TDSIT Master Agreement

This Master Agreement, including the attached Exhibits/Schedules (this “Agreement”), is entered into by and between TDSIT, LLC, a limited liability corporation with principal offices located at 203 S Bloomington St., Lowell, AR ("TDSIT, LLC") and client named in Schedule A (Client) This agreement is made effective at the time of signing Schedule A.  In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by both Parties, TDSIT, LLC and Client hereby enter into this Agreement.  Whenever used in this Agreement, the term Client shall be understood to include Client and each of its subsidiary entities. The individuals signing this document acknowledge that they have the authority and are authorized to do so on behalf of the Party indicated. 

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This Agreement references the following attachments on file related to Schedule A: 

 

                                    Terms and Conditions

                                    Schedule A – Proactive Managed IT Partner Plan

 

AGREEMENT TERMS AND CONDITIONS

 

DEFINITIONS

 

“Agreement” means the Master Agreement being entered into between TDSIT, LLC and Client, which Agreement includes these Terms and Conditions and all of the attached Exhibits and Schedules which may be added to and become a part hereof by the mutual consent of the Parties. 

“Client and/or Client Data” means Client’s data and content that is transferred by Client to TDSIT, LLC or received from Client and processed by TDSIT, LLC.

 “Fees” means any Subscription Fees, Professional Services Fees and/or other fees which are mutually agreed to between TDSIT, LLC and Client, or on any future mutually agreed upon proposal signed by both parties.

“Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trademarks, service marks, know-how, and any other similar rights or intangible assets recognized under any laws or international conventions and in any country or jurisdiction in the world, and all present and future registrations, applications, disclosures, renewals, extensions, continuations, or reissues of the same.

“Internal Use” means ordinary use by Client for its own internal business purposes. Except as permitted in the preceding sentence, Internal Use does not include the right to provide the TDSIT, LLC Services to third parties for other commercial purposes whether by lease, rental, transfer, assignments, sale, sublicense, or any other means, including commercial time-sharing, rental, or service bureau use.

“TDSIT, LLC Services“ means all the services (such as application services) described in this Agreement that are provided by TDSIT, LLC, or third party subcontractors, to Client under this Agreement including, but not limited to, those services set forth within Exhibit A – as well as any other services that may be specified in a future mutually agreed upon proposal signed by both parties.

“TDSIT, LLC Software” means the application and utility software developed by TDSIT, LLC. 

“Hosting Site” means the computer networks and operating system software that is provided by TDSIT, LLC OR A THIRD PARTY through AN arrangement of TDSIT, LLC.

“Statement of Work” means the document that will be created, and mutually agreed upon and signed by both parties, to define the details of the services to be performed as described in Exhibit A. 

 “Regulatory Requirements” mean Federal, State and local laws, rules and regulations applicable to this Agreement, the TDSIT, LLC System, and Client’s use of the TDSIT, LLC Services.

“Site” means each Client site that will be receiving the TDSIT, LLC Services, which sites are set forth on the attached Exhibit A.

“Site Sign Off” means a checklist indicating completion of set up, training, and if applicable, data conversion services.

Additional Documents means the Exhibits (as well as any schedules or Statements of Work) added from time to time to this Agreement and the corresponding terms and conditions entered into by the Parties fromtime to time, and made a part hereof.

Additional Services refers to consulting and other technology services that may be provided by TDSIT, LLC, or third party subcontractors, which are outside the scope of this Agreement and related Exhibits, in terms ofpurpose, proposal, statement of work, agreement and execution of services, service and product fees, and scheduling.

Applications mean any and all software products or services that may operate on the Client Network or may be delivered as a Service.

Authorized Contact(s) means contacts designated by Client who may approve Services requested, and on whose approval shall be considered valid and payable under the terms of this Agreement.

Business Hours, unless otherwise noted, means the hours of 8:00 am until 5:00pm Central Time, Monday through Friday, excluding recognized TDSIT, LLC holidays.

Client Equipment refers to any equipment owned by Client and within TDSIT, LLC's management, control or possession.

Client Network means the technology equipment owned or leased by Client, or through which Client receives services (e.g., hosted virtual servers, firewalls, etc.) including but not limited to, routers, firewall appliances,switches, computer servers, cabling, computer workstations, portable computers, tablets, peripheral devices, storage devices, remote-connectivity and wireless devices, software, firmware, drivers and related products.

Confidential Information means the terms of this Agreement and any confidential and/or proprietary information and data related to technology and business activities, including, but not limited to, trade secret,technical, developmental, marketing, sales, strategies, operating, performance, cost, know-how, business and process information; computer programming techniques, file formats, interface protocols and interfaceformats, computer programs and software (including, but not limited to architecture diagrams, source code, object code, software output, screen displays/file hierarchies, graphics and user interfaces), all record bearingmedia containing or disclosing such information and techniques; samples, models or prototypes, or parts thereof; formulas; Client or third party data. Confidential Information does not include information which (a) hasbeen or may in the future be published or is now or may in the future be otherwise in the public domain through no fault of the receiving Party; (b) prior to disclosure pursuant to this Agreement is property within thelegitimate possession of the receiving Party; (c) subsequent to disclosure pursuant to this Agreement is lawfully received from a third party having rights in the information without restriction; and (d) is independentlydeveloped by the receiving Party through parties who have not had access to such Confidential Information.

Connectivity refers to data transmission with satisfactory throughput from computer(s) within Client Resources destined for hosted service(s) through the global Internet or a dedicated network facility rented from acommunications carrier and connected to the hosted data center for the purpose of using network services.

Material Breach means any material failure to comply with any material term of this Agreement.

Party or Parties means TDSIT, LLC and Client individually or collectively.

Product means technology equipment and/or services, not already owned or leased by Client, which TDSIT, LLC may supply as a part of the Services and other projects, including but not limited to, computers,networking equipment and peripherals, as well as services delivered solely by automated systems.

Recognized Holidays means New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Day after Thanksgiving, and Christmas Day.

Service Fees mean the periodic fees paid to TDSIT, LLC by Client for services included under one or more Exhibits to this Agreement.

Service Request(s) refers to specific requests for Products or Services made by a Client’s Authorized Contact to TDSIT, LLC.

Service Requestor(s) means contacts designated by Client who are authorized to request Products or Services.

Service Level Agreement(s) (SLA) means the performance standards described in each Exhibit.

Setup Fee(s) refers to a one-time fee payment related to the initiation of Services under one or more Exhibits to this Agreement.

Setup Period means the period beginning on the date Services are scheduled to begin and ending on the date when services are fully provisioned, as defined by one or more Exhibits attached to this Agreement.

Technician refers to various TDSIT, LLC employees who may work on the Client Network, either in person on the Client site, remotely by means of telephone support, through remote access of the Client Network or byother activities either at the Client site, TDSIT, LLC facilities or other locations.

Term refers to a period time during which services are provided under one or more Exhibits to this Agreement.

Labor Rate refers to the hourly rate charged to Client for the use of TDSIT, LLC labor for services which are outside the scope of TDSIT, LLC’s monthly service agreement with Client. Rates may vary by skill set.

Monthly User Count refers to the total number of distinct named users who utilized a Service during the monthly billing period for which charges are being computed.

End User Billing refers to a direct billing relationship between TDSIT, LLC and Client. End user billing is computed by multiplying the End User Billing Rate for a Service by the Monthly User Count for that Service.

 

1. TDSIT, LLC SERVICES AND DEPLOYMENT.

1.1         TDSIT, LLC Services Purchased.  TDSIT, LLC agrees to provide to Client the TDSIT, LLC Services set forth in this Agreement including those specifically set forth on the attached Exhibit A; additional TDSIT, LLC Services may be provided to Client to the extent set forth in any additional Statement of Work or Exhibit executed in the future by both parties. 

1.2         Deployment.  Upon execution of this Agreement by both parties, both parties will promptly undertake the activities necessary to allow Client access to the TDSIT, LLC Services.  After the Effective Date, TDSIT, LLC will prepare a Statement of Work with an estimated “go-live” date and submit it to Client for Client’s approval, which will not be unreasonably withheld or delayed.  Both parties agree to make a good faith effort to complete the setup, training and, if applicable, conversion activities (the “Deployment”) in a timely fashion and to perform the Deployment according to the responsibilities described in the Planning Schedule.  Client further agrees to cooperate with TDSIT, LLC in fulfilling any reasonable request that is necessary to complete the Deployment in a timely and professional manner.  TDSIT, LLC will notify Client in writing when the Deployment is complete (the “Commencement Date”.)

1.3         Commencement and Testing.  On the Commencement Date, TDSIT, LLC will provide access to the test environment for inspection and evaluation purposes but not for productive or commercial use.  Client will execute the Site Sign-Off within three (3) days from the Commencement Date (“Testing Period”), and Client will indicate either (a) that Deployment is complete in accordance with the responsibilities set forth in the Planning Schedule, or (b) within such Testing Period, describe in reasonable detail, all Deployment requirements set forth in the Planning Schedule that are not completed.  If Client does not provide timely notice of uncompleted Deployment activities during the Testing Period as set forth above or if Client uses the hosted site for productive or commercial purposes for a period of fourteen (14) days or more at the Site, then the test environment will be deemed accepted by Client (“Deemed Acceptance”).

1.4         Acceptance or Correction.  Client’s acceptance of the test environment (“Acceptance”) occurs on the earlier of (i) the receipt of Client’s notice of acceptance or (ii) Deemed Acceptance.  If, during the Testing Period, Client provides notice describing uncompleted Deployment requirements, then TDSIT, LLC will use commercially reasonable efforts to complete the Deployment Requirements. 

1.5         Licensing:  Software must be properly licensed. In certain instances, Client will be required to register the use of license keys with the software vendor (i.e. all Microsoft licenses) and complete and file requisite documentation and maintain software assurance or other maintenance as required by the software vendor. All Third Party Software is provided “As Is” and Customer shall look solely to the software developer for any claims.

 

2.           LICENSE GRANT; RESTRICTIONS.  Subject to the terms and conditions of this Agreement and upon Acceptance, TDSIT, LLC grants to Client, during the Term of this Agreement as defined in Section 14, license to access and use the applicable TDSIT, LLC Services and TDSIT, LLC Software solely for Client’s Internal Use.  Client acknowledges that nothing in this Agreement provides Client with a right to directly access the code of the TDSIT, LLC Software and that the TDSIT, LLC Software will be installed only on the servers provided by the Hosting Sites.  Client will not: (i) copy, modify, or create derivative works of the TDSIT, LLC Services or TDSIT, LLC Software; (ii) license, sublicense, sell, resell, market, reproduce, transfer, assign, or distribute the TDSIT, LLC Software in any way; (iii) reverse engineer, decompile, disassemble, or translate the TDSIT, LLC Software; (iv) access the TDSIT, LLC Software in order to build a competitive product or service.

 

3.           SECURITY.  TDSIT, LLC and Client agree to comply with the security measures set forth on the attached Exhibit A in order to protect Client Data (the “Security Measures”).  Client acknowledges that, notwithstanding any physical, technical, and/or administrative controls and safeguards that TDSIT, LLC may institute to protect Client Data, the use of or connection to the Internet provides unauthorized third parties the opportunity to circumvent these precautions to gain access to the TDSIT, LLC Services and Client Data.  If TDSIT, LLC reasonably believes that Client Data has been accessed by or disclosed to an unauthorized person as a result of the Security Measures being compromised, then TDSIT, LLC will immediately notify Client of the problem’s existence and extent (as known) and what TDSIT, LLC is doing to correct the problem.  However, TDSIT, LLC may temporarily delay notification, to the extent that such delayed notification is required by court order or applicable laws in order for TDSIT, LLC to assist in any governmental or criminal investigation relating to the unauthorized access to Client Data.  Client shall be responsible for informing its customers about any unauthorized access or disclosure of Client Data according to applicable law. 

 

4.           CHANGES TO THE SERVICES.

4.1         Changes in TDSIT, LLC Services.   In the normal course of business, TDSIT, LLC may modify the TDSIT, LLC Services and/or the TDSIT, LLC System for reasons including changes in Regulatory Requirements, changes in product and service offerings, changes in communications and computer industry products and standards, and new equipment or system software offerings by TDSIT, LLC suppliers.  TDSIT, LLC may, at any time, discontinue any of the TDSIT, LLC Services upon providing Client fifteen (15) days’ prior notice.  TDSIT, LLC may discontinue any of the TDSIT, LLC Services immediately upon the imposition of any regulatory, legislative, or judicial determination that the TDSIT, LLC Services violate any applicable law or regulation or in the event that any Third Party Services or software are no longer available.

4.2         Service Versions. It is agreed that routine upgrades and modifications, including routine enhancements, patches, bug fixes, and minor updates made generally commercially available (“Standard Updates”) to the TDSIT, LLC Services and TDSIT, LLC System used by TDSIT, LLC to provide the Application Services to Client will be provided at no additional cost to Client.

 

5.           FEES.

5.1         Subscription Fees.  Commencing on the Effective Date and continuing each month thereafter, Client will pay TDSIT, LLC the Subscription Fees reflected in TDSIT, LLC’s invoice (which will be in accordance with the terms set forth on Exhibit A within thirty (30) days of receipt of such invoice.  Unless otherwise specified in Exhibit A, Subscription Fees for the TDSIT, LLC Services will be due on a monthly basis.  For any partial month, Client shall pay a pro-rata amount, calculated from the beginning date in which the Subscription Fee is due until the end of the applicable month.  During the Initial Term, the Subscription Fees will not be changed.  TDSIT, LLC may change its Subscription Fees for TDSIT, LLC Services by notifying Client in writing at least thirty (30) days in advance of any Renewal Term, with such new pricing to take effect upon commencement of such Renewal Term.

5.2         Professional Services Fees. Client will pay the Professional Services Fees set forth on Exhibit A (and any mutually agreed upon Professional Services Fees that may be set forth in the future). Client agrees to reimburse TDSIT, LLC for all reasonable out-of-pocket expenses (e.g. travel, lodging, meals, long distance telephone calls, and printing and copying charges) in connection with the Services; provided that meals and incidental expenses shall be invoiced at amounts actually incurred. Additional training may be purchased by Client at the then prevailing rates, subject to availability of TDSIT, LLC personnel and resources.

5.3         Additional Fees; Out of Scope Services. Without limiting the general applicability of the forgoing, the following are “out of scope” services subject to additional charges on a mutually agreed basis:  (i) delay caused by Client’s failure to timely fulfill Client’s responsibilities under the Planning Schedule or to make available the personnel, network configuration, or other system requirements; (ii) correction by TDSIT, LLC of Client errors or defects in Client Data or the format thereof and/or additional reformatting or verification testing required as a result of such Client errors or defects; (iii) Client change orders and/or Client requested customizations; and (iv) Client requested additional services and products.  Client requests for professional services that are outside the scope of the type of TDSIT, LLC Services being provided under this Agreement, are subject to TDSIT, LLC’s acceptance, which acceptance may be withheld in TDSIT, LLC’s reasonable discretion. 

5.4         Taxes and Additional Charges.  Client agrees to pay any sales, use, withholding, VAT, excise, personal property, or any other similar tax or charge, or duty or assessment levied or assessed by any governmental authority as a result of receipt of the TDSIT, LLC Services under this Agreement, or any other service or materials provided to Client under this Agreement, with the exception that TDSIT, LLC will pay any income or similar taxes assessed on TDSIT, LLC by any governmental authority as a result of TDSIT, LLC’s receipt of revenues pursuant to this Agreement.  For avoidance of doubt, to the extent that a sales tax is due and owing to a governmental authority as a result of receipt of the TDSIT, LLC Services under this Agreement, Client (and not TDSIT, LLC) shall be responsible for payment of any such applicable sales or use taxes. 

5.5         Late Payment.  Client will not make or assert any right of deduction or set-off against TDSIT, LLC’s fees and other charges.  Without limiting TDSIT, LLC’s rights and remedies under this Agreement, at law or in equity, TDSIT, LLC may charge Client a late fee of up to 2% per month or the maximum rate permitted by law, whichever is lower, on any fees or other charges to the extent not timely and reasonably disputed (“Undisputed Amounts”) that are not paid on or before the due date.  Client shall be responsible for collection costs incurred by TDSIT, LLC in order to collect Undisputed Amounts owed by Client under this Agreement, including without limitation, legal costs.  Without limiting the forgoing or any other rights and remedies of TDSIT, LLC in law or in equity, upon thirty (3) days written advance notice, TDSIT, LLC may suspend and or terminate Client’s access to any TDSIT, LLC Services for failure to pay TDSIT, LLC any Undisputed Amounts which are delinquent under this Agreement.

 

6.           ACCESS TO TDSIT, LLC SERVICES.

6.1         TDSIT, LLC Services to Client Through Remote Access to the Hosted System.  TDSIT, LLC will have the right to manage the Hosting Site, and all peripheral devices and databases at the hosted site as TDSIT, LLC deems appropriate. 

6.2         Privacy and Hosting Site Requirements.

              a.       Privacy Requirements.  TDSIT, LLC agrees to comply with the privacy terms and conditions set forth on the attached Exhibit .

              b.       Transmission of Data.  Client is responsible for the input, transmission, or delivery to TDSIT, LLC of all information and data required by TDSIT, LLC to perform the services in Exhibit A.  Provided, however, in the event that Client deletes or modifies any Client Data, TDSIT, LLC shall have no liability for such Client deletion or modification of Client Data.  The Client Data utilized by Client in connection with the TDSIT, LLC Services must be in a format and manner approved by TDSIT, LLC.

6.3         Errors in Data Supplied.  TDSIT, LLC will process items and data and perform the TDSIT, LLC Services on the basis of information input and supplied by Client.  TDSIT, LLC will be entitled to rely upon any data, information, or instructions provided by Client.  If any error results from incorrect data supplied by Client, then Client (a) is responsible for discovering and reporting that error to TDSIT, LLC and supplying the data necessary to correct the error, and (b) assumes any risk of loss caused by such Client error in the transportation or transmission by electronic means of data and information from any terminal or remote unit. 

 

 

7.           THIRD PARTY APPLICATIONS. TDSIT, LLC Services may include certain applications listed on Exhibit A as updated from time to time by TDSIT, LLC during the term of this Agreement (“Third Party Applications”) provided by third parties (“Third Party Providers”) in connection with providing the TDSIT, LLC Services to Client hereunder.  TDSIT, LLC has listed on Exhibit B those Third Party Applications and Third Party Providers currently being used as of the Effective Date.  TDSIT, LLC will provide Client with written notification of any future changes in such Third Party Applications and/or Third Party Providers and update Exhibit B as applicable.  If Client orders a Third Party Application as identified on Exhibit B (or in a future mutually agreed upon proposal), Client agrees that (i) access to the Third Party Application is subject to, and Client agrees to comply with, that Third Party Application’s terms and conditions, and (ii) to the extent authorized by the Third Party Providers, TDSIT, LLC will pass through any warranty terms applicable to the Third Party Application.  TDSIT, LLC, however, is not responsible for any warranty support related to that Third Party Application, except to assist Client in communicating warranty claims to the Third Party Provider.  NOTWITHSTANDING ANYTHING TO THE CONTRARY, TDSIT, LLC IS NOT LIABLE FOR ANY DELAY IN DELIVERY OR UNAVAILABILITY OF THIRD PARTY APPLICATIONS ORDERED BY Client AND TDSIT, LLC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE RELATED TO SUCH THIRD PARTY APPLICATIONS.  ALL SUCH THIRD PARTY APPLICATIONS ARE PROVIDED BY TDSIT, LLC "AS IS" AND “AS AVAILABLE”.  Orders by Client for Third Party Applications may be non-cancellable and non-returnable to TDSIT, LLC.  TDSIT, LLC reserves the right to change Third Party Providers or to provide similar services directly to Client with notice, provided that the services shall not be materially diminished in quality or performance.  TDSIT, LLC may pass through any increase in fees from Third Party Providers. Client shall reimburse TDSIT, LLC for any Third Party Provider fees or charges incurred by TDSIT, LLC on behalf of Client.  The continued availability of Third Party Applications is not within the control of TDSIT, LLC and Client therefore agrees that TDSIT, LLC may cancel and cease to provide any Third Party Applications with a minimum of fifteen (15) days prior notice at any time without liability to Client.  In case of cancellation, TDSIT, LLC will reasonably assist Client in identifying an alternative provider of the Third Party Applications. TDSIT, LLC does not support Third Party Applications other than the Third Party release version commercially supported by TDSIT, LLC.  TDSIT, LLC does not warrant that the versions of the Third Party Applications set forth on the attached Exhibit __ (as well as the versions of any Third Party Applications added to Exhibit B by TDSIT, LLC at a future date), shall operate with the TDSIT, LLC Application Services to permit Client to effectively access and utilize the TDSIT, LLC Services throughout the Term of this Agreement.

 

8.           DATA SUPPORT SERVICES AND BACKUP.

8.1         Technical Support.  TDSIT, LLC will have personnel available to Client’s designated technical contact via telephone and/or email to respond to technical or maintenance issues related to the TDSIT, LLC Services during the hours of 8:00 am – 5:00 pm Central Time, Monday through Friday, with the exception of TDSIT, LLC holidays.  (“Technical Support”.)  In the event that Technical Support is required to address a “Production Critical Incident” (as defined on Exhibit A), TDSIT, LLC will provide Client with personnel who will be available to promptly address and resolve the production critical incident on a 24/7/365 basis.

8.2         Exceptions.  Client may be responsible for expenses incurred in resolving problems caused by any of the following:  (i) Client software or other Client systems not provided by or through TDSIT, LLC or approved by TDSIT, LLC, (ii) failure by Client in fulfilling Client Responsibilities described below; or (iii) customizations or development of new interfaces performed by parties other than TDSIT, LLC or a TDSIT, LLC approved or recommended Third Party Provider.  In such event, TDSIT, LLC and Client shall agree on any additional fee to be charged to Client for such services.

8.3         Data Backup.  TDSIT, LLC will assist in the recovery of any lost or damaged items or data as an Additional Service not included within the standard services of Exhibit A.  

 

9.           Client RESPONSIBILITIES.

9.1         Management of Client Resources.  Unless otherwise agreed in writing Client is responsible for obtaining and maintaining, at its own expense, all data processing and communications equipment, as well as any third party hardware, software, or services (collectively the “Client Resources”).

9.2         Client Networks.  Client acknowledges that changes to Client’s computer networks may adversely affect the performance of the TDSIT, LLC Services.  Therefore, if Client changes its computer networks after Acceptance without receiving written approval from TDSIT, LLC, then Client assumes all risks. 

9.3         Training.  Client’s personnel who will administer Client’s implementation of the TDSIT, LLC Services must take TDSIT, LLC’s standard product training.  In the event of turnover and or reassignment, Client agrees to schedule and pay for additional TDSIT, LLC standard product training to ensure that Client maintains trained technical staff at all times during the term of this Agreement.

9.4         Acceptable Use; Security.  Client will comply with TDSIT, LLC’s operating instructions for the use of the TDSIT, LLC Services.  Client will also abide by all local, state, and federal laws applicable to the use by Client of the TDSIT, LLC Services, including without limitation as such laws are amended or adopted from time to time during the term of this Agreement.  Client acknowledges that TDSIT, LLC does not control the information passing through the network and that it is Client’s responsibility to ensure that any Client Data complies with all applicable laws and regulations and does not infringe the Intellectual Property Rights or other rights of TDSIT, LLC or third parties.  Client: (i) will not use the network to gain or attempt to gain unauthorized access to other computer systems accessible; (ii) will not use the network to interfere with or disrupt use and enjoyment of other customers (interference or disruptions include propagation of computer worms or viruses or use of the network to make unauthorized entry into any other computer or machine accessible via the Internet) and (iii) will take commercially reasonable steps to prevent its users from doing any of the prohibited activities described in either (i) or (ii) above.

9.5         Password and Login Information.  TDSIT, LLC will issue to Client an administrative login to access administrative tools and back end support (“Administrative Login”).  Client shall only provide Client’s employees who are authorized to administer TDSIT, LLC Services (“Authorized Administrators”) with access to the Administrative Login. Client and its Authorized Administrators are responsible for maintaining the confidentiality of the Administrative Login. Client and TDSIT, LLC will comply with the requirements set forth on Exhibit A to help ensure that User Accounts will only be used by the person for whom it was created or other authorized personnel

9.6         Client and TDSIT, LLC Indemnification.

              a.       Client Indemnification.  Client will defend, and/or settle, any third party claim or suit brought against TDSIT, LLC or its employees, agents, officers, directors, or contractors (“TDSIT, LLC Indemnified Parties”) caused by the negligent actions or omissions or intentionally wrongful actions of Client arising out of or related to: (i) the use or transmission of Client Data,  (ii) the loss, theft, or misuse of passwords and/or login information used to access the Administrative Login or User Accounts, or (iii) violation of Regulatory Requirements applicable to Client’s business operations, and Client will pay all damages finally awarded by a court of competent jurisdiction or agreed to in settlement by Client attributable to such claim, provided that in each case (a) Client is notified in writing of such claim; (b) TDSIT, LLC provides information and assistance reasonably requested by Client or Client’s designee and (c) Client is given and assumes responsibility for sole control of defense and settlement of such third party claim; provided that (i) Client shall not settle such claim without the consent of TDSIT, LLC which consent will not be unreasonably withheld and (ii) TDSIT, LLC or its designee may participate at its own cost in any defense.

              b.       TDSIT, LLC Indemnification.  TDSIT, LLC  will defend, and/or settle, any third party claim or suit brought against Client or its employees, agents, officers, directors, or contractors (“Client Indemnified Parties”)  caused by the negligent actions or omissions or  wrongful actions of TDSIT, LLC arising out of or related to: (i) the use or transmission of Client Data, (ii) the loss, theft, or misuse of passwords and/or login information used to access the Administrative Login or User Accounts, or (iii) violation of Regulatory Requirements applicable to TDSIT, LLC’s business operations, and TDSIT, LLC will pay all damages finally awarded by a court of competent jurisdiction or agreed to in settlement by TDSIT, LLC attributable to such claim,  provided that in each case (a) TDSIT, LLC is promptly notified in writing of such claim, (b) Client provides information and assistance reasonably requested by TDSIT, LLC or TDSIT, LLC’s designee, and (c) TDSIT, LLC is given and assumes responsibility for sole control of defense and settlement of such third party claim; provided that (i) TDSIT, LLC shall not settle such claim without the consent of Client which consent will not be unreasonably withheld and (ii) Client or its designee may participate at its own cost in any defense.

 

10.         WARRANTY.

10.1       Limited Professional Services Warranty and Remedy.   TDSIT, LLC warrants that any Professional Services provided by TDSIT, LLC will be performed in a professional and workmanlike manner consistent with the prevailing standards of the industry.  

10.2       Disclaimers and Exclusions.  Neither TDSIT, LLC nor any of its Third Party Providers, licensors, employees, or agents warrant that the operation of the applications will be uninterrupted or error free.  Except as expressly provided in this Agreement, TDSIT, LLC shall not be liable for any damages arising out of use or inability to use the applications unless caused by TDSIT, LLC’s sole acts or omissions which constitute gross negligence or reckless or intentional wrongful acts.  TDSIT, LLC shall not be liable for unauthorized access to or alteration, theft, or destruction of Client’s Data files, programs, procedures, or information through accident, fraudulent means or devices, or any other method, unless such access, alteration, theft, or destruction is solely caused as a result of TDSIT, LLC’s gross negligence or reckless, or intentional wrongful acts.  TDSIT, LLC does not warrant that the TDSIT, LLC Services will meet Client’s requirements or operate in combination with other hardware, software, systems, or data not provided by or through (or approved or authorized by) TDSIT, LLC or otherwise conforming to the written specifications provided by TDSIT, LLC.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TDSIT, LLC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT, BY STATUTE OR BY OPERATION OF LAW OR OTHERWISE, CONTAINED IN OR DERIVED FROM OR RELATED TO THIS AGREEMENT, ANY OF THE ATTACHED EXHIBITS OR SCHEDULES, ANY OTHER REFERENCED DOCUMENTS, THE SERVICES PERFORMED OR IN ANY OTHER MATERIALS, PRESENTATIONS, OR OTHER DOCUMENTS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

 

11.         INTELLECTUAL PROPERTY OWNERSHIP.

11.1       Client.  All Client Data is and will remain Client’s property.  Client grants TDSIT, LLC and its sub-contractors a limited right and license to modify, copy, use, reformat, display and transmit Client Data to the extent necessary to provide Client with the TDSIT, LLC Services set forth in this Agreement and/or Exhibits or Schedules and to allow TDSIT, LLC and its subcontractors to perform TDSIT, LLC’s obligations under this Agreement and to comply with any applicable laws.  

11.2       TDSIT, LLC and its Licensors.  Client acknowledges and agrees that TDSIT, LLC and its licensors retain all right, title, and interest in and to the TDSIT, LLC Services, the TDSIT, LLC Software, and the related documentation. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the TDSIT, LLC Services, including the TDSIT, LLC Software, or the Intellectual Property Rights owned by TDSIT, LLC.  TDSIT, LLC shall retain all right, title, and interest in and to any and all innovations, inventions, improvements, modifications, and works of authorship created, developed, conceived, or reduced to practice by TDSIT, LLC resulting from the TDSIT, LLC Services or the performance of any other services hereunder (“Developed IP”), and Client shall have no rights in the Developed IP whether by implication, estoppel, or otherwise.  The TDSIT, LLC name and logo and TDSIT, LLC product names are trademarks of TDSIT, LLC or third parties, and no right or license is granted to use them.  TDSIT, LLC and/or its affiliates have the sole rights to register the TDSIT, LLC Services, TDSIT, LLC Software, documentation, Developed IP, TDSIT, LLC product names and logos for purposes of copyrights, trademarks, service marks, patents, or otherwise.  Client shall not remove any notices of such copyrights, trademarks, service marks, patents or other notices from the TDSIT, LLC Services or the Documentation. 

11.3       Indemnification by TDSIT, LLC. If part or all of the TDSIT, LLC Service becomes, or in TDSIT, LLC’s opinion is likely to become, the subject of an IP Claim, then TDSIT, LLC may, at TDSIT, LLC’s option and in its sole discretion, as the sole and exclusive remedy of the Client elect to (a) procure for Client the right to use the TDSIT, LLC Services, (b) replace the TDSIT, LLC Services with other suitable products or modify the TDSIT, LLC Services so that it becomes non-infringing (subject to any applicable rights of Client under Section 4.2 hereof), or (c) terminate the TDSIT, LLC Services and refund the prepaid portion of any Fees paid by Client for unused access to the TDSIT, LLC Services or any affected portion of such Services.  TDSIT, LLC shall have no liability under this Section 11.3 or otherwise to the extent a claim or suit is based upon (v) any act or omission of any Third Party Providers, (w) the use of the TDSIT, LLC Services in a manner prohibited under this Agreement, (x) the use of the TDSIT, LLC Services by Client in a manner for which the TDSIT, LLC Services were not designed or intended, or (y), use of the TDSIT, LLC Services by Client in combination with software (except for Third Party Applications provided by TDSIT, LLC to Client), hardware, data (including without limitation, Client Data), or content not provided, by TDSIT, LLC if the infringement would have been avoided in the absence of that combination.  THIS SECTION 11.3 SETS FORTH Client’S EXCLUSIVE REMEDIES, AND TDSIT, LLC’S ENTIRE LIABILITY, FOR INTELLECTUAL PROPERTY INFRINGMENT AND/OR MISAPPROPRIATION CLAIMS DESCRIBED IN THIS SECTION 11.3.

 

12.         CONFIDENTIAL INFORMATION.

12.1       Definition.  “Confidential Information” means any information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) which, if in written, graphic, machine readable, or other tangible form, is marked as “Confidential” or “ Proprietary,”.  Furthermore, the parties acknowledge that Confidential Information includes the TDSIT, LLC Software, Client Data, and both parties’ financial data, prices, and product roadmaps.  

12.2       Confidentiality.  Each party will treat as confidential all Confidential Information of the other party, will not use any Confidential Information except to fulfill the purpose of this Agreement, and will not disclose any Confidential Information except to the Receiving Party’s employees and subcontractors who specifically “need to know” that information and who are bound by obligations of confidentiality at least as restrictive as those described above.  Without limiting the foregoing, each party will use at least the same degree of care and security safeguards (and not less than a reasonable degree of care) it uses to prevent the disclosure of its own confidential information to prevent the unauthorized disclosure of any Confidential Information of the other party.  Each party will promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.  

12.3       Exceptions.  Confidential Information excludes information that: (i) was in the public domain at the time of disclosure or has entered the public domain without fault of the Receiving Party; (ii) was known to the Receiving Party without restriction of confidentiality at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information; or (v) becomes known to the Receiving Party, without restriction of confidentiality, from a source other than the Disclosing Party and without breach of this Agreement by the Receiving Party.  The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that it is required to do so by applicable law or regulating agency, provided that Receiving Party gives notice to Disclosing Party prior to the disclosure and reasonably cooperates with the Disclosing Party’s efforts to obtain a protective order or otherwise protect or restrict the disclosure.  

12.4       Confidentiality of this Agreement.  Both parties acknowledge that this Agreement contains Confidential Information and each party agrees to limit distribution of this Agreement to those individuals with a need to know its contents, including the party’s employees, accountants, bankers, auditors, attorneys, and other advisers, and may be disclosed to subcontractors (provided that such subcontractors are not competitors of the other party) or other third parties with whom TDSIT, LLC or Client have a contractual relationship so long as such third party is under a duty of confidentiality in connection with the information disclosed.

 

13.         LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, OTHER THAN WITH RESPECT TO  ACTS OF GROSS NEGLIGENCE OR ACTS OF WILLFUL MISCONDUCT BY A PARTY, NEITHER TDSIT, LLC NOR Client (INCLUDING WITHOUT LIMTATION TDSIT, LLC, Client AND THEIR RESPECTIVE SUPPLIERS, LICENSORS, OR THIRD PARTY PROVIDERS) SHALL BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF DATA, BUSINESS, OR PROFITS, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT BASED ON BREACH OF WARRANTY, CONTRACT, OR TORT (INCLUDING NEGLIGENCE) IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  FOR AVOIDANCE OF DOUBT, THE PARTIES AGREE THAT REASONABLE DEFENSE COSTS AND/OR PAYMENT OBLIGATIONS AS SET FORTH IN SECTION 9.6.a OR b OR SECTION 11.3 AS APPLICABLE, SHALL BE DEEMED DIRECT DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, OTHER THAN WITH RESPECT TO INDEMNIFICATION OBLIGATIONS OF A PARTY UNDER SECTION 9.6 OR SECTION 11.3 HEREOF AND/OR WITH RESPECT TO ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A PARTY, A PARTY’S TOTAL AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT WILL NOT IN ANY EVENT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES PAID OR OWED BY Client UNDER THIS AGREEMENT UNDER EXHIBIT ___ FOR THE INTIAL INSTALLATION AND TRAINING FEES (INCLUDING ONE TIME CHARGES FOR TDSIT, LLC PROFESSIONAL SERVICES AND THIRD PARTY INTEGRATED SOLUTIONS), UNDER THIS AGREEMENT, OR (B) THE AMOUNT OF A PARTY’S INSURANCE COVERAGE AVAILABLE TO PAY ANY SUCH CLAIM (BUT ONLY TO THE EXTENT SUCH CLAIM IS COVERED BY INSURANCE AND ONLY UP TO THE AMOUNT OF INSURANCE PROCEEDS ACTUALLY PAID IN CONNECTION WITH SUCH CLAIM).  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY TO MEET ITS ESSENTIAL PURPOSE.

 

14.         TERM. Unless otherwise terminated in accordance with the terms of this Agreement including Section 15 (“Termination of Agreement”), this Agreement (including the Services provided under Exhibit ___ shall continue from the Effective Date through the conclusion of the Term stated in the Exhibit or Schedule (the “Term”) unless earlier terminated under the provisions of Section 15. 

 

 

15.         TERMINATION OF AGREEMENT.

15.1       Termination by TDSIT, LLC.  TDSIT, LLC may terminate this Agreement, including all Exhibits, Schedules, and proposals hereunder, terminate access to all TDSIT, LLC Services, and all Amounts payable under this Agreement to be immediately due and payable, at any time on or after, the occurrence of any of the following (i) Client becomes insolvent or a receiver or conservator is appointed with respect to the Client, (ii) Client fails to timely pay any Amounts owed to TDSIT, LLC under this Agreement and then, after ten (10) days written notice, does not cure that failure, or (iii) Client materially fails to perform any of its other covenants or obligations under this Agreement and then, after ten (10) days written notice, does not cure that failure.

15.2       Termination by Client.  Client may terminate this Agreement, including all Exhibits. Schedules, and proposals hereunder, at any time on or after, the occurrence of any of the following:  (i) TDSIT, LLC becomes insolvent or a receiver or conservator is appointed with respect to the TDSIT, LLC, (ii) subject to any applicable Force Majeure events, as otherwise expressly permitted under this Agreement, or (iii) TDSIT, LLC materially fails to perform any of its covenants or obligations under this Agreement and then, after 90 days written notice, does not cure that failure.

15.3       Termination for Non-Acceptance.  This Agreement or an applicable Order Form may also be terminated in accordance with Section 1.4. for non-Acceptance.

15.4       Effect of Termination.  

              a.       If this Agreement or an applicable proposal terminates for any reason, then: (i) all relevant rights and licenses that have been granted to Client associated therewith (including without limitation access to the applicable TDSIT, LLC Services) shall terminate. Furthermore, Client and TDSIT, LLC will destroy or return to the other party all copies of Confidential Information of the other party, and Client will destroy or return all relevant copies of TDSIT, LLC Software contained on any Client hard drive or other fixed medium of storage.

              b.       In the event of termination of this Agreement for any reason, Client will pay TDSIT, LLC (i) all unpaid amounts due and owing to TDSIT, LLC under the applicable Exhibit, Schedule , and proposal from the Effective Date of such proposal up to and including the date of termination; (ii) any unpaid out-of-pocket costs of TDSIT, LLC incurred in acquiring any Third Party Applications or providing any Services; and (iii) any applicable de-conversion costs under Section 15.5.  No refund of fees will be made to Client with respect to any Services rendered by TDSIT, LLC prior to date of termination.  The termination of this Agreement shall not affect either party rights to pursue its remedies at law or in equity for the other party’s breach prior to such termination. 

              c.       The defined terms, Section 9.6 (“Client and TDSIT, LLC Indemnification”), Section 10.3 (“Disclaimers and Exclusions”), Section 11 (“Intellectual Property Ownership”), Section 12 (“Confidential Information”), Section 13 (“Limitation of Liability”), Section 15.4 (“Effect of Termination”),  and Section 17 (“Miscellaneous”), shall survive any termination or expiration of all of or part of this Agreement, together with any provision otherwise expressly stated to survive such termination or expiration for the maximum period allowed by law.

15.5       De-conversion.  Within ten (10) days of the termination or expiration of this Agreement, TDSIT, LLC will provide Client with a file(s), in accordance with the TDSIT, LLC Software’s standard data export capability, containing the Client Data. Any customization to the standard data export or file format will be charged at TDSIT, LLC’s professional service rates at the then prevailing rate hereof.  Client shall bear its own out-of-pocket costs for non-TDSIT, LLC Services required for migration of the Client Data.

 

16.         MISCELLANEOUS.

16.1        Entire Agreement; Amendment. This Agreement (including all Exhibits and Schedules) constitutes the parties’ entire agreement and understanding relating to the TDSIT, LLC Services and any related matters and supersedes all prior or contemporaneous communications, agreements, or understandings of any nature, whether oral or in writing, between the parties. This Agreement may be modified, amended, or supplemented only by a written instrument executed by both parties. 

16.2        Interpretation of this Agreement.  Pronouns, nouns, and terms used in this Agreement include the masculine, feminine, and/or neuter and singular and/or plural forms wherever appropriate to the context.  “Including” is used to list examples and is not used by way of limitation.  “Will”, “shall”, and “may not” are used as mandatory terms and “may” is used as a permissive term.  If any provision of this Agreement is held to be unenforceable or invalid, then all of the remaining provisions will continue in full force and effect.  This Agreement shall be deemed to be drafted equally by both parties after consultation with legal counsel.

16.3        No Third Party Beneficiaries.  This Agreement confers no rights upon either party employees, agents, users, or contractors or upon any other legal person or legal entity of any kind.

16.4        Assignment.  Neither party may transfer or assign this Agreement or any associated rights, in whole or in part, without the prior written consent of the other party, whether through operation of law, change of control, or otherwise; provided that either party may assign this entire Agreement to an acquirer of all or substantially all the stock or assets of such party if the acquiring entity agrees in writing to be bound by the terms and conditions of this Agreement as it existed prior to such assignment.

16.5        Waiver.  A waiver of any default by either party will not be deemed to be a continuing waiver or a waiver of any other default or of any other provisions of this Agreement.

16.6        Publicity.  TDSIT, LLC at any time may request Client to approve Client’s name and logo use in TDSIT, LLC Client lists used for marketing purposes; Client’s specific advance written consent will be required for any such use.  Upon prior written consent of the other party, a party may issue a press release (or a joint press release may be issued) relating to the business relationship between the parties.  Neither party may use the trade names, trademarks, service marks, logos, or other proprietary marks of the other party or any Third Party Provider in any advertising, marketing, public statement, or trade display without the prior written approval of the other party and, if applicable, the Third Party Provider.

16.7        Force Majeure.  Neither TDSIT, LLC nor Client will be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are not caused by the gross negligence or wrongful actions or omissions of such party, but instead are delayed or prevented by reason of any act of God, act of war, act or threat of terrorism, fire, natural disaster, accident, act of government, vendor shortages or delays, public health emergency, technical failures of Internet infrastructure not caused by the negligent or intentionally wrongful actions or omissions of such party or any other cause beyond the reasonable control of such party, provided that such party gives the other party written notice thereof promptly and, in any event, within two (2) business days of discovery thereof, and uses reasonable commercial efforts to cure the delay.  Upon the occurrence of such an event, the time for performance or cure will be extended for a period equal to the duration of such event; provided, however, that if a party is not able to materially perform its obligations under this Agreement for more than sixty (60) days because of a Force Majeure event, the other party that is continuing to perform may terminate this Agreement upon fifteen (15) days written notice to the non-performing party.

16.8        Notices. Any notice must be in writing and delivered as follows, with notice deemed given as indicated: (i) by personal delivery or by email delivery, when delivered; (ii) by overnight courier, upon written verification of receipt; or (iii) by certified or registered mail, return receipt requested, upon verification of receipt.

16.9        Dispute Resolution.

              a.       Informal Dispute Resolution.  In the event of a dispute between the parties over any matter relating to this Agreement (“Dispute”), each party agrees to use its best good faith efforts to resolve the Dispute by informal means through discussions and meetings with the other party.  The parties agree to spend a minimum of 60 days, in which at least two face-to-face meetings between the parties have occurred, and at which at least one senior level executive from each party is present.

              b.       Mediation.  If the parties are not able to informally resolve a Dispute within such 60 day period (or such longer period as is mutually agreed to between parties), then either party may request in writing that the Dispute be mediated, and the Dispute shall be mediated (the “Mediation”) with such Mediation to begin within 60 days of the date of the written request for Mediation.  The Mediation shall take place at a mutually agreeable location, or if there is no mutual agreement, in Chicago, Illinois.  The Mediation shall be conducted before a single mediator to be agreed upon by the parties.  If the parties are unable to agree on a single mediator, each party shall select a mediator and such two mediators shall together unanimously select a neutral third mediator, which neutral third mediator will conduct the Mediation.  Each party shall bear the fees and expenses of its selected mediator and the parties shall equally bear the fees and expenses of the mediator that is agreed upon by the parties or chosen by the mediators selected by the parties.

              c.       Failure to Resolve.  If a Dispute remains after the Dispute Resolution procedures set forth in Section 16.9a and b above, then either party may proceed with such other legal remedies as the party deems appropriate under the circumstances.  Except as otherwise provided in this Agreement, if any claim, suit, or other proceeding is instituted to compel compliance with or remedy the breach of this Agreement, then the prevailing party will be awarded all reasonable litigation expenses, including attorney’s fees, in addition to any other remedies available.

16.10      Injunctive Relief.  Each of the parties recognizes that the damages which will arise out of a breach of Section 12 (“Confidential Information”) are of a special, unique and extraordinary character, and that monetary damages alone are an inadequate remedy.  Either party may therefore seek specific performance, including injunctive relief, for a breach of Section 12.

16.11      Governing Law; Venue.  This Agreement is governed by the laws of the United States of America and the State of Illinois, without giving effect to principles of conflicts of law.

16.12      Counterparts and Copied Signatures.  This Agreement may be executed in counterparts, all of which taken together shall constitute one single agreement between the parties.  A facsimile or PDF transmission of this Agreement’s executed signature page constitutes due and proper execution of this Agreement by the party signing that page.