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 acquisition and use of TechBridge Services and consists of the attached Terms and Conditions, and any attachments referencing this Agreement and executed by the parties (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 Services.
This Agreement was last updated on April 8, 2013 and is effective between TechBridge and the Customer as of the date that the Customer accepts this Agreement.
In addition to any capitalized terms defined elsewhere in the Agreement, the following capitalized terms mean the following
1.1. “Confidential Information” means trade secrets and any other information that is of value to its owner and treated as confidential; and in each case is marked “proprietary”, “confidential” or “private”.
1.2. “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 existing throughout the world.
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 item delivered by TechBridge as part of the Professional Services.
1.5. “Professional Services” means the work performed by TechBridge pursuant to a Statement of Work.
1.6. “Statement of Work” means a written work order referencing this Agreement and executed by the parties.
1.7. “Third Party Product” means any software, tool, or other item licensed or otherwise acquired by TechBridge from a third party.
2.1. Payment. Customer shall pay TechBridge the fees for the Professional Services 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. 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.
2.2. Expenses. Customer shall reimburse TechBridge for all expenses (such as travel and living expenses) reasonably incurred in rendering Professional Services 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.
2.3. 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.
3.1. Nondisclosure. Confidential Information includes all nonpublic information pertaining to client and provider and their supplier’s software and systems, 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.
Except as expressly provided in this Agreement, 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.
LIMITATION OF LIABILITY.
5.1. Liability Cap. The aggregate liability of a party under this Agreement is limited to amount paid to TechBridge under this Agreement. The limitation of liability in this Section shall not apply to damages caused by TechBridge’s negligence, willful misconduct or violations of law. In addition, such limitation shall not apply to a party’s breaches of confidentiality obligations or violations of the other party’s Intellectual Property Rights under this Agreement.
5.2. Consequential Damages. Except for damages arising from gross negligence or willful misconduct or 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.
6.1. Deliverables. TechBridge warrants to Customer for a period of 30 days after delivery of a Deliverable that the Deliverable will conform in all material respects with the specifications for the Deliverable in the applicable Statement of Work. If Customer notifies TechBridge of a nonconforming Deliverable 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 (e.g., based upon the value of Customer’s actual use of, or any benefits received by Customer with respect to, the applicable Deliverable), whereupon Customer shall return all copies of the nonconforming Deliverable. 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 or any other items furnished by TechBridge in connection with the Professional Services are free from errors or defects.
6.2. Third-Party Products. The warranty in Section 6.1 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.
7.1. Term. The initial term of this Professional Services Attachment begins on the date of its execution and for 12 months thereafter. The term will automatically renew for consecutive one year renewal terms unless a party notifies the other party in writing of its nonrenewal at least 90 days prior to the contract end date.
7.2. 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 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) 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.
d) 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.
7.3. 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 under this Agreement to Customer will immediately cease; and (c) the following provisions survive: Sections 2-6, 7.3, 7.4 and 11-15 of these Terms and Conditions and any provisions of the Attachments which by their terms provide that they survive termination.
7.4. 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’s is not obligated to perform any Professional Services under the Statement of Work after the effective date of the termination; (d) Customer shall pay TechBridge for all Professional Services performed 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.
Within a reasonable time after the execution of this Agreement, TechBridge shall 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.
9.1. Customer Responsibilities. Customer shall cooperate with TechBridge in TechBridge’s performance of Professional Services and shall perform those tasks and fulfill those responsibilities specified in the applicable Statement of Work and this Professional Services Attachment. 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 and Deliverables meet Customer’s requirements, and (c) for its compliance with all applicable laws.
9.2. Customer-Furnished Items. Customer shall provide TechBridge access to Customer-Furnished Items as reasonably required for the performance of the Professional Services. TechBridge may use the Customer-Furnished Items as reasonably required for the performance of the Professional Services 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 Professional Services Attachment. 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 5.1 of the Terms and Conditions.
10.1. General. TechBridge shall provide the Professional Services to Customer as described in a Statements of Work executed by the parties. Each Statement of Work will be successively numbered.
10.2. 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.
10.3. 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.
10.4. 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.
RIGHTS IN DELIVERABLES.
11.1. TechBridge Items. “TechBridge Item” means any portion of a Deliverable other than Third Party Products and Customer-Furnished Items. Customer acknowledges that TechBridge or its licensors own all right, title, and interest in the TechBridge Items, including all Intellectual Property Rights. 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.
11.2. License. Unless otherwise specified in a Statement of Work, the following provisions govern use of the TechBridge Items by Customer. 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 this Professional Services Attachment 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.
11.3. 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 product.
11.4. 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 Professional Services, 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.
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.
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). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant contact designated in the appropriate Statement of Work.
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.
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 12 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. 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.