Master Customer Agreement

This Master Customer Agreement (the “Agreement”) is between TechBridge Inc., a Georgia 501(c)(3) corporation (“TechBridge”) and the company or other legal entity which is accepting this Agreement, and Affiliates of that company or entity (“Customer”).  This Agreement governs the provision, acquisition and use of TechBridge Products and Professional Services and consists of the attached Terms and Conditions, and any attachments referencing this Agreement and executed by the parties, including any Statement of Work (each, an “Attachment”).  This Agreement constitutes the entire agreement between the parties on the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, negotiations, representations and proposals with respect to the subject matter of this Agreement.

These General Terms and Conditions (“Terms and Conditions”) between TechBridge and Customer are incorporated into the Agreement. These Terms and Conditions contain provisions that are common to all Attachments. Accordingly, in the case of any conflict between these Terms and Conditions and any Attachment, the Attachment shall control, unless otherwise expressly stated to the contrary.

By accepting this Agreement, either by clicking a box indicating Customer acceptance or by executing a Statement of Work that references this Agreement on behalf of the Customer, the Customer represents the authority to bind such entity to these Terms and Conditions.  If the Customer does not agree with these Terms and Conditions, then the Customer must not accept this Agreement and may not use the Offerings.

This Agreement is effective between TechBridge and the Customer as of the date that the Customer accepts this Agreement.

1.    DEFINITIONS. In addition to any capitalized terms defined elsewhere in the Agreement, the following capitalized terms mean the following

 

1.1.      “Authorized User” means the individuals authorized to use the Products pursuant to Section 4 and the other terms and conditions of this Agreement as identified in the applicable Statement of Work.

 

1.2.     “Confidential Information” means trade secrets and any other information that is of value to its owner and treated as confidential or proprietary or that, based on the circumstances of the disclosure or the nature of the information, a reasonable person would understand that such information should be treated as confidential;.

1.3.      “Customer-Furnished Item” means any software, hardware, equipment, data, document, furniture, facilities, utility service (e.g., electric, telephone or communications) or other items to be provided to TechBridge by Customer or on its behalf.

1.4.      “Deliverable” means any software, documentation, work of authorship, or other materials delivered by TechBridge as part of the Professional Services.

1.5.      “Documentation” means any and all manuals, instructions and other documents and materials that TechBridge provides or makes available to Customer in any form or medium which describe the functionality, components, features or requirements of the Products, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

1.6.      “Intellectual Property Rights” means copyrights, patents, trademarks, trade names, service marks, trade secrets and other legal rights in confidential information, moral rights, and other proprietary rights, whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection existing throughout the world.

1.7.      “Licensed Software” means the TechBridge software, and any third-party or other software, licensed and distributed to Customer for installation and use on a device or network.

1.8.      “Offerings” means the Professional Services and Products (together with any corresponding Documentation).

1.9.      “Open-Source Components” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.

1.10.    “Permitted Use” means use of the Products by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations (unless such other Permitted Use is expressly set forth in the applicable Statement of Work) within the Territory.

1.11.    “Products” means the software products licensed or provided to Customer by TechBridge pursuant to a Statement of Work. As specified in the applicable Statement of Work, Products may be either SaaS Software or Licensed Software.

1.12.    “Professional Services” means any professional or other services (other than the Products) performed by TechBridge pursuant to a Statement of Work governed by this Agreement.

1.13.     “SaaS Software” means the TechBridge software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that TechBridge provides remote access to and use of pursuant to a Statement of Work or otherwise as part of the Offerings.

1.14.    “Statement of Work” means a written work order referencing this Agreement and executed by the parties, which may include either Professional Services or Products.

1.15.    “Territory” means the geographic territory set forth in the applicable Statement of Work.

1.16.    “Third Party Product” means any software, tool, or other item relating to the Offerings that is not proprietary to TechBridge.

2.         PROFESSIONAL SERVICES.

2.1.      General. TechBridge shall provide the Professional Services to Customer as described in one or more Statements of Work executed by the parties.  Each Statement of Work will be successively numbered.

 

2.2.      Change Control. If a party desires a change in the scope of work or otherwise regarding the Statement of Work, the party shall issue a written Change Request Form to the other party.  The mutual Point of Contacts shall then prepare an impact analysis, including impact on cost and schedule, review and agree on action to be taken, and the parties shall execute a Change Order documenting the change and the parties’ agreement to the change.  Each executed Change Order complying with this Section will be deemed to be an amendment to the applicable Statement of Work.

 

2.3.   Delivery and Acceptance. Delivery of Deliverables will be made as specified in the applicable Statement of Work. Except to the extent a Statement of Work contains specific acceptance provisions, each Deliverable provided to the Customer for approval will be deemed accepted on the earlier to occur of the following: (a) within ten days after delivery unless Customer has notified TechBridge in writing detailing a basis for not approving a Deliverable, or (b) Customer has used the Deliverable in a production environment.

 

2.4.   Escalation Procedure. If a party determines it is not getting adequate resolution to an issue which may have material impact on the successful performance of a Statement of Work, then:  (a) first, the party shall bring the issue to the attention of the other party’s designated Point of Contact; (b) if the Point of Contact is unable or unwilling to address the issue, the party shall bring the issue to the attention of the Point of Contact’s supervisor; and (c) if the issue remains unresolved after 10 business days, the party may insist the issue be raised to a senior executive up to and including the Executive Director / CEO.

 

3.   RIGHTS IN DELIVERABLES.

 

3.1.   TechBridge Items. “TechBridge Item” means any portion of a Deliverable other than Third Party Products, Customer-Furnished Items, or Products separately licensed or provided. Customer acknowledges that TechBridge or its licensors own all right, title, and interest in the TechBridge Items, including all Intellectual Property Rights.  To the extent Customer has any rights in the TechBridge Item, Customer hereby assigns to TechBridge, without further consideration, ownership of all Intellectual Property Rights in the TechBridge Items and will take further actions upon request to transfer, perfect and defend TechBridge’s ownership of the TechBridge Items.

 

3.2.   License. Unless otherwise specified in a Statement of Work, the following provisions govern use of the TechBridge Items by Customer. For clarity, the following provisions to not apply to separately licensed Products. TechBridge reserves all rights in the TechBridge Items except for the limited license rights set forth below.

a)            Where the TechBridge Item consists of new software, code, routines or the like licensed under an Application Attachment, or the modification or addition to software licensed to Customer under an Application Attachment or under a third party license agreement, the license and other restrictions in the Application Attachment or third party license agreement pertaining to the software govern use by Customer of the TechBridge Item, and nothing in these Terms and Conditions or any Statement of Work includes the grant of any additional rights in the TechBridge Item.

b)            Where the TechBridge Item is something other than described in paragraph (a), TechBridge grants to Customer a perpetual, nonexclusive, nontransferable license to copy, modify, display, distribute and otherwise use the TechBridge Item.

3.3.   Third Party Products. Unless otherwise indicated in a Statement of Work, any Third Party Product provided pursuant to this Professional Services Attachment is licensed to Customer according to the terms of the end user license agreement accompanying the Third Party Product.

 

3.4.   Residuals. TechBridge will be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, methodologies, and techniques within the scope of its consulting practice that are acquired in the course of providing the Offerings, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of TechBridge. In addition, TechBridge is not precluded from developing for itself, or for others, materials that are competitive with the Deliverables, irrespective of their similarity to the Deliverables, provided this is done without use of Customer’s Confidential Information.

 

4.         PRODUCTS.

 

4.1       License to Licensed Software. Subject to the terms and conditions of this Agreement and conditioned on Customer’s and its Authorized Users’ compliance therewith, if a Statement of Work includes a license to Licensed Software, TechBridge hereby grants to Customer a non-exclusive, non-sublicensable and non-transferable, limited license to use the Products and corresponding Documentation solely for the Permitted Use during the term of the applicable Statement of Work. If a Statement of Work includes a license to Licensed Software, Customer may install, use and run one copy of the applicable Product on up to a number of computers equal to the number of Authorized Users or on Customer’s network for use by up to the number of Authorized User(s) at a time, as applicable and as further specified in the applicable Statement of Work. Customer may make one copy of the Licensed Software solely for testing, disaster recovery or archival purposes. Any copy of the Licensed Software made by Customer: (a) will remain the exclusive property of TechBridge; (b) be subject to the terms and conditions of this Agreement; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original.

 

4.2       Rights to SaaS Software. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the term of the applicable Statement of Work, if a Statement of Work includes the provision of SaaS Software, TechBridge shall use commercially reasonable efforts to provide to Customer and its Authorized Users the SaaS Software set forth in the applicable Statement of Work, including to host, manage, operate and maintain the SaaS Software for remote electronic access and use by Customer and its Authorized Users. TechBridge has and will retain sole control over the operation, provision, maintenance and management of the SaaS Software. Subject to and conditioned on Customer’s payment of the all applicable fees and compliance and performance in accordance with all other terms and conditions of this Agreement, TechBridge hereby authorizes Customer to access and use, solely during the term of the applicable Statement of Work and solely for the Permitted Use, the SaaS Software and related Documentation (as TechBridge may supply or make available to Customer) by and through Authorized Users in accordance with the Documentation, and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.

 

4.3       Customer Obligations.  Customer shall at all times during the term of each applicable Statement of Work: (a) set up, maintain and operate in good repair and in accordance with the Documentation all Customer systems on or through which the Products are accessed or used; (b) provide TechBridge personnel with such access to Customer’s premises and Customer systems as is necessary for TechBridge to provide the Products in accordance with the Documentation; and (c) provide all cooperation and assistance as TechBridge may reasonably request to enable TechBridge to exercise its rights and perform its obligations under and in connection with this Agreement. TechBridge is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement

 

4.4       Customer-Furnished Items. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer-Furnished Items: (a) to TechBridge, its subcontractors and TechBridge personnel as are necessary or useful to provide the Products; and (b) to TechBridge as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.

 

4.5       Restrictions. The total number of Authorized Users shall not exceed the number set forth under this Agreement and the applicable Statement of Work, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the license fees payable hereunder. Except as this Agreement expressly permits, Customer shall not, and shall not permit any other person to: (a) copy the Products, in whole or in part; (b) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Products; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Products to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (d) reverse engineer, disassemble, decompile, decode or adapt the Products, or otherwise attempt to derive or gain access to the source code of the Products, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the Products or Documentation; (f) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Products or Documentation; (g) use the Products in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable Law; (h) use the Products for purposes of: (i) benchmarking or competitive analysis of the Products; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to TechBridge’s detriment or commercial disadvantage; (i) input, upload, transmit or otherwise provide to or through the Products any virus, worm, malware or other malicious computer code, or (j) use the Products or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement. TechBridge may, directly or indirectly, by any lawful means, suspend or otherwise deny Customer’s, any Authorized User’s or any other person’s access to or use of all or any part of the Products, without incurring any resulting obligation or liability, for any breach of this Section.

 

4.6       Intellectual Property Rights. Customer acknowledges and agrees that the Products and Documentation are licensed, not sold, to Customer by TechBridge, and Customer does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Products or Documentation, or in any related Intellectual Property Rights. TechBridge and its licensors are and will remain the sole and exclusive owners of all right, title and interest in and to the Products and Documentation, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to Customer under this Agreement. Customer hereby unconditionally and irrevocably assigns, and upon future creation automatically assigns, to TechBridge, its entire right, title and interest in and to any Intellectual Property Rights that Customer may now or hereafter have in or relating to the Products or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Products or Documentation.

 

4.7       Open-Source Licenses. If any Product includes Open-Source Components, any use of the Open-Source Components by Customer shall be governed by, and subject to, the terms and conditions of the license governing such Open-Source Component.

 

5.         COMPENSATION.

5.1.      Fees.  Customer shall pay TechBridge the fees for the Offerings as described in the applicable Statement of Work. For any Professional Services that TechBridge performs pursuant to the parties’ agreement or understanding and for which fees are not specified in a Statement of Work, Customer shall pay TechBridge at TechBridge’s then prevailing time and materials rates.  With regard to the Products, if a Statement of Work is renewed, Customer shall pay the then-current standard license fees that Customer charges for the Products during such renewal term.

 

5.2       Payment.  Unless otherwise indicated in an Attachment, Customer shall pay TechBridge the applicable fees and other amounts no later than 30 days after the date of the invoice stating the fee or amount.  If Customer fails to make a payment by the payment date, Customer shall pay TechBridge interest at a rate equal to the lower of 1.5% per month, compounded monthly, or the maximum rate permitted by law.

 

5.3.      Expenses.  Customer shall reimburse TechBridge for all expenses (such as travel and living expenses) reasonably incurred in rendering the Offerings to Customer in accordance with the Statement of Work.  If work for Customer requires that a TechBridge resource perform Professional Services outside the city, state, province, or country in which the TechBridge resource is based, Customer shall reimburse TechBridge for any increased tax costs incurred by the TechBridge resource and TechBridge.

 

5.4.      Taxes.  Amounts stated in this Agreement are in United States dollars and are net amounts to be received by TechBridge exclusive of all taxes.  If any tax or duty is imposed as a result of any transaction under this Agreement, Customer shall pay the tax or duty directly or shall reimburse TechBridge for any withholding required of TechBridge. If Customer claims an exemption from any taxes being imposed on an amount owed, Customer shall provide TechBridge with the applicable valid exemption certificates in a timely manner and shall provide TechBridge with all information and assistance necessary to recuperate taxes paid on the amount.

 

6.        CONFIDENTIALITY.  Confidential Information includes all nonpublic information pertaining to a party or their suppliers or licensors, whether or not marked as confidential. Confidential Information does not include information which (a) was in the public domain at the time it was disclosed or becomes in the public domain through no fault of the receiver; (b) can be shown by written documentation to have been known to the receiver without restriction at the time of disclosure; (c) was independently developed by the receiver without any use of the discloser’s Confidential Information; or (d) becomes known to the receiver without restriction from a source other than the discloser without breach of any confidentiality agreement and otherwise not in violation of the discloser’s rights. Each party shall treat the Confidential Information of the other party in a confidential manner with the same degree of care as it treats its own proprietary information of like importance, but with no less than a reasonable degree of care.  The receiver shall not use or disclose the Confidential Information for any purpose other than as expressly provided in this Agreement. A party may disclose Confidential Information pursuant to the order or requirement of a court or other government body, but it shall notify the other party in advance to enable the other party to take appropriate protective measures. For Confidential Information constituting a trade secret, the obligations in this Section will continue for as long as the information constitutes a trade secret under applicable law.  For all other Confidential Information, the obligations in this Section will continue for three years after termination of this Agreement.

 

7.        LIMITATION OF LIABILITY.

 

7.1.      Liability Cap. The aggregate liability of TECHBRIDGE under this Agreement is limited to amountS paid to TechBridge under THE APPLICABLE STATEMENT OF WORK DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

 

7.2.      Consequential Damages. Except for damages arising from violation of its confidentiality obligations hereunder, each party agrees that the other party’s liability (under breach of contract, tort (including negligence), strict liability or otherwise), if any, for any damages relating to this agreement shall not include any lost revenues or other indirect, incidental or consequential damages, even if the first party has been advised of the possibility of such damages.

 

8.       LIMITED WARRANTIES; DISCLAIMER.

 

8.1.      Deliverables. TechBridge warrants to Customer for a period of 30 days after delivery of a Deliverable or Product that the Deliverable or Product will conform in all material respects with the specifications for the Deliverable in the applicable Statement of Work or, in the case of the Products, the Documentation. If Customer notifies TechBridge of a nonconforming Deliverable or Product within the warranty period, TechBridge shall use commercially reasonable efforts to correct the nonconformity. If after using commercially reasonable efforts TechBridge is unable to correct the nonconformity, TechBridge may refund an equitable portion of the fee paid by Customer for the nonconforming Deliverable or Product (e.g., based upon the value of Customer’s actual use of, or any benefits received by Customer with respect to, the applicable Deliverable or Product), whereupon Customer shall return all copies of the nonconforming Deliverable or Product.  This warranty does not apply to any noncompliance resulting from any: (a) Customer-Furnished Items; (b) use not in accordance with this Agreement or applicable Statement of Work, documentation or design; (c) modification, misuse or other action of Customer or any third party; or (d) use or combination with any hardware, software, services or other items not specified or approved by TechBridge in writing. TechBridge does not warrant that the Deliverables, Products or any other items furnished by TechBridge in connection with the Offerings are free from errors or defects. TechBridge’s sole liability and Customer’s sole and exclusive remedy for TechBridge ‘s breach of this Section 8.1 are TechBridge ‘s obligations under this Section 8.1.

 

8.2.      Third Party Products. The warranty in Section 8.1 does not apply to Third Party Products. Except as otherwise specified in a Statement of Work, the warranties, obligations and liabilities of TechBridge and the remedies of Customer with respect to a Third Party Product will be limited to whatever recourse may be available against the third party provider of the Third Party Products and are subject to the additional restrictions and other limitations as may be set forth in the applicable Statements of Work.

 

8.3       Disclaimer. Except as expressly provided in these Terms and ConditionS, TechBridge does not make any, and expressly disclaims all, warranties, representations, conditions, or guaranties, including any implied warranty of merchantability, fitness for a particular purpose, system integration, content accuracy, noninfringement, or of error-free and uninterrupted use.

 

9.        TERMINATION. 

 

9.1.      Term.   The initial term of this Agreement begins on the date of its execution continues for so long as any Statement of Work remains outstanding and effective. Each Statement of Work shall begin on its date of execution and continue for 12 months thereafter unless a separate term is set forth on the Statement of Work. Unless otherwise set forth in the applicable Statement of Work, each Statement of Work will automatically renew for consecutive one year renewal terms unless a party notifies the other party in writing of its intent to not renew at least 90 days’ prior to the end of the then-current term under such SOW.

 

9.2.      Termination.  This Agreement may be terminated as follows:

a)            by either party upon written notice to the other if the other party materially breaches these Terms and Conditions (or any provision of a Statement of Work or other Attachment) and fails to remedy the material breach within 30 days after being given written notice specifying the breach; or

b)            by TechBridge immediately if Customer makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium; or

c)          in addition to the termination rights under Section 9.2(a), an individual Statement of Work may be terminated by either party upon written notice to the other party if the other party materially breaches such Statement of Work and fails to remedy the material breach within 30 days after being given written notice specifying the breach.

d)         an individual Statement of Work may be terminated by TechBridge upon written notice to Customer if Customer fails to pay any amount under the Statement of Work and does not cure the failure within 10 days after TechBridge notifies Customer in writing of the payment failure.

e)         by TechBridge for abusive, derogatory, or similarly unreasonable behavior directed towards any of TechBridge’s employees, agents, volunteers or contractors. TechBridge, at its sole discretion, may terminate individual Attachments only and not the Agreement.

9.3.      Effect of Termination. The termination of this Agreement terminates this Agreement as a whole, including all Attachments.  Unless otherwise expressly set forth in any Attachment, the termination of any Statement of Work terminates that Statement of Work only.  Upon termination of this Agreement, (a) Customer shall immediately return to TechBridge, or at TechBridge’s direction, destroy, all property of TechBridge or its suppliers, including, but not limited to, any Confidential Information of TechBridge, and all copies in Customer’s possession or control, and Customer shall provide TechBridge with a signed written statement certifying that it has returned or destroyed all such property; (b) all rights and licenses granted by TechBridge, and all obligations of Techbridge with regard to Professional Services, under this Agreement (including any Statement of Work or other Attachment) to Customer will immediately cease; and (c) the following provisions survive: Sections 1, 3, 4.4-4.7, 5-7, 8.2, 8.3, 9.3, 9.4, 10, and 12-16 of these Terms and Conditions and any provisions of the Attachments which by their terms provide that they survive termination.

 

9.4.     Effect of Statement of Work Termination. Upon termination of a Statement of Work, the following will apply unless otherwise specifically provided for in the applicable Statement of Work: (a) each party shall cooperate with the other to effect an orderly and expeditious termination of the parties’ activities under the terminated Statement of Work; (b) TechBridge shall return to Customer any and all Customer-Furnished Items delivered by Customer to TechBridge under the terminated Statement of Work; (c) TechBridge is not obligated to perform any Professional Services or provide access to any Products under the Statement of Work after the effective date of the termination and all licenses and rights granted to Products shall cease; (d) Customer shall pay TechBridge for all Professional Services performed and Products provided by TechBridge prior to the date of termination; and (e) Customer shall return to TechBridge all Deliverables for which it has not paid, and the licenses for those Deliverables terminate.

 

10.        PUBLICITY.  TechBridge may use Customer’s name, logo, or project description in marketing material without the prior written consent of Customer. TechBridge may use Customer’s name in alphabetical customer listings, provided there is no additional project information or other detail without Customer’s written approval. During the term of this Agreement neither party shall disparage or defame the other party, its products, or its professional staff or their abilities.

 

11.       CUSTOMER RESPONSIBILITIES.

 

11.1.      Customer Responsibilities. Customer shall cooperate with TechBridge in TechBridge’s performance of Professional Services and provision of Products and shall perform those tasks and fulfill those responsibilities specified in the applicable Statement of Work and this Agreement. Customer understands that TechBridge’s performance is dependent on Customer’s timely and effective performance of its responsibilities and its timely decisions and approvals. Failure by Customer to satisfy its responsibilities may require modifications to the schedule, pricing and other terms of the Statement of Work.  TechBridge will be entitled to rely on Customer’s decisions, information and approvals. Customer shall be responsible (a) for its operation and use of the Deliverables, (b) for ensuring that the scope of Professional Services, Deliverables and Products meet Customer’s requirements, and (c) for its compliance with all applicable laws.

 

11.2.      Customer-Furnished Items. Customer shall provide TechBridge access to Customer-Furnished Items as reasonably required for the performance of the Professional Services or provision of the Products. TechBridge may use the Customer-Furnished Items as reasonably required for the performance of the Professional Services, provision of the Products, and other obligations of TechBridge. Customer warrants that it has the right to make the Customer-Furnished Items available to TechBridge as described in this Agreement. Customer shall indemnify TechBridge for all claims, proceedings, liabilities, costs, damages and other losses arising from any claim that TechBridge’s use of the Customer-Furnished Items violates the rights of any third party.  This indemnification obligation is not subject to the liability cap in Section 7.1 of these Terms and Conditions.

 

12.     NONRECRUITMENT. During term of this Agreement and for a period of one year afterwards, neither party shall, whether directly or indirectly on its own account or on behalf of any other person, solicit the employment or services of those personnel of the other party who were introduced to such party as a result of the activities performed under this Agreement.  This provision does not apply to a party’s general solicitations for employment not specifically targeting the employees or independent contractors of the other party.

 

13.     NOTICES. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim), all to the address and other contact information provided in the applicable Statement of Work.

 

14.     DISPUTE RESOLUTION. Each party shall make diligent efforts through negotiation to settle any disputes arising out of this Agreement, including elevating the issues to its upper management levels.  If any controversy or claim arising out of this Agreement is not able to be settled by this negotiation, then the parties shall settle it by final and binding arbitration administered by a single arbitrator under the commercial arbitration rules of the American Arbitration Association. The parties shall hold the arbitration in Atlanta, Georgia, USA.  Judgment on the arbitration award may be entered in any court having jurisdiction.  The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this Section and without any abridgment of the powers of the arbitrator.

 

15.     INELIGIBLE ORGANIZATIONS. Organizations that require participation in religious services and/or education as a condition of receiving services.

 

16.     MISCELLANEOUS. This Agreement is governed by the laws of the State of Georgia without regard to its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Except for any payment obligations, a party is not liable for failure to perform its obligations if the failure is caused by an event outside its reasonable control. A party’s breach of its obligations with regards to the other party’s Intellectual Property Rights or Section 6 is deemed to cause irreparable harm for which it is difficult to determine damages and for which money damages alone are an inadequate remedy for the injuries suffered, and in such case the other party will be entitled to injunctive relief to enforce its rights, without an obligation to submit proof of the economic value of any damage or to post a bond or any other security. This Agreement binds the parties and their respective successors and assigns.  Neither party may assign this Agreement without the prior written consent of the other, except that TechBridge may assign its rights and obligations under this Agreement without the approval of Customer or to any person or entity that acquires all or substantially all of the assets of TechBridge or to successor in a merger or acquisition.  Any attempt by either party to assign or transfer any of the rights, duties, or obligations of this Agreement in violation of this Section is void and of no force or effect.  TechBridge may from time to time in its discretion engage third parties to perform its obligations under this Agreement. No waiver or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties.  No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy.  A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant.  The parties are independent contractors. Nothing in this Agreement constitutes a partnership between the parties or designates one party as the agent of the other.  If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other.  If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect.  The parties may execute this Agreement in several counterparts, all of which together constitute one agreement between the parties.