action waiver (see below), and choice of law, shall be decided by the Arbitrator and not by a court or jury. Likewise, any questions, issues, matters, or disputes arising under this Section 10.12 regarding arbitration, including but not limited to whether any such question, issue, matter, or dispute should be decided by an arbitrator or a court or jury, shall be decided by the Arbitrator and not by a court or jury. The statute of limitations for any covered dispute shall be consistent with the applicable statutory and common law statutes of limitations. If there are any ambiguities in the terms or conditions of this Section 10.12 (or, for the sake of clarity, any provisions that are inconsistent), it is the Arbitration Parties’ intent that all ambiguities or inconsistencies be resolved in favor of arbitration. If any provision of this Section 10.12 is unenforceable, the remainder of this Section 10.12 shall remain in full force and effect.

Individual Arbitrations; No Consolidated or Joint Actions; Class and Collective Action Waiver. The Arbitration Parties agree that all covered disputes brought against each other by another Arbitration Party will be arbitrated on an “individual basis” only (which, for purposes of this Agreement, means only between the applicable Arbitration Parties) and not in a class action arbitration, a collective action arbitration, or on a group, representative, consolidated or joint basis with any parties other than the Arbitration Parties. The Arbitrator shall have no authority to consider or resolve any claim or issue in a covered dispute on any basis other than on an individual basis and may not consolidate or join one or more covered disputes. The provisions in this Section 10.12 mean that both parties waive their right to commence, become a party to, or in any way participate as a representative or member in any class action, collective action, or group or representative action, proceeding, or claim against the other party or in any such action or claim consolidated or joined with another person or entity, with respect to any covered dispute, and each Arbitration Party agrees to opt-out of or be severed from any such action, proceeding or claim. For the sake of clarity, it is understood that nothing in this paragraph 10.12 limits or forecloses any Arbitration Party’s right to give testimony or assist another private or a governmental party in any proceeding of any nature.