TERMS AND CONDITIONS
These Terms and Conditions are entered by and between TTL Solutions, Inc., an Iowa corporation doing business as Total Solutions, with its principal office at 4453 E. 56th Street, Davenport, Iowa 52807 (“Provider”) and the “Customer” identified below, and are effective upon the date of the Customer’s signature (the “Effective Date”).
1) PROVIDER OBLIGATIONS AND RESPONSIBILITIES
Subject to these Terms and Conditions, Provider shall be responsible for the following:
i) Services. Provider will provide to Customer the project management, implementation, training, documentation, troubleshooting, and consulting services described on any Statement of Work signed by both Provider and Customer (“Services”). Each signed Statement of Work is incorporated into these Terms by reference.
ii) Documentation of Services. Provider will provide Customer with a monthly invoice documenting the Services performed. The information provided by Provider will include, by department, the tasks performed and elapsed time.
iii) Work Hours. Unless otherwise specified in the applicable Statement of Work, Provider’s personnel hours for the aforementioned Services are between 7:00 a.m. and 5:30 p.m. CST Monday through Friday, excluding holidays.
iv) After Hours. Unless otherwise specified in the applicable Statement of Work, Provider’s after hours for the aforementioned Services are between 5:31 p.m. and 6:59 a.m. CST Monday through Friday excluding holidays.
v) Insurance. To cover the acts of its personnel related to Services rendered, Provider shall at all times during the term of this agreement have and maintain general liability insurance having a minimum coverage level of $1 Million General Liability and worker’s compensation insurance meeting statutory requirements.
vi) Security. Provider personnel will maintain work practices that adhere to the Customer’s written corporate security policies and standards that Customer has communicated to Provider.
2) CUSTOMER OBLIGATIONS AND RESPONSIBILITIES
Customer Staff Contact. Customer shall provide a staff person to assist Provider personnel in coordinating Provider efforts under this agreement. This Customer staff person shall be available throughout the term of this agreement. This person will also act as a central contact between Provider personnel and Customer personnel.
3) MUTUAL OBLIGATIONS AND RESPONSIBILITIES
Hiring of Provider or Customer Personnel. Neither Provider nor Customer is an employment agency or in the “temp-to-hire” business. Any Provider or Customer personnel are trained, and their expertise maintained, at considerable cost to Provider and Customer, respectively. Each party accordingly requests that the other party NOT solicit the personnel of the other party with which it has contact pursuant to this agreement to work directly for it or its affiliates, without the prior written consent of the other party. In the event that the Customer does want to hire an employee of the Provider, Provider shall charge, and Customer agrees to pay, a fee equal to 65% of the employee’s annual salary if less than one year, or 40% of the employee’s annual salary if greater than one year.
4) RATES AND TRAVEL EXPENSES
Provider’s rate(s) shall be set forth in the applicable Statement of Work or in the attached Appendix. The expenses for which Customer shall reimburse Provider shall be set forth in the applicable Statement of Work.
i) Terms and Conditions. Payment is due within fifteen (15) days after receipt of the applicable invoice (subject to conformance with Section 1(ii)). Invoices properly issued and not paid within these terms may result, in Provider’s sole discretion, in discontinuance of all services until the payments have been made. A surcharge of 1.5% per month will be applied to all overdue amounts in excess of 30 days.
ii) Taxes. Customer shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, provincial or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this agreement, excluding taxes on Provider’s net income. Customer shall promptly pay to Provider an amount equal to any such items actually paid and required by law to be paid, or required to be collected, by Provider.
6) OWNERSHIP OF DELIVERABLES
i) Each Statement of Work will indicate whether Section 6 (i)(A) or 6(i)(B) applies in respect to ownership of any deliverables and related materials resulting from Provider’s performance of the Services for Customer (“Deliverables”).
(A) Ownership by Customer. As between Customer and Provider, and except as set forth in subsections 6(ii) and 6(iv) below, all right, title and interest, including all copyrights and any other intellectual property rights, in and to the Deliverables provided by Provider for Customer under this Agreement shall be the property of Customer. Provider agrees that any contribution by Provider or its employees to the creation of Deliverables shall be considered works made for hire as defined in Section 101 of the Copyright Act of 1976 and that such works shall, upon their creation, be owned exclusively by Customer. To the extent that any such works may not be considered works made for hire, Provider agrees to assign and, upon their creation, automatically assigns to Customer the ownership of such works, including copyright interests and any other intellectual property therein, without the necessity of any further consideration.
(B) Ownership by Provider. As between Customer and Provider, all right, title and interest, including all copyrights and any other intellectual property rights, in and to the Deliverables provided by Provider for Customer under this Agreement, alone or in combination with Customer or its employees, shall at all times be and remain the exclusive property of Provider, except as otherwise provided in subsections (6)(iii) and (6)(iv) below. Provider agrees to grant and, upon their creation, automatically grants to Customer a worldwide, perpetual, irrevocable, royalty-free, non-sublicensable, nonexclusive and transferable license to use any Deliverables (subject only to any restrictions specified in the applicable Statement of Work), without the necessity of any further consideration. No other rights under such laws or treaties are transferred to Customer.
ii) Works of Provider. Provider hereby reserves and retains ownership of the works which Provider created before entering into this agreement, or which Provider created outside the scope of this agreement and without use of any Customer information. With respect to such works, and without further charge, Provider hereby grants Customer a worldwide, perpetual, irrevocable, royalty-free, non-sublicensable, nonexclusive and transferable license to use such works to the extent the works are incorporated into the Deliverables.
iii) Works of Customer. Provider hereby acknowledges and agrees that, except as expressly stated in this agreement, Customer shall retain all ownership of all works developed, created or acquired by Customer and nothing herein shall transfer to Provider any right with respect to any copyright interests or any other intellectual property held by Customer. Customer hereby grants Provider a license to use such works to the extent necessary or desirable for Provider to provide the Services to Customer contemplated by this agreement and any Statement of Work.
iv) Residuals. It is mutually acknowledged that, during the normal course of their dealings with each other and the Deliverables under this Agreement, each party and its personnel and agents may become acquainted with ideas, concepts, know-how, methods, techniques, processes, skills, and adaptations pertaining to the Deliverables, including those which the other party considers to be proprietary or trade secret. Notwithstanding anything in this Agreement to the contrary, and regardless of any termination of this Agreement, each party shall be entitled to use, disclose and otherwise employ any ideas, concept, know-how, methods, techniques, processes, and skills retained in the unaided memory of its employees and personnel, and adaptations, including generalized features of the sequence, structure and organization of any works of authorship retained in the unaided memory of its employees and personnel, in conducting its business (including providing services or creating programming or materials for others), and the other party shall not assert against such party or its personnel any prohibition or restrain from so doing.
v) Third-Party Interests. Customer’s interests in and obligations with respect to any programming, materials, or data to be obtained from third-party vendors, whether or not obtained with the assistance of Provider, shall be determined in accordance with the agreements and policies of such vendors. If any portion of the Deliverables will incorporate any programming, materials, or data owned by a third-party vendor, Provider will disclose on the applicable Statement of Work, to the extent practicable, the vendor and the portion subject to the vendor’s rights.
vi) Improvements. All rights, title, and interest to any materials, concepts and techniques developed by Provider, alone or in conjunction with Customer or its employees, during the course of any Statement of Work between Provider and Customer (the “Improvements”) shall belong to Provider. Provider hereby grants to Customer a worldwide, royalty-free, non-sublicensable, nonexclusive license to use the Improvements to the extent they are incorporated into the Deliverables for so long as Customer rightfully possesses the Deliverables. Customer shall not sell, disclose, or sublicense the Improvements without the prior written approval of Provider.
i) PROVIDER IS NEITHER A HARDWARE MANUFACTURER NOR A SOFTWARE DEVELOPER BUT A RESELLER, INTEGRATOR AND TECHNOLOGY MANAGEMENT SERVICE PROVIDER. ACCORDINGLY, PROVIDER DOES NOT PROVIDE ITS OWN WARRANTIES FOR THIRD PARTY HARDWARE AND/OR SOFTWARE, BUT MERELY ASSIGNS TO ITS CUSTOMERS THE WARRANTIES, IF ANY, PROVIDED BY THE MANUFACTURER OR SUPPLIER OF THE THIRD PARTY HARDWARE AND/OR SOFTWARE THAT THE PROVIDER RESELLS OR SUB-LICENSES, TO THE EXTENT SUCH WARRANTIES ARE TRANSFERRABLE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER DOES NOT OFFER, AND SPECIFICALLY DISCLAIMS, ANY WARRANTY OF ITS OWN, EXPRESS OR IMPLIED.
ii) Services Warranty. Provider warrants that the Services will be performed in a professional and workmanlike manner consistent with customary practice in the industry. Should a failure to comply with this warranty appear within ninety (90) days after the date of completion of all Services or work covered by the applicable Statement of Work, Provider shall, if promptly notified in writing, at its option, either provide the Services anew or refund to Customer the price charged for such non-conforming Services or work (and any other Services or work, the utility of which is materially affected by such non-conforming Services or work). Such re-performance or refund shall be Customer’s exclusive remedy and shall constitute fulfillment of all liabilities of Provider with respect to any nonconformity of or defect or deficiency in Services furnished to Customer.
iii) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL WARRANTIES OF QUALITY AND PERFORMANCE, WRITTEN, ORAL OR IMPLIED; ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.
8) LIMITATION OF REMEDIES AND LIABILITY
i) Exclusive Remedies. Except for Provider’s indemnity obligations under Section 8(iii) and confidentiality obligations under Section 9(vii), Provider’s liability to Customer on any claim, whether in contract, negligence, tort, strict liability or otherwise, arising in whole or in part out of Services performed or utilized, or Deliverables provided or utilized, under this agreement, shall in no case exceed the lesser of the fees paid to Provider under this agreement or the fees paid to the Provider for the portion of Services that gave rise to the claim. These remedies are exclusive and in lieu of all other remedies available at law or in equity for any act performed in connection with this Agreement, or for any breach of this Agreement, whether brought under a theory of tort liability, contract liability, or any other theory.
ii) Limitation of Liability. EXCEPT FOR THE PARTIES’ CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9(vii), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER FOR BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY OR OTHER THEORIES OF LAW. Without limiting the generality of the foregoing, Provider shall have no responsibility to compensate Customer for delays in or loss of use of equipment; loss or miscalculation of data; loss of revenue or increased costs; loss of facilities; loss or delays in services, or claims of Customer’s customers or other third parties to whom it provides goods or services; loss of profits or revenue; cost of substitute goods, facilities or services; downtime costs or delays. The parties acknowledge that the indemnification obligations under Sections 8(iii) and 8(iv) with respect to third party claims represent direct claims, irrespective of the theory of liability asserted by the third party, and are not affected by this Section 8(ii).
iii) Indemnification by Provider. Provider shall be solely responsible for, and shall defend, hold harmless and indemnify Customer, its affiliates and their respective officers, directors, trustees, shareholders, employees and agents from and against any claims, losses, damages, liabilities, fines, penalties, and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) that arise out of or result from (1) personal injury (including death) or property damage arising from the actual or alleged negligence or willful misconduct of Provider or its agents, or (2) actual or alleged infringement of any patent, copyright, trademark or trade secret right, or other intellectual property right, private right, or any other proprietary or personal interest of any third party by the Services or Deliverables, except to the extent the alleged infringement arises out of any work or component provided by or through Customer.
iv) Indemnification by Customer. Customer shall be solely responsible for, and shall defend, hold harmless, and indemnify Provider, its affiliates and their respective officers, directors, trustees, shareholders, employees and agents from and against liabilities, fines, penalties, and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) that arise out of or result from (1) personal injury (including death) or property damage arising from the actual or alleged negligence or willful misconduct of Customer or its agents, or (2) actual or alleged infringement of any patent, copyright, trademark or trade secret right, or other intellectual property right, private right, or any other proprietary or personal interest of any third party by any work or component provided by or through Customer for the Services or Deliverables.
i) Amendments. This Agreement shall only be changed by a written amendment to this Agreement executed by both parties by the below duly authorized representatives.
ii) Authorized Representatives. The signatories below represent and warrant that they are authorized by their respective organizations to enter this Agreement.
iii) Facsimile Execution. This Agreement may be validly executed by the signing of a facsimile copy of this Agreement. Either the fully executed facsimile copy or a conforming executed original shall be evidence of the existence of this Agreement.
iv) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same Agreement.
v) Exchange of Provider Personnel. The Customer shall give five (5) days written notice if the services of a Provider employee are no longer needed unless otherwise stated in the relevant Statement of Work. Conversely, Provider shall provide the Customer thirty (30) days written notice if Provider chooses to place an employee at a different Customer.
vi) Force Majeure. Each party shall be excused from performance for any period and to the extent that the party is prevented from performing any services, in the whole or in part, as a result of delays caused by the other party, an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance, or other cause beyond that party’s reasonable control, including failure or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment. Such nonperformance shall not be a default or a ground for termination, provided that the other party may terminate this Agreement without liability if such force majeure continues for more than 30 days.
vii) Confidentiality. In connection with this Agreement, each party (“Discloser”) may disclose to the other (“Recipient”) certain non-public or proprietary information, which is identified as confidential or the confidential nature of which is reasonably apparent (“Confidential Information”), provided that the definition of “Confidential Information” shall not include any information that: (i) is or subsequently becomes publicly available without a breach of this Agreement ; (ii) was already known to Recipient free of any obligation of confidentiality prior to the Discloser’s disclosure of such information; (iii) becomes known to Recipient from a source other than the Discloser and other than by a breach of an obligation of confidentiality owed to Discloser by such source; or (iv) is independently developed by Recipient without reference or access to Confidential Information. Recipient shall protect the confidentiality of the Confidential Information using at least the same measures it takes to protect its own confidential information of like kind, but not less than a reasonable degree of care, and shall restrict access to Confidential Information to personnel on a need to know basis, who are obligated to protect such Confidential Information in a manner at least as stringent as the restrictions set forth in this Agreement and who have been advised of the confidentiality provisions of this Agreement. Recipient agrees that it shall not, without Discloser’s authorization, disclose the Confidential Information to any party or use such Confidential Information for its own benefit except as contemplated by this Agreement. For purposes of this Section, Customer hereby authorizes Provider to disclose Confidential Information to third parties engaged by Provider to the extent necessary or desirable to render the Services to Customer.
Without limiting the foregoing, Recipient will not reproduce or copy any Confidential Information, except as may be required to perform the Services, and will store such Confidential Information in a secure place. Confidential Information shall be returned or destroyed by Recipient upon the earlier of: (i) the completion of the Services; or (ii) Discloser’s request, provided that nothing herein shall require Customer to return or destroy any Deliverables. In the event Recipient receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information, Recipient shall promptly notify Discloser of such receipt and tender to it the defense of such demand. Unless the demand shall have been timely quashed or extended, Recipient shall thereafter be entitled to comply with such demand when and to the extent required by law. If requested by Discloser, Recipient shall provide reasonable cooperation (at the expense of Discloser) in the defense of such a demand.
viii) Term and Termination. This Agreement shall remain in full force and effect until either (a) the completion of the Services in a contract or a Statement Work and delivery of all Deliverables and requirements, or (b) terminated by either party upon any breach by the other party which is not cured within thirty (30) days after written notice of such breach identifying this agreement by title and date and specifying the breach, or (c) terminated by Customer without cause, upon not less than ninety (90) days prior written notice to Provider specifically identifying this agreement by title and date. Termination of this Agreement shall not affect the respective rights and responsibilities of the parties arising prior to such termination. Sections 6, 7, 8 and 9 shall survive any expiration or termination of this Agreement.
ix) Assignment. Any assignment of this Agreement or any rights thereunder, without prior written consent of both parties by duly authorized representatives, shall be void. Notwithstanding the forgoing, Customer may assign any rights acquired by it pursuant to Section 6 with the tangible embodiment of such rights.
x) Notices. Any notice, request, demand or other communication required or permitted by, or relating to, the terms of this Agreement shall be deemed to be properly given only when delivered to the United States Postal Service, sent certified mail–return receipt requested, or upon confirmation of receipt by facsimile, addressed to the party to receive notice as previously requested by notice hereunder or, otherwise, as provided in conjunction with such party’s signature below.
xi) Choice of Law. This Agreement shall be governed by and construed in accordance with the law, without reference to principles of conflicts of laws, of the State of Iowa.
xii) Entire Agreement. This Agreement, together with all Statements of Work incorporated herein, constitutes the entire Agreement between the parties, superseding all prior oral or written negotiations, representations, understandings and agreements, on the subject hereof and there are no conditions to this Agreement which are not expressed herein.
10) PROJECT COMPLETION.
Customer shall execute and deliver a Project Completion Form upon Total Solutions’ completion of the services. Customer’s failure to (i) deliver such Project Completion Report within 10 business days from presentation by Total Solutions or (ii) notify Total Solutions within such 10-day period as to the reason for its failure to deliver such Project Completion Report, shall be deemed to be acceptance by Customer.
The parties hereto acknowledge that they have read and agree to the terms set forth in these Terms and Conditions and have caused them to be executed by their duly authorized representatives.